T.P. v. Mamaroneck Union Free Sch. Dist., No. 07-3705 (2d Cir. 2009)

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07-3705-cv T.P. v. Mamaroneck Union Free Sch. Dist. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 -------- 4 August Term, 2008 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 (Argued: December 2, 2008 Decided: February 3, 2009) 23 for the Southern District of New York (Brieant, J.) granting 24 summary judgment to Plaintiffs-Appellees on their claim for 25 reimbursement of educational expenses under the Individuals with 26 Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. 27 that Plaintiffs-Appellees have failed to show that Defendant- 28 Appellant s educational plan for their autistic child was 29 improperly predetermined, and that the district court erred in Docket No. 07-3705-cv -----------------------------------------------------------X T.P. and S.P., on behalf of S.P., Plaintiffs-Appellees, - v. MAMARONECK UNION FREE SCHOOL DISTRICT, Defendant-Appellant.* -----------------------------------------------------------X Before: JACOBS, Chief Judge, McLAUGHLIN and B.D. PARKER, Circuit Judges. Appeal from a judgment of the United States District Court * We hold The Clerk of the Court is directed to amend the official caption as set forth above. 1 failing to defer to the administrative experts who found that the 2 plan adequately addressed the child s transition into the 3 kindergarten classroom. 4 5 6 7 8 9 10 11 12 13 14 REVERSED and REMANDED. GARY S. MAYERSON, Mayerson & Associates, New York, NY, for Plaintiffs-Appellees. MARK C. RUSHFIELD, Shaw, Perelson, May & Lambert, LLP, Highland, NY, for Defendant-Appellant. PER CURIAM: The Mamaroneck Union Free School District ( Mamaroneck ) 15 appeals from a grant of summary judgment to Plaintiffs T.P. and 16 S.P. by the United States District Court for the Southern 17 District of New York (Brieant, J.). 18 Individuals with Disabilities Education Act ( IDEA ), 20 U.S.C. 19 §§ 1400 et seq., seeking reimbursement for educational services 20 they provided for their autistic child. 21 T.P. and S.P. sued under the T.P. and S.P. objected to Mamaroneck s plan for special- 22 education services for their son S.P. s kindergarten year. They 23 requested an administrative hearing to obtain reimbursement for 24 additional services they deemed necessary. 25 Impartial Hearing Officer ( IHO ) denied their claim, and a State 26 Review Officer ( SRO ) affirmed. 27 their claim in the United States District Court for the Southern After a hearing, an S.P. s parents then pursued 2 1 District of New York. 2 had violated both the procedural and substantive requirements of 3 the IDEA. 4 parents and awarded them reimbursement, as well as attorneys 5 fees and costs. 6 7 The district court held that Mamaroneck Accordingly, it granted summary judgment to the We reverse and remand with instructions to enter judgment in Mamaroneck s favor. BACKGROUND 8 9 S.P. is an autistic child who attends school in Mamaroneck. 10 Because of his disability, S.P. was entitled under the IDEA to a 11 free appropriate public education administered by Mamaroneck 12 according to an Individualized Education Program ( IEP ). 13 20 U.S.C. §§ 1412(a)(1)(A), 1414(d). 14 See In 2003-2004, S.P. attended a regular-education preschool 15 for 10 hours per week, where he was accompanied by a personal 16 aide. 17 analysis ( ABA ) therapy per week, 5 hours of ABA supervision, 18 and speech and occupational therapy. 19 principles used to increase or decrease behaviors. 20 funded these services pursuant to a settlement agreement after 21 S.P. s parents disagreed with Mamaroneck s proposed IEP. 22 23 At home, S.P. received 30-35 hours of applied behavioral ABA is a set of educational Mamaroneck In January 2004, Mamaroneck s Committee on Special Education (the Committee ), which included S.P. s parents, began 3 1 considering S.P. s transition into the school district for 2 kindergarten. 3 it in making recommendations for his IEP, and agreed to observe 4 him at his preschool and then reconvene to discuss transition 5 options. 6 Young, visited S.P. s preschool and administered tests in May 7 2004. 8 therapist. 9 special-education kindergarten class. The Committee discussed reevaluating S.P. to aid A behavioral consultant retained by Mamaroneck, Susan Young also interviewed S.P. s mother, teacher, and speech In her report, Young recommended that S.P. attend a Young noted that S.P. did 10 not require the intensive instructional services of the autistic 11 population, for example ABA, though she recommended that speech 12 and occupational therapy continue. 13 In June 2004, the Committee met to discuss S.P. s IEP for 14 2004-2005. 15 a 12-student special-education class with a teacher and two 16 assistants, speech therapy three times per week in a group and 17 once individually, and individual occupational therapy two times 18 per week. 19 The Committee s recommendations included placement in After the June meeting, the McCarton Center for 20 Developmental Pediatrics, which had been retained by S.P. s 21 parents, issued a report containing recommendations contrary to 22 those in Young s report. 23 S.P. attend a special-education class where he was to be The McCarton Center recommended that 4 1 accompanied by a full-time personal aide. 2 that S.P. continue receiving ABA at home, including 25 hours per 3 week of ABA therapy, as well as private speech and occupational 4 therapy five times each per week. 5 It also recommended At the parents request, the Committee reconvened in July 6 2004 to review the McCarton report and to continue discussing 7 S.P. s IEP. 8 to the meeting and went to the location that morning, she did not 9 attend. Though Mamaroneck s consultant, Young, was invited Instead, in the hour before the meeting, she reviewed 10 the McCarton report in the Committee chairperson s office. 11 Young s notes of her review include a two-column chart comparing 12 McCarton s recommendations with her own, which she labeled 13 School Respon. 14 ABA, Young recommended 10 hours of in-school ABA; where McCarton 15 recommended that a full-time personal aide be provided to S.P. at 16 school, Young recommended a part-time personal aide to provide 17 the in-school ABA; and where McCarton recommended five sessions 18 each of private speech and occupational therapy per week, Young 19 recommended, respectively, four and two. 20 Where McCarton recommended 25 hours of at-home During the meeting, S.P. s parents expressed concern about 21 his transition to a full-day kindergarten program, and requested 22 that Mamaroneck continue providing at-home ABA. 23 requested that Mamaroneck provide S.P. with a full-time personal 5 The parents also 1 aide during school, that Mamaroneck staff observe S.P. over the 2 summer and meet with his home providers, and that his home 3 providers be allowed to attend school at the beginning of the 4 year to assist with his transition and train Mamaroneck staff. 5 The Committee agreed to have Young observe S.P. and communicate 6 with the home providers over the summer, and to provide training 7 to Mamaroneck staff. 8 and not S.P. s home providers. 9 request for at-home ABA and a full-time personal aide, and However, Young would provide the training The Committee denied the parents 10 instead recommended, consistent with Young s premeeting notes and 11 in addition to the programs recommended at the June meeting, 10 12 hours of in-school ABA to be provided by a part-time personal 13 aide. 14 which also provided for a team meeting the first week of school 15 and continuing team meetings during the school year, including 16 meetings with S.P. s home providers. The Committee s recommendations were adopted in the IEP, 17 The parents objected to the IEP on the ground that it was 18 insufficient to provide a free appropriate public education to 19 S.P. 20 including 25 hours of ABA therapy and five hours of individual 21 speech therapy per week, and requested an administrative hearing 22 to obtain reimbursement from Mamaroneck for the cost of these 23 services. They therefore supplemented the IEP with at-home services, 6 1 S.P. began attending the special-education kindergarten 2 class in September 2004. 3 S.P. attempted to bite others on approximately six occasions. 4 The biting ended in October. 5 involved the off-topic use of language usually about television 6 shows as a calming or avoidance technique. 7 request, Mamaroneck instituted a system for reducing S.P. s 8 scripting, and the scripting subsided in the first few months of 9 school. 10 At the beginning of the school year, S.P. was also scripting, which At the parents An IHO held a hearing on the parents request for 11 reimbursement between January and May 2005. 12 challenged Mamaroneck s IEP on numerous grounds, including that 13 Mamaroneck (1) improperly predetermined S.P. s IEP by (a) 14 agreeing upon educational placements before the July Committee 15 meeting and (b) developing educational placements before goals 16 and objectives; and (2) failed to provide appropriately for 17 S.P. s transition into the kindergarten classroom. 18 The parents During the hearing, witnesses testified inconsistently about 19 the extent to which the Committee discussed goals and objectives 20 for S.P. during the June meeting. 21 programs and placements, and some speech and language goals, were 22 discussed. 23 July Committee meeting because of a scheduling mistake. They agreed, however, that Young testified that she was unable to attend the 7 She 1 noted that School Respon. in her premeeting notes meant school 2 responsibility. 3 recommendations with the Committee chairperson before the 4 meeting, and testified that the chairperson was on the phone and 5 attending to other business when Young was reviewing the McCarton 6 report in the chairperson s office. 7 that she obtained Young s input into what some of the new 8 recommendations could be before the meeting. 9 Young and the chairperson testified that there was no premeeting 10 11 12 13 Young did not recall discussing her The chairperson testified However, both agreement to adopt Young s recommendations. At the conclusion of the hearing, the IHO rejected the parents arguments and denied their claim for reimbursement. The parents appealed to an SRO, who affirmed. The SRO found 14 that while Young may have shared her thoughts with Committee 15 members before the July meeting, this did not demonstrate that 16 Mamaroneck impermissibly predetermined S.P. s IEP. 17 SRO conclude that educational placements were finalized before 18 goals and objectives were developed, given that both were 19 discussed at the June meeting, and placements were modified at 20 the July meeting in response to the parents concerns. 21 also found that Mamaroneck appropriately planned for S.P. s 22 transition to the classroom by providing supports and services 23 designed to ease S.P. s transition, and that the biting and 8 Nor could the The SRO 1 scripting that occurred in the first few months of school did not 2 impede S.P. s learning. 3 The parents pursued their claim in the district court, which 4 granted them summary judgment. Disagreeing with the IHO and SRO, 5 the district court found that the 2004-2005 IEP was procedurally 6 and substantively deficient because Mamaroneck predetermined the 7 ABA services it was willing to provide to S.P. in 2004-2005, made 8 placement recommendations before finalizing S.P. s goals and 9 objectives, and failed to appropriately address S.P. s transition 10 into kindergarten by not providing at-home ABA services. 11 district court further found that reports from 2005 indicated 12 S.P. had regressed in certain areas, and though it found that the 13 reports were not outcome determinative, they confirmed that the 14 2004-2005 IEP was insufficient.1 15 awarded the parents reimbursement for the cost of the additional 16 services they provided S.P., and attorneys fees and costs. 17 The Accordingly, the district court Mamaroneck now appeals. DISCUSSION 18 1 Mamaroneck charges error in the district court s consideration of 2005 reports. This Court has never ruled on whether district courts may consider retrospective evidence in assessing the substantive validity of an IEP. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 599 (2d Cir. 2005) (remanding for the district court to consider the issue in the first instance). We need not do so here, as resolution of the issue is unnecessary to our disposition of this case. 9 1 We review de novo the district court s grant of summary 2 judgment in an IDEA case. 3 F.3d 186, 191 (2d Cir. 2005). 4 involves more than looking into disputed issues of fact; rather, 5 it is a pragmatic procedural mechanism for reviewing 6 administrative decisions. 7 Dep t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005) (internal 8 quotation marks omitted). 9 Cerra v. Pawling Cent. Sch. Dist., 427 Summary judgment in this context Lillbask ex rel. Mauclaire v. Conn. [T]he role of the federal courts in reviewing state 10 educational decisions under the IDEA is circumscribed. 11 Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d 12 Cir. 2007) (internal quotation marks omitted). 13 district court must base its decision on the preponderance of 14 the evidence, 20 U.S.C. § 1415(i)(2)(C)(iii), it must give due 15 weight to [the administrative] proceedings, mindful that the 16 judiciary generally lack[s] the specialized knowledge and 17 experience necessary to resolve persistent and difficult 18 questions of educational policy, Gagliardo, 489 F.3d at 113 19 (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. 20 Rowley, 458 U.S. 176, 206, 208 (1982)). 21 may not substitute their own notions of sound educational policy 22 for those of the school authorities which they review. 23 458 U.S. at 206. 10 While the Thus, district courts Rowley, 1 To receive federal funding under the IDEA, states are 2 required to provide disabled children with a free appropriate 3 public education. 4 believe that the state has failed to provide such an education 5 may pay for private services and seek reimbursement from the 6 school district for expenses that it should have paid all along 7 and would have borne in the first instance had it developed a 8 proper IEP. 9 Mass., 471 U.S. 359, 370-71 (1985). 10 20 U.S.C. § 1412(a)(1)(A). Parents who Sch. Comm. of Burlington v. Dep t of Educ. of To determine whether parents are entitled to tuition 11 reimbursement, we engage in a three-step process. Cerra, 427 12 F.3d at 192. 13 with the procedures set forth in the IDEA. 14 consider whether the proposed IEP is substantively appropriate in 15 that it is reasonably calculated to enable the child to receive 16 educational benefits. 17 07). 18 do we reach the third step and ask whether the private schooling 19 obtained by the parents is appropriate to the child s needs. 20 In fashioning relief, equitable considerations [relating to the 21 reasonableness of the action taken by the parents] are 22 relevant. 23 363-64 (2d Cir. 2006)(alteration in original)(quoting Burlington, First, we examine whether the state has complied Id. Second, we Id. (quoting Rowley, 458 U.S. at 206- Only if the IEP is procedurally or substantively deficient Id. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 11 1 471 U.S. at 374). 2 review, the parents bear the burden of persuasion as to the 3 inappropriateness of Mamaroneck s IEP and the appropriateness of 4 the private services. 5 I. 6 As the party commencing the administrative Gagliardo, 489 F.3d at 112. Procedural Compliance The initial procedural inquiry in an IDEA case is no mere 7 formality, as adequate compliance with the procedures 8 prescribed would in most cases assure much if not all of what 9 Congress wished in the way of substantive content in an IEP. 10 Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 11 1998) (quoting Rowley, 458 U.S. at 206). 12 Mamaroneck satisfied the procedural requirements of the IDEA, we 13 focus on whether the [parents] had an adequate opportunity to 14 participate in the development of [the] IEP. 15 at 192. 16 In considering whether Cerra, 427 F.3d Here, the parents argue that Mamaroneck predetermined 17 educational programs for S.P. in violation of the procedural 18 requirements of the IDEA by: (1) adopting programs for S.P. s IEP 19 before the July Committee meeting, and (2) making placement 20 recommendations before finalizing S.P. s goals and objectives. 21 These arguments fail. 22 First, Mamaroneck s consideration of educational programs 23 for S.P. before the July Committee meeting did not violate the 12 1 procedural requirements of the IDEA. The parents contend that 2 the Committee chairperson repeated Young s premeeting 3 recommendations at the meeting and therefore must have discussed 4 them with Young before the meeting. 5 discussion, this does not mean the parents were denied meaningful 6 participation at the meeting. 7 districts to engage in preparatory activities . . . to develop a 8 proposal or response to a parent proposal that will be discussed 9 at a later meeting without affording the parents an opportunity Even if there was such IDEA regulations allow school See 34 C.F.R. §§ 300.501(b)(1) & (b)(3).2 10 to participate. 11 Mamaroneck s conduct was consistent with these regulations. 12 The parents argue, however, that Young s notes delineated 13 the limits of the services Mamaroneck was willing to provide, and 14 therefore under Deal ex rel. Deal v. Hamilton County Board of 15 Education, 392 F.3d 840 (6th Cir. 2004), Mamaroneck denied them 16 meaningful participation in the IEP process by improperly 17 predetermining S.P. s educational program. 18 Deal, we find it distinguishable. 19 had consistently rejected parent requests for intensive ABA and 20 told the parents that the powers that be were not implementing 21 such programs. 2 Id. at 855-56. Though not bound by In Deal, the school district Because the school district did At the time of the relevant events in this case, these provisions were found in 34 C.F.R. §§ 300.501(a)(2)(i) & (b)(2). 13 1 not have an open mind as to whether intensive ABA programs might 2 be appropriate in some cases, the court found that the parents 3 were denied meaningful participation in the IEP process. 4 857-58. 5 Id. at S.P. s parents have failed to show that Mamaroneck did not 6 have an open mind as to the content of S.P. s IEP. Both Young 7 and the Committee chairperson testified that there was no 8 premeeting agreement to adopt Young s recommendations. 9 also evidence that the parents meaningfully participated in the 10 July meeting, for example the Committee s adoption in the IEP of 11 the parents recommendations that Mamaroneck staff observe S.P. 12 over the summer and meet with his home providers, and that 13 Mamaroneck staff receive training on how to educate S.P. 14 that the parents meaningfully participated in the development of 15 S.P. s IEP, and Mamaroneck s premeeting consideration of programs 16 for S.P. did not violate the procedural requirements of the IDEA. 17 Second, the timing of placement recommendations did not There is We find 18 violate the procedural requirements of the IDEA. The record is 19 unclear as to the extent goals and objectives were discussed at 20 the June meeting. 21 discussion of speech and language goals as well as placement 22 recommendations. 23 in response to the McCarton report and the parents concerns However, witnesses agreed that there was Moreover, S.P. s programs were later modified 14 1 about transition. Thus, the parents have failed to show that 2 placements and programs were finalized before goals and 3 objectives. 4 II. Substantive Adequacy 5 [A] school district fulfills its substantive obligations 6 under the IDEA if it provides an IEP that is likely to produce 7 progress, not regression, and if the IEP affords the student with 8 an opportunity greater than mere trivial advancement. 9 427 F.3d at 195 (internal quotation marks omitted). Cerra, School 10 districts are not required to furnish[] every special service 11 necessary to maximize each handicapped child s potential. 12 Rowley, 458 U.S. at 199. 13 The district court found S.P. s 2004-2005 IEP substantively 14 inadequate because S.P. had previously received at-home ABA but 15 the IEP provided none, and thus the IEP failed to appropriately 16 account for S.P. s transition into the kindergarten classroom. 17 We conclude that in finding the IEP substantively inadequate, the 18 district court failed to defer appropriately to the decisions of 19 the administrative experts on a difficult question of educational 20 policy: how best to transition an autistic child from a primarily 21 home-based educational program to a school-based program. 22 Gagliardo, 489 F.3d at 112-13. 23 See As the SRO and IHO found, the IEP included numerous supports 15 1 and services to assist S.P. with his transition. It included 10 2 hours of in-school ABA. 3 observe S.P. over the summer and communicate with his home 4 providers in order to develop an appropriate in-school program. 5 There was to be a team meeting the first week of school and 6 continuing team meetings during the school year, including 7 meetings with the home providers. 8 biting and scripting at the beginning of the school year, 9 Mamaroneck adopted the parents recommendation to institute a The IEP specified that Young would Though S.P. did engage in 10 system for decreasing the scripting. 11 and S.P. s biting ended in October. 12 biting and scripting did not impede learning. 13 administrative decisions to be reasoned and supported by the 14 record, and therefore defer to the findings of the SRO and IHO 15 that the IEP appropriately provided for S.P. s transition. 16 Gagliardo, 489 F.3d at 1132-13. 17 The system was effective, The SRO found that the We find the See Because we find that S.P. s 2004-2005 IEP was neither 18 procedurally flawed nor substantively deficient, we need not 19 reach the issues whether the additional services provided by the 20 parents were appropriate, see Cerra, 427 F.3d at 192, or whether 21 equitable considerations affect relief, see Frank G., 459 F.3d at 22 363-64. 23 We have reviewed the parents other challenges to the IEP 16 1 and find them to be without merit. 2 CONCLUSION 3 For the foregoing reasons, we REVERSE the judgment and 4 REMAND to the district court with instructions to enter judgment 5 for Mamaroneck. 17

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