M.H. v. NY City Dep't of Educ., No. 10-2181 (2d Cir. 2012)

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Justia Opinion Summary

The plaintiffs in consolidated cases are the parents of disabled children, challenging the procedural and substantive adequacy of Individualized Education Plans that the New York City Department of Education, developed for their children pursuant to the Individuals with Disabilities Education 8 Act, 20 U.S.C. 1400. They also sought reimbursement of funds spent on private-school tuition for their children. In one case, the Second Circuit held that the district court properly agreed with the determinations of the hearing officer who initially considered the matter and properly rejected the subsequent determinations of the state review officer. In the other case, the Second Circuit found that the magistrate judge, who recommended granting the Department's motion for summary judgment, overstated the extent to which federal courts must defer to the findings of state administrative officers, but that the Department's motion was properly granted.

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10-2181-cv, 10-2418-cv M.H. & E.K. o/b/o P.H.; M.S. & L.S. o/b/o of D.S. v. NYC Dep t of Education 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2010 4 (Argued: April 25, 2011 Decided: June 29, 2012) 5 ------------------------------------- 6 M.H. AND E.K. individually and collectively on behalf of P.H., 7 Plaintiffs-Appellees, 8 - v - 9 New York City Department of Education, Docket No. 10-2181 10 Defendant-Appellant. 11 ------------------------------------- 12 13 M.S. individually, M.S., collectively and on behalf of D.S., L.S., individually, L.S., collectively and on behalf of D.S., 14 Plaintiffs-Appellants, 15 16 17 - v - 18 Defendant-Appellee. 19 ------------------------------------- 20 Before: 21 Docket No. 10-2418 New York City Department of Education, SACK, LIVINGSTON, and LYNCH, Circuit Judges. Appeals from opinions and orders in two different cases 22 decided in the United States District Court for the Southern 23 District of New York (Loretta A. Preska, Chief Judge, and Lewis 24 A. Kaplan, Judge, respectively), granting, in M.H., the 1 plaintiffs' motion for summary judgment and, in M.S., the New 2 York City Department of Education's motion for summary judgment. 3 The plaintiffs in both cases are the parents of disabled children 4 who challenged the procedural and substantive adequacy of the 5 Individualized Education Plans that the defendant, New York City 6 Department of Education, had developed for the plaintiffs' 7 children pursuant to the Individuals with Disabilities Education 8 Act, 20 U.S.C. § 1400 et seq. 9 reimbursement of funds spent on private-school tuition for their 10 The plaintiffs also sought children. 11 In M.H., we conclude that the district court properly 12 agreed with the determinations of the Impartial Hearing Officer 13 who initially considered the matter in the State's administrative 14 scheme, and properly rejected the subsequent determinations of 15 the State Review Officer. 16 magistrate judge -- who recommended granting the Department's 17 motion for summary judgment -- overstated the extent to which 18 federal courts must defer to the findings of state administrative 19 officers, we conclude that the Department's motion was properly 20 granted. 21 22 23 24 25 26 In M.S., although we conclude that the Affirmed. JULIE STEINER (G. Christopher Harriss, Stephen J. McGrath, Andrew Rauchberg, of counsel, on the brief), on behalf of Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New 2 York, for Defendant-Appellant New York City Department of Education. 1 2 3 4 5 6 7 8 9 10 11 JESSE COLE CUTLER (Samantha Bernstein, on the brief), Skyer and Associates, L.L.P., New York, New York, for Plaintiffs-Appellees M.H. and E.K on behalf of P.H.; for PlaintiffsAppellants M.S. and L.S. individually and collectively on behalf of D.S.. SACK, Circuit Judge: 12 BACKGROUND 13 Both of these appeals, which we heard in tandem, 14 concern the proper interpretation of the Individuals with 15 Disabilities Education Act ("IDEA"),1 20 U.S.C. § 1400 et seq. 16 They each involve unique facts which must therefore be set out in 17 considerable detail in order to address the legal issues they 1 Glossary of Acronyms: This opinion, dealing as it does with the IDEA and practices thereunder, is replete with acronyms. In addition to their definition in the text, a separate glossary of acronyms is therefore set forth in the Appendix to this opinion. Cf. Nat'l Assoc. of Regulatory Util. Comm'rs v. U.S. Dep't of Energy, Nos. 11-1066, 11-1068, --- F.3d ---, 2012 WL 1957942, at *6, n.1, 2012 U.S. App. LEXIS 11044, at *3, n.1 (D.C. Cir. June 1, 2012) (Silberman, J.) (referring to court's Handbook of Practice and Internal Procedures' statement that "'parties are strongly urged to limit the use of acronyms' and 'should avoid using acronyms that are not widely known.'" "Brief-writing, no less than 'written English, is full of bad habits which spread by imitation and which can be avoided if one is willing to take the necessary trouble.' George Orwell, 'Politics and the English Language,' 13 Horizon 76 (1946). Here, both parties abandoned any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not . . . ."). 3 1 raise.2 2 the federal courts must go about their IDEA-mandated review of 3 state administrative decisions. The cases both require us to address the manner in which 4 The IDEA 5 Congress enacted the IDEA "to ensure that all children 6 with disabilities have available to them a free appropriate 7 public education . . . designed to meet their unique needs . . . 8 [and] to ensure that the rights of children with disabilities and 9 parents of such children are protected." 20 U.S.C. 10 § 1400(d)(1)(A)-(B); see also Forest Grove Sch. Dist. v. T.A., 11 557 U.S. 230, 247 (2009) (concluding that a court could award 12 private-school-tuition reimbursement to the parents of disabled 13 children not provided a "Free Appropriate Public Education"). 14 "The IDEA offers federal funds to states that develop plans to 15 assure 'all children with disabilities' [residing in each such 16 state] a 'free appropriate public education,' 20 U.S.C. 17 § 1412(a)(1)(A)." 18 377, 379 (2d Cir. 2003). Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 2 Factual complexity is not an unusual feature of IDEA appeals. See, e.g., Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123-29 (2d Cir. 1998) (describing the complex factual history of a case involving a child challenging an IEP who had been diagnosed with, among other things, "Minimal Brain Dysfunction syndrome with an attention deficit disorder and hyperactivity, developmental language disorder, a mild to moderate separation anxiety disorder, and obsessive compulsive disorder, and Tourette's Syndrome ."). 4 1 "To meet [the IDEA's] requirements, a school district's 2 program must provide 'special education and related services[,]' 3 [20 U.S.C. § 1401(9)], tailored to meet the unique needs of a 4 particular child, and be reasonably calculated to enable the 5 child to receive educational benefits." 6 Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (some internal 7 quotation marks omitted); see also Grim, 346 F.3d at 379 8 (similar). 9 'individualized education program' . . . , which school districts Gagliardo v. Arlington These services "must be administered according to an 10 must implement each year for each student with a disability." 11 Id. (quoting 20 U.S.C. § 1414(d)). 12 An individualized education program ("IEP") is "a 13 written statement that 'sets out the child's present educational 14 performance, establishes annual and short-term objectives for 15 improvements in that performance, and describes the specially 16 designed instruction and services that will enable the child to 17 meet those objectives.'" 18 Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (quoting Honig v. Doe, 19 484 U.S. 305, 311 (1988)), amended on other grounds, 480 F.3d 138 20 (2d Cir. 2007). 21 adequate, it must be "[']likely to produce progress, not 22 regression, and [must] . . . afford[] the student with an 23 opportunity greater than mere trivial advancement.'" 24 rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 D.D. ex rel. V.D. v. N.Y.C. Bd. of Under the IDEA, for a child's IEP to be 5 T.P. ex 1 (2d Cir. 2009) (quoting Cerra v. Pawling Cent. Sch. Dist., 427 2 F.3d 186, 195 (2d Cir. 2005)). 3 furnish every special service necessary to maximize each 4 handicapped child's potential." 5 Bd. of Educ. v. Rowley, 458 U.S. 176, 199 (1982)) (brackets, 6 ellipsis, and internal quotation marks omitted). 7 "education [must] be provided in the 'least restrictive setting 8 consistent with a child's needs.'" 9 F.3d at 122 (2d Cir. 1998)). However, it need "not . . . Grim, 346 F.3d at 379 (quoting Under an IEP, Id. (quoting Walczak, 142 The IEP is "[t]he centerpiece of 10 the IDEA's educational delivery system." 11 F.3d at 507 (internal quotation marks omitted). 12 D.D. ex rel. V.D., 465 "Since New York State receives federal funds under 13 IDEA, it is obliged to comply with the requirements of this law. 14 To meet these obligations and to implement its own policies 15 regarding the education of disabled children, the State has 16 assigned responsibility for developing appropriate IEPs to local 17 Committees on Special Education [('CSEs')], the members of which 18 are appointed by school boards or the trustees of school 19 districts." 20 § 4402(1)(b)(1)). 21 is required to consider four factors: (1) academic achievement 22 and learning characteristics, (2) social development, (3) 23 physical development, and (4) managerial or behavioral needs." 24 Gagliardo, 489 F.3d at 107-08 (citing N.Y. Comp. Codes R. & Regs. Walczak, 142 F.3d at 123 (citing N.Y. Educ. Law "In developing a particular child's IEP, a CSE 6 1 ("NYCCRR") tit. 8, § 200.1(ww)(3)(i)). "[T]he CSE must also be 2 mindful of the IDEA's strong preference for 'mainstreaming,' or 3 educating children with disabilities '[t]o the maximum extent 4 appropriate' alongside their non-disabled peers." 5 (citing 20 U.S.C. § 1412(a)(5)) (second set of brackets in 6 original). Id. at 108 7 If a New York parent "believe[s] an IEP is insufficient 8 under the IDEA," he or she "may challenge it in an 'impartial due 9 process hearing,' 20 U.S.C. § 1415(f), before an [Impartial 10 Hearing Officer, or 'IHO'] appointed by the local board of 11 education." Grim, 346 F.3d at 379 (quoting N.Y. Educ. Law 12 § 4404(1)). At the hearing before the IHO, "the school district 13 has the burden of demonstrating the appropriateness of its 14 proposed IEP." 15 explains: 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. As the governing New York State statute The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement. 7 1 N.Y. Educ. Law § 4404(1)(c).3 2 appealed to a State Review Officer ("SRO"), who is an officer of 3 the State's Department of Education. An IHO's decision may, in turn, be Grim, 346 F.3d at 379-80.4 3 In Schaeffer ex rel. Schaeffer v. Weast, 546 U.S. 49 (2005), the Supreme Court concluded that the IDEA placed the burden of challenging an IEP on the party bringing the challenge. Id. at 57-58. The Court, however, left unanswered the question whether states could "override the default rule and put the burden always on the school district." Id. at 61-62. Since Schaeffer, New York has amended its statutory scheme to reallocate the burden to the District, even in cases where the parents are challenging the IEP. See W.T. v. Bd. of Educ. of School Dist. of N.Y.C., 716 F. Supp. 2d 270, 287 (S.D.N.Y. 2010). We need not, however, resolve the question the Supreme Court left open in Schaeffer -- whether the State has the power to override the IDEA burden scheme. Because the State Review Officers in the cases at bar concluded that the IEPs were proper, and the courts are bound to exhibit deference to that decision, the burden of demonstrating that the respective Review Officers erred is properly understood to fall on the plaintiffs. See id. To the extent that the district court in these cases, or this Court on review, must determine whether the state administrative decisions were supported by a preponderance of the evidence, which party bore the burden of persuasion in the state review scheme is only relevant if the evidence was in equipoise. See Nw. Mut. Life Ins. Co. v. Linard, 498 F.2d 556, 560 (2d Cir. 1974); see also Schaeffer, 546 U.S. at 58 ("Petitioners also urge that putting the burden of persuasion on school districts will further IDEA's purposes because it will help ensure that children receive a free appropriate public education. In truth, however, very few cases will be in evidentiary equipoise."). That is not the situation here. 4 The overlapping roles of the State and the School District in IDEA cases in New York further complicate the confusing, alphabet-soup nature of IDEA cases brought in New York City . In New York, the School District -- here the defendant New York City Department of Education -- is responsible for complying with the IDEA. The School District also appoints the IHO, who is responsible for determining whether the School District has met its obligations under the IDEA. If, however, either party is dissatisfied with the decision of the IHO, it may appeal the decision to the SRO, who, unlike the IHO, is appointed by the State's Education Department. See generally N.Y. Educ. Law. § 4404. In this opinion, we refer to the City's Department of 8 1 Generally, either "party aggrieved" by the findings of 2 the SRO "shall have the right to bring a civil action" in either 3 state or federal court. 4 action is brought in federal district court, the court reviews 5 the records of all of the prior administrative hearings and must 6 hear additional evidence if so requested by either of the 7 parties. 8 the propriety of the IEP on the parties' cross motions for 9 summary judgment. 20 U.S.C. § 1415(i)(2)(A). Id. at § 1415(i)(2)(c). When such an The court typically considers 10 However, 11 12 13 14 15 16 17 18 19 20 a motion for summary judgment in an IDEA case often triggers more than an inquiry into possible disputed issues of fact. Rather, the motion serves as a pragmatic procedural mechanism for reviewing a state's compliance with the procedures set forth in [the] IDEA [in developing the specific IEP at issue] and determining whether the challenged IEP is reasonably calculated to enable the child to receive educational benefits. 21 Lillbask ex rel. Mauclaire v. State of Conn. Dep't of Educ., 397 22 F.3d 77, 83 n.3 (2d Cir. 2005) (internal quotation marks 23 omitted). 24 procedure 'a motion for summary judgment,' the procedure is in 25 substance an appeal from an administrative determination, not a 26 summary judgment [motion]." 27 citation omitted). "Though the parties in an IDEA action may call the Id. (ellipsis, brackets, and "[B]asing its decision on the preponderance Education as the "DOE" or the "School District." We refer to the State's Education Department as the "Education Department." 9 1 of the evidence, [the court is required to] grant such relief as 2 the court determines is appropriate." 3 § 1415(i)(2)(C)(iii). In the separate proceedings consolidated for purposes 4 of this appeal, the parent plaintiffs assert that the school 5 districts serving their children, having failed to provide each 6 of them with a free appropriate public education ("FAPE"), must 7 reimburse the parents for the costs associated with sending these 8 children to private schools for an appropriate education. 9 Although these cases are similar to many IDEA cases in this 10 regard, see, e.g., Gagliardo, 489 F.3d at 106, they inevitably 11 involve distinct facts and procedural histories. 12 M.H. Background 13 P.H., the son of M.H. and E.K., was born on October 11, 14 2001. He is autistic. During the 2006-07 school year, when P.H, 15 was of pre-school age, he attended a mainstream preschool. 16 Pursuant to a mandate of the Committee on Preschool Special 17 Education (the "CPSE") of the New York State Education 18 Department, he received Special Education Itinerant Teacher 19 ("SEIT") services on a one-to-one ("1:1") basis. 20 one-on-one with P.H. throughout the school day at P.H.'s home. 21 Plaintiffs' 56.1 Statement ¶¶ 2-3, M.H. v. N.Y.C. Dep't of Educ., 22 712 F. Supp. 2d 125 (S.D.N.Y. 2010) (No. 09 Civ. 3657), ECF No. 23 13 ("Pls. 56.1 Stmt."); Defendants' 56.1 Response ¶¶ 2-3, M.H. v. 24 N.Y.C. Dep't of Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010) (No. 10 The SEIT worked 1 09 Civ. 3657), ECF No. 19 ("Def.'s 56.1 Resp."). 2 CPSE mandate, P.H.'s SEITs were trained in Applied Behavior 3 Analysis ("ABA")5 and provided at least 35 hours weekly of 4 services using that approach. 5 56.1 Resp. ¶¶ 2-3. 6 Pursuant to the Pls.' 56.1 Stmt. ¶¶ 2-3; Def.'s In addition, P.H. received several related services 7 weekly, including five 60-minute speech therapy sessions; three 8 60-minute occupational therapy sessions; and two 60-minute 9 physical therapy sessions. 10 Pls.' 56.1 Stmt. ¶ 4; Def.'s 56.1 Resp. ¶ 4. 11 The DOE's CSE convened a meeting on April 17, 2007, to 12 discuss P.H.'s educational program for the 2007-08 school year 5 ABA uses careful behavioral observation and positive reinforcement or prompting to teach each step of a behavior. A child's behavior is reinforced with a reward when he or she performs each of the steps correctly. Undesirable behaviors, or those that interfere with learning and social skills, are watched closely. The goal is to determine what happens to trigger a behavior, and what happens after that behavior that seems to reinforce the behavior. The idea is to remove these triggers and reinforcers from the child s environment. New reinforcers are then used to teach the child a different behavior in response to the same trigger. Factsheet for Autism Therapy: Applied Behavior Analysis, HEALING THRESHOLDS (Nov. 5, 2009, last updated Dec. 21, 2009), http://autism.healingthresholds.com/therapy/applied-behavior-anal ysis-aba (footnotes and emphases omitted). 11 1 when P.H. would be in kindergarten -- and to formulate his IEP 2 for that year. 3 CSE comprised: (1) Giselle Jordan, a DOE representative and 4 school psychologist who led the meeting; (2) P.H.'s SEIT; (3) a 5 social worker; (4) a general education teacher; (5) a special 6 education teacher; (6) P.H.'s parents; (7) an additional parent 7 member of the CSE; and (8) the director of P.H.'s preschool 8 program. 9 Pls.' 56.1 Stmt. ¶ 5; Def.'s 56.1 Resp. ¶ 5. The Pls.' 56.1 Stmt. ¶ 6. Jordan, as CSE team leader, was ultimately responsible 10 for preparing P.H.'s IEP. 11 testified that she prepared the IEP by reviewing all of the 12 records provided to her and participating in the CSE meeting. 13 Jordan had never met P.H. She Before the CSE meeting, P.H.'s parents provided the CSE 14 with several documents, including: (1) a psycho-educational 15 evaluation of P.H. and addendum prepared by Dr. David Salsberg, a 16 supervising pediatric psychologist at NYU Medical Center, who 17 treated P.H. privately; (2) P.H.'s speech, occupational, and 18 physical therapy progress reports prepared by treating 19 specialists; (3) an educational progress report from P.H.'s SEIT; 20 (4) a social history update from a DOE social worker; (5) a 21 classroom observation report by a different DOE social worker; 22 and (6) a report prepared by P.H.'s pre-school teacher. 23 testified in the subsequent proceedings before the IHO that it 12 Jordan 1 was her practice to review all submitted documents before the CSE 2 meeting. 3 According to the documents submitted to the CSE, along 4 with a public-school placement, P.H. received occupational 5 therapy, speech therapy, ABA therapy, and physical therapy at 6 home. 7 mainstream placement and private support. 8 stated that "[b]eing around typical peers [in the mainstream pre- 9 school] ha[d] helped [P.H.] in his ability to communicate He was making moderate progress with this combination of The SEIT's report 10 socially." 11 throughout the year." 12 filed Oct. 13, 2010 ("M.H. J.A."), at 1185. 13 Overall, P.H. had made "substantial progress M.H., Joint Appendix in Court of Appeals P.H.'s parents reported to the CSE that they thought he 14 was "doing very well in his current mainstream placement and 15 [was] flourishing with typical peers." 16 Salsberg's report offered the view that P.H. should be placed in 17 "a small classroom setting . . . [that] provide[s] frequent 18 opportunities for social interaction with peers." 19 Dr. Salsberg's initial report did not mention ABA therapy, but 20 his addendum stated that P.H. "requires 1:1 intensive language- 21 based behavioral interventions by an experienced SEIT throughout 22 the day," and that P.H. "requires continuation of his home-based 23 ABA, [occupational therapy,] and speech/language program." 24 at 1189. Id. at 1192. Dr. Id. at 1144. Id. P.H.'s preschool teacher similarly opined that P.H. 13 1 required 1:1 support in order to function in the classroom 2 setting. 3 "an appropriate place" for him. 4 She thought, though, that the classroom setting was not Id. at 1159. As a result of the April 17 DOE CSE meeting, the CSE 5 formulated an IEP for P.H. Pls.' 56.1 Stmt. ¶ 22; Def.'s 56.1 6 Resp. ¶ 22. 7 school in a special education class with a 6:1:1 student-teacher- 8 paraprofessional ratio. 9 weekly 30-minute physical therapy sessions; (2) thrice weekly 30- Under the IEP, P.H. would be placed in a special The IEP also provided for (1) twice 10 minute occupational therapy sessions; and (3) thrice weekly 30- 11 minute speech and language therapy sessions. 12 P.H. would thus receive fewer hours of these related services 13 than he had been receiving under the prior year's plan. 14 Under this IEP, Based on the IEP, by Final Notice of Recommendation 15 dated July 11, 2007, the School District notified P.H.'s parents 16 that he had been placed at the school denominated P.S. 94, a 17 smaller school located within the building of P.S. 15, on East 18 4th Street in Manhattan.6 6 Both P.H.'s and D.S.'s Final Notices of Recommendation from DOE indicate that they were assigned to P.S. 94. But the schools appear to be located at different addresses and within different mainstream-schools. Although this is confusing, the confusion need not be resolved beyond noting that we find nothing to indicate that P.H. and D.S. would have attended the same school as one another had they both attended the public schools to which they were assigned in their IEPs. 14 1 The parties dispute what happened after parents M.H. 2 and E.K. received the IEP and Final Notice of Recommendation. 3 The plaintiff parents assert that "[f]or two weeks" they 4 "attempted to contact the proposed placement to schedule a visit 5 to determine whether the class was appropriate for P.H. 6 was no answer at the school building and the parent[s'] messages 7 were not returned." There Pls.' 56.1 Stmt. ¶ 28. 8 Thereafter, the parents say, they were directed to 9 Ronnie Schuster, the principal at a different site, who, the 10 parents were told, would be the principal at P.S. 94 in the fall. 11 They assert that they visited Schuster's then-school on August 7 12 or 8, 2007, to observe a class similar to the one in which P.H. 13 would be enrolled at P.S. 94 pursuant to his IEP. 14 Cebrian, a teacher who was to be the site leader at P.S. 94. 15 Cebrian took them to observe a 6:1:1 summer-program class that, 16 she said, was similar to the class P.H. could expect to enter in 17 the fall. 18 were lower functioning than P.H. and had "little expressive 19 language." 20 teacher was only "babysitting" the children. 21 contended that Cebrian told him that the mainstream children at 22 the school did not act as though they welcomed special education 23 children -- the latter group ate lunch in a separate cafeteria 24 and used a separate entrance to the school. Id. ¶ 30. They met Oliva In their view, the children in the class M.H. J.A. at 727. It appeared to M.H. that the 15 Id. M.H. also 1 After the visit, M.H. again contacted Schuster, seeking 2 further information about the placement, including whether P.H. 3 would be able to interact with mainstream students. 4 referred him to another DOE employee, Sonia Royster, whom he then 5 telephoned. 6 call, M.H. followed up by letter. 7 never responded. Schuster When, according to M.H., Royster did not return the According to M.H., Royster 8 At about the same time, M.H. and E.K., who were not yet 9 persuaded that the IEP's placement was appropriate for their son, 10 explored other options, including the Brooklyn Autism Center 11 ("BAC"), a private school. 12 with its educational director, Jaime Nicklas. 13 program for autistic children that features intensive ABA 1:1 14 instruction to its five students; tuition is $80,000 per school 15 year, payable at the beginning of each year. 16 The plaintiffs visited BAC and met BAC provides a After the visit, the parents submitted an application 17 to BAC. M.H. testified that with the start of the school year 18 fast approaching, his intention was "to place [P.H.] temporarily 19 if they'll accept him into BAC in that program," while M.H. 20 continued to seek information regarding the IEP's public school 21 placement. 22 plaintiffs signed the contract with the school and paid a 23 deposit. M.H. J.A. 733. P.H. was accepted into BAC, and the 16 1 On August 24, 2007, one week after signing the BAC 2 contract, M.H. visited Royster -- to whom Schuster had referred 3 him -- at her office. 4 provide any further information about P.H.'s placement. 5 asserts that he "literally had to camp out" at the CSE office "to 6 get any information whether it be on [P.H.'s placement or] his 7 related services." 8 9 According to M.H., Royster could not M.H. M.H. J.A. 736. On the first day of school at P.S. 94 September 10, 2007 according to M.H., having failed to get any information 10 from Royster, M.H. again contacted Schuster. 11 did not receive a response, he followed up by email on September 12 14, inquiring whether he could visit the proposed placement. 13 did not receive a responsive email until nine days later, on 14 September 19. 15 When, he says, he He The next day, after observing two different classes at 16 P.S. 94, M.H. was of the view that neither was an appropriate 17 place for his son: 18 P.H., nonverbal and not toilet trained; in the second, the 19 students were many years P.H.'s senior. 20 P.H. would not benefit from the instruction offered in the 21 classes, both because the school offered only minimal ABA 1:1 22 therapy and because, M.H. thought, the methodologies the school 23 did use would not work for P.H. In one, the students were young and, unlike 17 M.H. also thought that 1 The DOE contends that it could have offered P.H. 2 placement in yet a third class, but does not suggest that it so 3 informed M.H. 4 keep P.H. at BAC for the 2007-08 school year, and paid the 5 remainder of the $80,000 tuition in full. 6 After visiting P.S. 94, the parents decided to By letter dated October 30, 2007, M.H. and E.K., 7 through counsel, requested a due process "impartial hearing" and 8 sought reimbursement for P.H.'s BAC tuition. 9 they alleged that the DOE failed to provide P.H. with a FAPE, In that request, 10 developing instead a procedurally and substantively unreasonable 11 IEP. 12 The parents also asserted three specific procedural 13 challenges to the IEP: (1) that the annual goals and short-term 14 objectives presented for P.H. were "generic and vague," and 15 lacked evaluative criteria, in violation of the IDEA; (2) that 16 the CSE failed to conduct an Functional Behavioral Assessment 17 ("FBA") to evaluate P.H.'s social needs; and (3) that the IEP 18 ultimately did not mandate social and emotional counseling for 19 P.H. despite acknowledging at one point in the document that such 20 counseling was necessary. 21 IEP was substantively inadequate because the classrooms 22 identified for P.H. did not meet his needs and would not have 23 provided him with an educational benefit. The plaintiffs also asserted that the 18 1 As is required under the IDEA, in response to the 2 parents' request, a DOE IHO conducted a hearing to review the 3 IEP. 4 January 30, 2008, and September 5, 2008. M.H. J.A. 1345. The hearing lasted eight non-contiguous days between 5 The DOE, which bore the burden of proof, presented 6 testimony by: Giselle Jordan, the CSE organizer and drafter of 7 the IEP; and Susan Cruz, an Assistant Principal at the proposed 8 placement. 9 Id. at 1345-47. Jordan testified, among other things, that she had 10 reviewed all of the documents submitted to the CSE committee. 11 She stated that P.H. did not demonstrate behavioral problems that 12 interfered with his learning; described the CSE meeting and the 13 process of producing the IEP; and discussed P.H.'s test scores. 14 Cruz explained the structure and programming at P.S. 94. 15 Later, on rebuttal, the DOE also called Elizabeth 16 Washburn, a teacher at P.S. 94, and Kay Cook, a "coach" who 17 trains DOE staff on teaching methodologies for autistic students 18 including ABA, TEACCH, and PECS, the latter being the principal 19 methodologies used at P.S. 94. 20 The plaintiffs presented testimony by BAC director 21 Jaime Nicklas; P.H.'s treating psychologist Dr. David Salsberg; 22 P.H.'s speech pathologist Miranda White; and M.H., P.H.'s father. 23 In addition to explaining BAC's program, Nicklas described the 24 ABA methodology in depth and voiced her opinion that ABA is "the 19 1 only empirical method approved to treat children with autism." 2 M.H. J.A. at 454. 3 program is not appropriate for every single child," and that 4 higher functioning children would not benefit from being in a 5 "more restrictive environment . . . if they can communicate and 6 if they can learn in a large group setting." 7 She also testified that based on her observation of P.H., it was 8 clear to her that he needed an ABA program to progress. 9 Nicklas testified that P.H. had made great strides during his She admitted, however, that "a strict ABA M.H. J.A. at 467. Finally, 10 time at BAC, learning to identify objects he wanted, asking for 11 help, walking quietly, and identifying basic numbers and words, 12 among other things. 13 importance of ABA treatment to P.H.'s continued progress. 14 After hearing the testimony, the IHO issued her Dr. Salsberg's testimony focused on the 15 findings and decision. She agreed with the parents that the 16 IEP's annual goals and objectives were "generic and vague" and 17 "not based on his actual needs and abilities, but on the grade he 18 was expected to be placed in." 19 this conclusion, the IHO cited Jordan's testimony to the effect 20 that prior to the IEP meeting she thought P.H. would be entering 21 first grade, and that, after learning that he would in fact be 22 entering kindergarten, she changed the annual goals but did not 23 change the short-term goals and objectives. 24 agreed with the parents that "some of the April 2007 IEP annual M.H. J.A. at 1356. 20 Id. In support of The IHO also 1 goals and short term objectives in reading comprehension, reading 2 skills and math [were] not measurable since they d[id] not 3 contain evaluative criteria, evaluation procedures and schedules 4 to be used to measure progress." 5 Id. The IHO then discussed her review as to the appropriate 6 method for teaching P.H. Although the parents did not 7 specifically raise this issue in their letter requesting the 8 hearing, the IHO characterized the parents as "contend[ing] that 9 the appropriate methodology for the student was ABA discre[te] 10 trial instruction." 11 "evaluations support their claim." 12 that the IEP's proposed placement did not offer sufficient 1:1 13 ABA instruction, but that the BAC did. 14 concluded that because BAC was an appropriate place for P.H. and 15 because equitable considerations favored the parents, 16 reimbursement of P.H.'s BAC tuition costs was appropriate. 17 Id. at 1357. According to the IHO, P.H.'s Id. The IHO then decided Id. Finally, the IHO The DOE appealed the IHO's decision to the SRO. Id. On 18 December 10, 2008, the SRO issued a decision reversing the IHO. 19 Id. at 1362. 20 addressed the DOE's contention that because the parents did not 21 raise the question of educational methodology in their letter 22 requesting the due process hearing, the IHO should not have 23 considered it. 24 failure to include such a claim in their letter, it was After recounting the facts in some detail, the SRO He concluded that in light of the parents' 21 1 "procedurally improper for the [IHO] to bas[e] her finding that 2 the district did not provide the student a FAPE in part on her 3 determination that the appropriate methodology for [P.H.] was 4 ABA." 5 the . . . annual academic goals [contained in the IEP] were 6 appropriate for [P.H.] and that they provided meaningful guidance 7 to the teacher responsible for implementing the goals." Id. at 8 1374. 9 Id. at 1372. Turning to the merits, the SRO "f[ound] that With regard to the IEP's "non-academic goals," the SRO 10 acknowledged that some of those contained in the IEP "lacked a 11 written specified level of difficulty when isolated out of 12 context and viewed alone," but thought that because "the majority 13 of the student's short-term objectives were both detailed and 14 measurable," this cured any deficiencies with the annual goals. 15 Id. 16 sufficient goals and short-term objectives relating to [P.H.'s] 17 social/emotional needs." 18 dispositive," the parents did not express any concern about the 19 specificity of the IEP's goals until they filed their hearing 20 request letter. 21 The SRO was also satisfied that the "IEP . . . contained Id. He also noted that "although not Id. at 1375. Turning to the substance of the program endorsed by the 22 IEP, the SRO determined that although the parents "previously 23 indicated that they believed [P.H.] was doing 'very well' in his 24 mainstream preschool setting with SEIT support and they wanted 22 1 him to be placed in a similar setting for kindergarten, the 2 hearing record does not support that a general education setting 3 would be appropriate [for P.H.]." 4 SRO then cited testimony regarding P.S. 94's use of "various 5 methodologies," and concluded that "the recommended placement was 6 reasonably calculated to enable [P.H.] to obtain educational 7 benefit." 8 [her] determination that the district did not offer [P.H.] a FAPE 9 for the 2007-08 school year." Id. Id. (citation omitted). The The SRO thus decided that the IHO had "erred in Id. The SRO therefore did not 10 reach the question of whether BAC was an appropriate unilateral 11 placement. 12 M.H. and E.K., on behalf of P.H., challenged the SRO's 13 decision through a civil action brought in the United States 14 District Court for the Southern District of New York. 15 complaint dated April 9, 2009, the plaintiffs sought "(a) a 16 modified de novo review and reversal of the . . . [SRO]'s 17 December 10, 2008 Decision . . . ; (b) a determination that M.H. 18 and E.K. and P.H. have met the applicable Second Circuit standard 19 for reimbursement of tuition paid for the unilateral provision of 20 special education services to P.H.; (c) an order directing 21 defendant to reimburse plaintiff, as requested, for the provision 22 of such educational services; and (d) an order granting plaintiff 23 leave to file a fee application pursuant to the fee shifting 24 provisions of the statute." By Compl. at 2, M.H. v. N.Y.C. Dep't of 23 1 Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010) (No. 09 Civ. 3657), 2 ECF No. 1. 3 The parties then cross-moved for summary judgment. By 4 a lengthy and detailed Opinion and Order dated May 10, 2010, the 5 district court (Loretta A. Preska, Chief Judge) reversed the SRO, 6 agreeing with the IHO instead. 7 712 F. Supp. 2d 125 (S.D.N.Y. 2010). 8 of the facts, the court engaged in a point-by-point consideration 9 of the IHO's and SRO's decisions. 10 M.H. v. N.Y.C. Dep't of Educ., After a careful rehearsal First, the district court decided that the SRO had 11 erred by declining to consider the plaintiffs' evidence regarding 12 the proper methodology for teaching their son. 13 In the district court's view, it was the DOE that first raised 14 the issue of methodology. 15 precluded from responding. 16 Id. at 148-52. The plaintiffs could not fairly be Id. Second, the district court concluded that the IEP did 17 not comply with IDEA's procedural requirements. In analyzing the 18 issue, the court began with the observation that the opinion of 19 the SRO was neither cogently reasoned nor supported by adequate 20 evidence. 21 reasoning and conclusions of the IHO. 22 them clear and in accordance with the applicable standards 23 previously set forth by this Court. The court therefore based its analysis on the 24 The district court thought Id. at 153-63. 1 The district court did not, however, fault the CSE for 2 its failure to conduct a Functional Behavioral Assessment. 3 FBA is the "process of determining why a student engages in 4 behaviors that impede learning and how the student's behavior 5 relates to the environment." 6 did not conduct an FBA before adopting P.H.'s IEP. 7 case, an FBA would have considered why he engaged in abnormal 8 behavior such as repeatedly biting his hand, screaming, and self- 9 stimulating, or "stimming." NYCRR tit. 8, § 200.1®. An The CSE In P.H.'s Pls.' 56.1 Stmt. ¶¶ 15-16. 10 As the district court noted, "[f]ailure to conduct an 11 FBA does not amount to a procedural violation of the IDEA where 12 the IEP sets forth other means to address the student's 13 problematic behaviors." 14 because the IEP identifies P.H.'s problematic behavior but states 15 that it does not render him entirely unteachable, the SRO's 16 determination that the absence of an FBA did not render the IEP 17 unreasonable was appropriate. 18 Id. at 158. The court concluded that Id. at 159. With regard to the IEP's substantive compliance with 19 IDEA mandates, the district court relied on the IHO's opinion 20 rather than that of the SRO. 21 with the IHO's conclusion that the IEP did not provide a program 22 that would meet P.H.'s needs. 23 IHO's determination that the classroom identified for P.H. was 24 not appropriate because it did not provide sufficient ABA Id. at 159-66. Id. 25 The court agreed The court also accepted the 1 therapy. Id. at 161-63. 2 that BAC was an appropriate unilateral placement, and that 3 equitable considerations favored reimbursement. 4 The court therefore granted the plaintiffs' motion for summary 5 judgment, denied the defendant's, and ordered the DOE to 6 reimburse the plaintiffs for P.H.'s 2007-08 BAC tuition. 7 170. Finally, the court agreed with the IHO Id. at 163-70. Id. at 8 M.S. Background 9 M.S. and L.S.'s son, D.S., was diagnosed with an autism 10 spectrum disorder -- more specifically, Pervasive Developmental 11 Disorder -- when he was 17 months old.7 12 D.S. began to receive services from the New York State Early 13 Intervention program ("E.I."), including 20 hours per week of 14 special education involving a combination of ABA and other 15 therapy techniques. 16 filed Oct. 29, 2010 ("M.S. J.A."), at 912. 17 occupational and physical therapy. 18 clear that methodologies other than ABA were not working for D.S. 19 His therapy was therefore increased to 30 hours of ABA each week. Immediately thereafter, M.S., Joint Appendix in Court of Appeals 7 Id. He also received Within a year it became Pervasive Developmental Disorder (Not Otherwise Specified) "became the diagnosis applied to children or adults who are on the autism spectrum but do not fully meet the criteria for another [autism-spectrum disorder] such as autistic disorder (sometimes called 'classic' autism) or Asperger Syndrome." What is Autism?, Autism Speaks, http://www.autismspeaks.org/what-autism/pdd-nos (last visited, June 27, 2012). 26 1 By the time D.S. "aged out" of E.I., he was receiving 40 hours of 2 ABA therapy with an SEIT, in addition to five hours per week of 3 speech and occupational therapy and two hours per week of 4 physical therapy, each of them in one-hour sessions. 5 continued to receive this program by mandate of the CPSE. 6 four years old, D.S. was totally non-verbal, engaged in 7 "extremely high rates of self-stimulatory behaviors," and 8 displayed "distractible tendencies [that] profoundly interfere[d] 9 with his learning and ability to attend to people and things in 10 his environment." 11 At edible objects into his mouth. 12 M.S. J.A. 234. D.S. In addition, he often put non- Beginning with the 2007-08 school year, D.S. was 13 considered by the CPSE to be a "school aged" child. He was 14 therefore required to have an IEP created for him by a CSE -- a 15 Committee on Special Education -- rather than an educational plan 16 prescribed by the DOE's CPSE. 17 mother, was notified that the CSE would be meeting to consider 18 the issue. 19 representative responsible for D.S.'s IEP, to schedule the 20 meeting and offered to provide Dr. Bowser with evaluations of 21 D.S. by his then-caregivers. 22 could bring the evaluations to the CSE meeting rather than 23 sending them to Bowser so that she could review them in 24 preparation for the meeting. In late May 2007, L.S., D.S.'s L.S. telephoned Dr. Bowser, the district Dr. Bowser informed L.S. that she 27 1 The CSE convened a meeting on June 4, 2007, to discuss 2 D.S.'s IEP for his kindergarten year. In attendance were, inter 3 alios, (1) L.S.; (2) a special education teacher; (3) a general 4 education teacher; and (4) Dr. Bowser. DOE evaluator Marion 5 Pearl addressed the meeting by phone. The meeting lasted 45 6 minutes. 7 L.S. that although she had a right to have a parent member8 8 present, no parent member was available to attend that day. 9 According to L.S., Bowser appeared "quite stressed" about getting At the beginning of the meeting, Dr. Bowser informed 10 the IEP done by early June. 11 have the meeting" even without a parent member present. 12 J.A. 918. 13 of the parent member. 14 L.S. therefore "felt pressured to M.S. L.S. therefore signed a waiver agreeing to the absence Id. The group received several written reports from D.S.'s 15 educational service providers. D.S.'s occupational therapist 16 reported that D.S.'s progress had been "extremely slow," and that 17 "[i]t is essential that [D.S.] receive[] [occupational therapy] 5 18 times a week for at least 60 minutes in order to make adequate 8 A "parent member" is a parent of another disabled child or a child who was recently "declassified" as disabled who participates in the CSE in order to ensure that the parents understand the IEP-formulation process, are "comfortable" with the IEP team's decisions, and have "had their concerns adequately addressed." Make a Difference. Become a Parent IEP Team Member, N.Y.C. DEP'T OF EDUC., http://schools.nyc.gov/Academics/SpecialEducation/when-is-thenext/parentTeamMember.htm (last visited June 27, 2012). 28 1 progress." 2 of that time, D.S. had "never spoken" and could "not effectively 3 communicate pain or discomfort . . . [or] basic wants or needs." 4 Id. at 247. 5 continue[s] to receive speech and language therapy for no [fewer] 6 than [5] times weekly for [60] minute session to maintain and 7 carryover learned skills thus far, and to help him to communicate 8 spontaneously." 9 M.S. J.A. 251. D.S.'s speech therapist wrote that as She thought it to be "imperative that [D.S.] Id. D.S.'s physical therapist "recommended that [D.S.] 10 continue to receive physical therapy services as per mandate" to 11 continue his improvement. 12 received a report from DOE evaluator Pearl, who, according to 13 L.S., recommended that D.S. be placed in an ABA program. 14 Id. at 249. The CSE group also Jill Weynert, D.S.'s preschool program coordinator and 15 a certified behavior analyst, expressed the view at the IHO 16 hearing that D.S. "absolutely needed a one to one -- he needed an 17 ABA program." 18 hard enough time learning with one to one," and that he "wouldn't 19 be able to learn" in a group setting. 20 stated that unlike most children, D.S. would not benefit from 21 being exposed to peers in a classroom environment because he 22 could not "attend to other kids." 23 24 Id. at 481. Weynert explained that D.S. "had a Id. at 483-84. She also Id. at 484. According to Weynert, there was no discussion at the CSE meeting of D.S.'s progress over the previous year, or whether 29 1 he had achieved any of the annual or short-term goals that the 2 CPSE had theretofore set out for him. 3 before the DOE IHO that during the meeting, Bowser indicated that 4 D.S. would be placed in a 6:1:1 program despite L.S.'s "expressed 5 . . . concerns" about such a placement. 6 requested that the CSE consider programs like the one at the New 7 York City Charter School of Autism, which provides 1:1 ABA 8 therapy. Spaces at the City School of Autism are allocated by 9 lottery. D.S. had not been chosen. L.S. later testified M.S. J.A. 921. L.S. But L.S. hoped the DOE might 10 be able to offer a similar program elsewhere. 11 informed L.S. that "all . . . she could offer at th[e] time . . . 12 was a 6:1:1 placement, that was all that was available." Id. 13 Dr. Bowser Ultimately, D.S.'s IEP did not reflect his progress 14 during the previous year or how that progress might call for 15 altering goals for the subsequent year. 16 photocopied D.S.'s goals and objectives from the previous year's 17 CPSE plan for use in the then-current year despite the fact that 18 those goals and objectives were not only a year old, but had been 19 drafted for the home-based 1:1 program D.S. was offered that year 20 and were therefore, according to M.S. and L.S.'s arguments, 21 inapplicable to the then-current year. 22 23 Instead, the team The CSE, led by Bowser, ultimately recommended in the IEP that they approved for D.S. that he attend a classroom-based 30 1 6:1:1 program in a District 75 school.9 2 committee had considered and rejected five other types of 3 placements, including general education and a 12:1:1 special 4 education class in a District 75 school. 5 however, reflect any consideration by the committee of a 1:1 ABA 6 program. 7 that he receive thirty minutes each of occupational, physical, 8 and speech therapy, five times per week, and thirty minutes of 9 counseling three times weekly. The IEP noted that the The plan did not, The IEP also reduced D.S.'s related services, directing 10 After receiving a final notice of D.S.'s placement at 11 P.S. 94 (part of P.S. 196)10 in late-June 2007, L.S. visited the 12 school, accompanied by Dr. Weynert. 13 the class to which D.S. would be assigned. 14 that the class had only one non-verbal student, and that the book 15 he used for communicating -- his PECS book11 stayed in his desk For two hours, they observed L.S. later reported 9 District 75 "provides citywide educational, vocational, and behavior support programs for students who are on the autism spectrum, have significant cognitive delays, are severely emotionally challenged, sensory impaired and/or multiply disabled. District 75 consists of 56 school organizations, home and hospital instruction and vision and hearing services." Special Education District 75, http://schools.nyc.gov/Offices/District75/default.htm (last visited June 27, 2012). 10 See supra note 6. 11 "Picture Exchange Communication System (PECS) is augmentative/alternative communication strategy for those who display little or no speech." http://www.pecsusa.com/research.php (last visited June 27, 2012); see also supra note 7. 31 1 the entire time she was there, leaving him with no way to 2 communicate. 3 that the non-toilet-trained students in the class were brought to 4 the bathroom every 30 minutes, she did not observe them being 5 taken to the restroom at all in her two hours there. 6 L.S. also noted that although she had been told L.S. also expressed concern that the teachers were not 7 adequately trained, that the students' self-stimulatory behaviors 8 went unchecked, and that D.S.'s "mouthing" behaviors -- i.e., his 9 tendency to put anything and everything in his mouth -- were 10 dangerous and would not be properly monitored at the school. 11 When L.S. raised these issues with P.S. 94's principal 12 Ronnie Schuster, she agreed that "she in fact would be concerned 13 for [D.S.'s] safety" there, particularly if he did not have a 14 paraprofessional devoted to him throughout the day. 15 936. 16 provide ABA programs to some students, but these programs were 17 not individualized and were offered in only part of the special 18 education classroom. 19 strongly that I was in agreement with the experts, the 20 professionals, the doctors, the educators, who had all -- all 21 told me that" D.S. would not fare well in a 6:1:1 setting. 22 at 941. 23 24 M.S. J.A. at Teachers at the school indicated that the school did At the end of the visit, L.S. "felt Id. In light of their discomfort, D.S.'s parents explored private school options for D.S., including the BAC. 32 D.S. was 1 accepted to BAC and another specialized school. 2 chose to enroll him at BAC, which offers only ABA 1:1 teaching. 3 They signed a contract with BAC pledging to pay the $80,000 4 tuition for the 2007-08 school year. 5 His parents By letter dated December 28, 2007, the plaintiffs filed 6 with the DOE a request for an impartial hearing. In the letter, 7 the plaintiffs alleged that the DOE failed to provide D.S. a FAPE 8 for the 2007-08 school year inasmuch as: (1) the CSE team was not 9 properly constituted at the June 4, 2007, meeting at which the 10 individualized education plan was developed, because it lacked a 11 parent member, and the general education teacher was present for 12 only part of the meeting; (2) the IEP failed to set new goals for 13 D.S. for the relevant school year, instead photocopying his goals 14 from the previous year, which had been developed for a 1:1 15 program and did not reflect D.S.'s progress during the prior 16 year; (3) the IEP failed to explain why D.S.'s related services 17 were reduced; and (4) the 6:1:1 program to which D.S. had been 18 assigned could provide neither an appropriate peer group nor 19 adequate supervision and instruction. 20 reimbursement for D.S.'s BAC tuition for that year. 21 The parents sought The IHO convened a hearing comprising six hearing days 22 between April 9, 2008, and October 8, 2008. 23 DOE called as witnesses: (1) Dr. Bowser; (2) Alex Campbell, a 24 special education teacher who was in charge of the 6:1:1 class to 33 At the hearing, the 1 which the IEP had assigned D.S.; and (3) Susan Cruz, an assistant 2 principal of P.S. 94, who testified generally about the school. 3 Bowser was the DOE's principal witness. 4 she had not met or observed D.S., her review of his records 5 convinced her that a general education setting was not 6 appropriate for him. 7 CSE meeting agreed with that assessment, and that the IEP 8 therefore required specialized schooling with the addition of 9 twelve months of related services. 10 She testified that while She stated that all parties present at the Dr. Bowser endorsed the 6:1:1 placement, explaining 11 that a small class size was required because D.S. "must be 12 carefully supervised at all times during the day, because he [is] 13 unaware of danger." 14 conceded that she did not know of any program other than 6:1:1 15 that the DOE could offer to autistic children, thereby implying 16 that she did not consider whether a 1:1 program might be more 17 appropriate. 18 all necessary, explaining that although D.S. would receive fewer 19 hours of in-home services, he would be receiving similar services 20 in the classroom setting, so that "in effect, he would be getting 21 more services." 22 M.S. J.A. at 55-56. However, Bowser later She further stated that the related services were Id. at 60. Dr. Bowser conceded that the CSE team had incorporated 23 goals for D.S. that had been photocopied from the prior year's 24 plan, but stated that they had discussed "every goal," and 34 1 determined that each was still appropriate because it had not yet 2 been met. 3 reviewed the evaluations from D.S.'s treating doctors and 4 therapists, and that she agreed with most of them but disagreed 5 with one doctor's recommendation that D.S. required attention 6 seven days a week. 7 Id. at 61. Dr. Bowser further stated that she had Alex Campbell, a special education teacher with seven 8 years' experience and training in various methodologies including 9 ABA, TEACCH, and PECS, also testified. Campbell, who would have 10 been D.S.'s teacher had D.S. attended public school, testified 11 that 6:1:1 learning can be appropriate for autistic children 12 because it can provide them with both individualized attention 13 and opportunities for group work. 14 autistic children in her class in 2007-08, all of them around 15 D.S.'s age, and that she maintained frequent and open 16 communication with all the students' parents by phone and by 17 notebook that was passed back and forth between school and home. 18 She reported that all the students progressed over the course of 19 the year. She said that there were four 20 The plaintiffs called several witnesses. 21 was Dr. Weynert, D.S.'s program coordinator from 2005-2007. 22 According to Weynert, D.S. initially, in 2005, "presented . . . 23 really no notable functional skills. 24 high rates of self-stimulatory behaviors -- verbal and motor. 35 Their first He engaged in extremely He 1 was unable to . . . play with any toy in the way it was intended. 2 . . 3 behaviors." 4 toughest time learning," but that after almost two years of 5 intensive 1:1 ABA therapy for up to 35 hours a week, and many 6 hours per week of related services, D.S. was able to "learn how 7 to learn." 8 easily distracted, and continued to engage in high rates of self- 9 stimulatory behavior. 10 [A]ny object was used to engage in self-stimulatory Id. at 471. Id. at 474. She testified that D.S. "had the He nonetheless remained non-verbal and Weynert opined that 1:1 instruction was "absolutely" the proper course for D.S. Id. at 481. 11 Dr. Weynert also testified that at the June 2007 CSE 12 meeting, the committee engaged in no discussion of methodology 13 other than listening to Weynert's recommendation that D.S. be 14 provided ABA 1:1 instruction. 15 services, Weynert testified that she "strongly, strongly advised 16 against" the reduction of D.S.'s various therapies, but that the 17 CSE told her that "[t]hat's [all] they could do." 18 Weynert explained that 30-minute sessions would be unproductive 19 for D.S. because "to engage [him] takes some time. . . . 20 half an hour, by the time you sat down with him and really began 21 to do anything your session would be over." With regard to D.S.'s related Id. at 493. And a Id. at 494. 22 During her testimony, Weynert discussed the visit she 23 and L.S. had made to P.S. 94 to observe the class to which D.S. 24 had been assigned. She reported that the teacher had "minimal" 36 1 ABA training and that any ABA instruction was not tailored to the 2 individual children. 3 scolding a non-verbal child who was seeking attention rather than 4 helping him communicate. 5 collected on the children's behaviors and no "behavior reduction 6 plans" were in place. 7 that she had visited BAC before D.S. enrolled there, and had been 8 impressed with that program. 9 she had never observed D.S. himself in a BAC classroom. 10 She reported that the assistant teacher was Weynert said that no data was being Id. at 499-500. She further testified Weynert did concede, however, that The plaintiffs also called Jaime Nicklas, the BAC 11 director who also testified in P.H.'s due process hearing. She 12 explained that BAC offers full-time 1:1 ABA education to five 13 autistic students each year. 14 not the only methodology that can be used to educate children on 15 the autistic spectrum, id. at 569, she stated that it was the 16 most appropriate program for D.S. based on his "severe[]" autism 17 and his need for "intensive one on one services." 18 Nicklas explained that during a typical day at BAC, D.S. would 19 work with five different instructors who would rotate between the 20 students to ensure that a child could generalize what he had 21 learned. 22 children during non-academic activities. 23 offer related services such as speech therapy in school. 24 Instead, the students receive those services at home. While she acknowledged that ABA is Id. at 572. He had opportunities to interact with mainstreamed 37 BAC does not, however, Id. at 1 608. Nicklas testified that D.S. has made "a lot of progress" at 2 BAC; his speech, while challenging, "is coming along," and "his 3 behaviors have gotten a lot better." 4 D.S. now "walks with his hands in his pockets. 5 behavior has decreased significantly"; "his awareness has seemed 6 to increase." 7 Id. at 603. For example, His tapping Id. Finally, L.S., D.S.'s mother, testified. In addition 8 to providing basic background information on D.S., she discussed 9 her experiences at the CSE meeting and observing the proposed 10 placement at P.S. 94. She said that at BAC, D.S. had continued 11 to learn to communicate using an augmentative device called a 12 Dyanvox, that his ability to identify shapes, items, and body 13 parts had increased, and that his motor and play skills had 14 improved. 15 By opinion dated October 22, 2008, the IHO rejected the 16 plaintiffs' challenge, concluding that the DOE had offered D.S. a 17 FAPE for the 2007-08 school year. 18 procedural complaints, while the IHO acknowledged that some of 19 the proceedings, including the DOE's practice of encouraging 20 parents to waive the participation of a parent member, were 21 troubling, the IHO thought that they did not rise to the level of 22 the denial of a FAPE. 23 provided sufficient opportunity to participate meaningfully in 24 the CSE meeting, and that the limited involvement of the general As to the plaintiffs' The IHO further found that L.S. was 38 1 education teacher was not material in light of the agreement by 2 all CSE members that general education was not appropriate for 3 D.S. 4 The IHO was also untroubled by the IEP's wholesale 5 importing of D.S.'s goals from the previous year. 6 view, those goals remained appropriate in light of the testimony 7 that D.S. learned very slowly. 8 9 In the IHO's As for the plaintiffs' objections to the substance of the IEP, the IHO concluded that the 6:1:1 class was 10 "substantively appropriate and calculated for [D.S.] to make 11 educational progress." 12 Appendix ("M.S. S.P.A.") at 78. 13 Bowser's testimony explaining the rationale for placing D.S. in a 14 6:1:1 setting, including that it would "address[] a lot of the 15 issues that were being brought up in the IEP," and would "enable 16 [D.S.] to make some success, improve his skills, and get 17 individualized assistance, with people who understand autism." 18 Id. at 79. 19 "looked very carefully at [D.S.'s] need to be carefully 20 supervised at all times," and had taken that into account in 21 assigning him to a class with one teacher and one 22 paraprofessional. M.S. v. N.Y.C. Dep't of Educ., Special Specifically, the IHO cited Dr. The IHO was persuaded that the CSE committee had Id. 23 With regard to the reduction in D.S.'s related 24 services, the IHO noted that D.S. had received the IEP-authorized 39 1 services during the 2007-08 school year in the amounts specified 2 in the IEP, and that L.S. testified that D.S. nonetheless had 3 made progress. 4 "precluded from making the argument that the [related services] 5 amount recommended [was] inappropriate." 6 The IHO therefore concluded that the parents were Id. at 83. With regard to methodology, the IHO decided that 7 although the people treating D.S. all recommended that he 8 continue in 1:1 ABA, "the people who recommended it believed that 9 it was the only methodology that worked and were not open to 10 other approaches." 11 Weynert and Nicklas to support this conclusion. 12 also noted that an IEP "need not specify or provide one type of 13 methodology," but that it "must provide for specialized 14 instruction in the child's areas of need." 15 satisfied that D.S.'s IEP met that requirement. 16 the IHO rejected the parents' argument that the P.S. 94 teachers 17 were not "sufficiently trained and knowledgeable regarding 18 [D.S.'s] needs." 19 amply supported the finding that the teachers were qualified. 20 21 Id. at 84. Id. at 85. The IHO cited the testimony of Id. Id. But the IHO The IHO was Id. Finally, The IHO concluded that the evidence For the foregoing reasons, the IHO denied the parents reimbursement for the $80,000 BAC tuition. 22 Id. The parents, M.S. and L.S., appealed the IHO's decision 23 to an SRO. 24 the appeal. By decision dated January 9, 2009, the SRO dismissed Id. at 65. After summarizing the factual and 40 1 procedural history at some length, the SRO briefly considered the 2 parties' arguments. 3 procedural defects, concluding that, "[b]ased on the hearing 4 record and the particular facts before [him], and upon a complete 5 and independent review of the hearing record, [he was] not 6 persuaded that the [IHO] erred in finding . . . that the student 7 was offered a FAPE for the 2007-08 school year." 8 SRO did not discuss any of the procedural or substantive 9 arguments individually, instead rehearsing the language of the He first addressed the IEP's alleged Id. at 65. 10 regulations implementing the IDEA and then stating that he 11 "f[ound] no need to modify the [IHO's] decision." 12 of this conclusion, the SRO, like the IHO, did not reach the 13 question whether BAC was an appropriate unilateral placement. 14 The Id. 15 Id. In light On May 8, 2009, the plaintiffs filed a complaint in the 16 United States District Court for the Southern District of New 17 York seeking review of the SRO's decision. 18 judge to whom the case was assigned, Hon. Lewis A. Kaplan, 19 referred the case to Magistrate Judge James C. Francis IV for 20 further proceedings, including a Report and Recommendation on any 21 dispositive motion. 22 N.Y.C. Dep't of Educ., 09 Civ. 4454 (LAK)(JCF) (S.D.N.Y. Mar. 12, 23 2010), ECF No. 25 ("R&R"). 24 the parties cross-moved for summary judgment. The district court See Report & Recommendation, M.S. & L.S. v. By motions filed on October 21, 2009, 41 1 On March 12, 2010, the magistrate judge recommended 2 that the district court deny the plaintiffs' motion and grant the 3 DOE's, thereby leaving in place the IHO's findings that the DOE 4 provided D.S. with a FAPE for 2007-08. 5 judge set forth in the R&R a detailed factual history of the 6 case, summarizing the testimony before the IHO. 7 to the issue he thought dispositive: the degree of deference owed 8 to administrative decision makers in IDEA cases. 9 He found this case to be indistinguishable from Grim for purposes R&R at 1. The magistrate He then turned Id. at 34-35. 10 of determining the standard-of-review. 11 the IDEA "strictly limit[s] judicial review of state 12 administrative decisions." 13 380-81). 14 goals and strategies in an IEP is precisely the type of issue 15 upon which the IDEA requires deference to the expertise of 16 administrative officers." 17 382). 18 was required to defer "to administrative decisions on most issues 19 relating to educational policy, whether or not they are 20 controversial." 21 22 23 24 25 26 27 There, we concluded that R&R at 34 (quoting Grim, 346 F.3d at He noted Grim's instruction that "the sufficiency of Id. at 36 (quoting Grim, 346 F.3d at With this in mind, the magistrate judge determined that he Id. He said that although a court would be adept at determining if [the CSE] properly made [a determination about how to educate a child], . . . this Circuit leaves little room to analyze substantive deficiencies in the evidence presented by the DOE at the hearing. Instead, case law appears to indicate that as long a[s] the DOE 42 1 2 3 4 5 6 is able to produce an expert to support its position at a hearing and receives a positive determination by at least one of the administrative officers, the DOE's position is nearly assured victory in the federal courts. 7 Id. at 36-37 (citations omitted). 8 "question[ed] whether the degree of deference to educational 9 administrators required by Grim[] and other Second Circuit cases The magistrate judge 10 is consistent with the intent of Congress when it passed the 11 IDEA," but concluded that he was "nonetheless bound by those 12 decisions." 13 Id. at 41. The magistrate judge then addressed the merits of the 14 plaintiffs' arguments. As for the plaintiffs' procedural 15 challenges to the IEP, he noted that he was required to defer "to 16 the determinations of the SRO and IHO regarding the prejudicial 17 impact" of any procedural irregularities, id. at 43 (desribing 18 Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 426 19 (S.D.N.Y. 2007), aff'd, 293 F. App'x 20 (2d Cir. 2008)), even 20 though he thought it "unclear why such deference is appropriate, 21 given that determining procedural compliance with the IDEA does 22 not appear to require expertise in the field of education," R&R 23 at 43-44. 24 With regard to the composition of the CSE, the 25 magistrate judge concluded that any error in urging L.S. to waive 26 the presence of a parent member did not rise to the level of 43 1 denying D.S. a FAPE. 2 that "they were denied meaningful participation in the 3 development of D.S.'s IEP because the CSE failed to rely on 4 current evaluations of D.S.," id. at 46, he concluded that 5 "[a]lthough the plaintiffs' claims . . . are troubling, they do 6 not establish impermissible predetermination [of the IEP] in view 7 of Dr. Bowser's testimony and the deference afforded SRO and IHO 8 determinations under this Circuit's precedent," id. at 48. 9 Id. at 44-46. As for the parents' argument On the last alleged procedural error, the incorporating 10 of D.S.'s goals from the prior year into the 2007-08 IEP, the 11 magistrate judge expressed "skepticism that all 22 pages of goals 12 and short-term objectives were reviewed in the course of [the] 13 45-minute [CSE] meeting that was not solely focused on this 14 information," but concluded that the court "[could not] disagree 15 with the IHO's ultimate conclusion." 16 Id. at 50. Turning to the plaintiffs' challenge to the substantive 17 adequacy of the IEP, the magistrate judge "agree[d] with the 18 plaintiffs that it is doubtful that D.S.'s IEP was sufficiently 19 individualized [and] . . . share[d] their concern that D.S. would 20 not progress at P.S. 94." 21 himself "constrained to defer to the determination of the IHO and 22 SRO" that the IEP was substantively appropriate, id. at 55, 23 despite the testimony by "[t]hose who had met and evaluated 24 [D.S., who] insisted that he required 1:1 ABA therapy in order to Id. at 54. 44 He nevertheless thought 1 progress." Id. at 54. In reluctantly reaching this conclusion, 2 the magistrate judge wrote: 3 experience working with the child at issue [i.e., D.S.'s 4 examining doctors, therapists and SEIT instructor] do not receive 5 similar deference" to the administrative review officers. 6 55. "[I]t is curious that experts with Id. at 7 The plaintiffs filed objections to the R&R. By order 8 dated May 14, 2010, however, the district court adopted the R&R 9 in its entirety. See Order, M.S. & L.S. v. N.Y.C. Dep't of 10 Educ., 09 Civ. 4454 (LAK)(JCF) (S.D.N.Y. May 14, 2010), ECF. No. 11 32. 12 judge only as to the suggestion that he might have decided the 13 matter differently but for feeling constrained by the degree of 14 deference owed to administrative decisions in this context under 15 established Second Circuit precedent." 16 court's view, "[i]t [was] entirely unnecessary for [it] to 17 express any view on that question." 18 granted the defendant's motion for summary judgment. The court noted that it "differ[ed] from the magistrate 19 Id. Id. In the district The court therefore DISCUSSION 20 I. Deference Owed to Administrative Findings 21 "Our standard for reviewing a state's administrative 22 decisions in IDEA cases is . . . well established." 23 N.Y.C. Dep't of Educ., 584 F.3d 412, 417 (2d Cir. 2009), cert 24 denied, 130 S. Ct. 3277 (2010). T.Y. v. "The responsibility for 45 1 determining whether a challenged IEP will provide a child with an 2 appropriate public education rests in the first instance with 3 administrative hearing and review officers. 4 then subject to 'independent' judicial review." 5 F.3d at 129. 6 reviewing state educational decisions under the IDEA is 7 'circumscribed.'" 8 F.3d at 380-81 (interpreting the IDEA as "strictly limiting 9 judicial review of state administrative decisions"). Their rulings are Walczak, 142 Nonetheless, "the role of the federal courts in Gagliardo, 489 F.3d at 112; see also Grim, 346 A reviewing 10 court "must engage in an independent review of the administrative 11 record and make a determination based on a 'preponderance of the 12 evidence.'" 13 U.S. at 206. 14 the courts to substitute their own notions of sound educational 15 policy for those of the school authorities which they review." 16 Rowley, 458 U.S. at 206. 17 Gagliardo, 489 F.3d at 112; see also Rowley, 458 But such review "is by no means an invitation to "To the contrary, federal courts reviewing 18 administrative decisions must give 'due weight' to these 19 proceedings, mindful that the judiciary generally 'lacks the 20 specialized knowledge and experience necessary to resolve 21 persistent and difficult questions of educational policy.'" 22 Gagliardo, 489 F.3d at 113 (quoting Rowley, 458 U.S. at 206, 208) 23 (brackets omitted); see also Walczak, 142 F.3d at 129 ("While 24 federal courts do not simply rubber stamp administrative 46 1 decisions, they are expected to give 'due weight' to these 2 proceedings . . . .") (citation omitted). 3 not to make "subjective credibility assessment[s]," and cannot 4 "ch[oose] between the views of conflicting experts on . . . 5 controversial issue[s] of educational policy . . . in direct 6 contradiction of the opinions of state administrative officers 7 who had heard the same evidence." 8 Supreme Court has said, "once a court determines that the 9 requirements of the Act have been met, questions of methodology 10 11 are for resolution by the States." District courts are Grim, 346 F.3d at 383. As the Rowley, 458 U.S. at 208. Courts generally "defer to the final decision of the 12 state authorities, even where the reviewing authority disagrees 13 with the hearing officer." 14 the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009) 15 (quoting Karl ex rel. Karl v. Bd. of Educ. of Geneseo Cent. Sch. 16 Dist., 736 F.2d 873, 877 (2d Cir. 1984)) (internal quotation 17 marks omitted). 18 earlier decision of the IHO, the IHO's decision may be afforded 19 diminished weight." 20 marks omitted); see also Gagliardo, 489 F.3d at 114 n.2 (same). 21 "Deference is particularly appropriate when . . . the state 22 hearing officers' review has been thorough and careful." 23 Walczak, 142 F.3d at 129. 24 must be "reasoned and supported by the record" to warrant A.C. ex rel. M.C. v. Bd. of Educ. of "If the SRO's decision conflicts with the A.C., 553 F.3d at 171 (internal quotation The SRO's or IHO's factual findings 47 1 deference. 2 district court's decision under the IDEA, deference to 3 "administrative proceedings is particularly warranted where . . . 4 the district court's decision was based solely on the 5 administrative record." 6 Gagliardo, 489 F.3d at 114. And in our review of a A.C., 553 F.3d at 171. These principles are more easily stated by appellate 7 courts, even if at some length, than they are applied by district 8 courts, as the cases before us illustrate. 9 M.H. repeatedly quoted to our language in Gagliardo that a state The district court in 10 administrative finding does not merit deference unless it is 11 "reasoned and supported by the record," 489 F.3d at 114. 12 e.g., M.H., 712 F. Supp. 2d at 154, 157, 161, 163. 13 magistrate judge in M.S., by contrast, articulated a highly 14 restricted standard of review, relying in particular on Grim to 15 decide that "as long a[s] the DOE is able to produce an expert to 16 support its position at a hearing and receives a positive 17 determination by at least one of the administrative officers, the 18 DOE's position is nearly assured victory in the federal courts." 19 R&R at 37. 20 See, The The Supreme Court has only considered the standard of 21 review in these circumstances once. 22 court had held, contrary to New York school administrative 23 officers whose decisions it was reviewing, that the child, a deaf 24 student, had not been provided with a FAPE. 48 In Rowley, the district Rowley v. Bd. of 1 Educ. of Hendrick Hudson Cent. Sch. Dist., 483 F. Supp. 528, 529 2 (S.D.N.Y. 1980). 3 district had not given the student "an opportunity to achieve 4 [her] full potential commensurate with the opportunity provided 5 to other children." 6 Rowley v. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., 632 7 F.2d 945, 946 (2d Cir. 1980). 8 According to the district court, the school Id. at 534. The Court of Appeals affirmed. The Supreme Court reversed. It observed that 9 "[n]oticeably absent from the language of the statute is any 10 substantive standard prescribing the level of education to be 11 accorded handicapped children." 12 light of Congressionally expressed intent to provide disabled 13 children with some educational opportunity, however, the Court 14 concluded that the Act provided only for a "'basic floor of 15 opportunity' . . . consist[ing] of access to specialized 16 instruction and related services which are individually designed 17 to provide educational benefit to the handicapped child." 18 201. 19 Rowley, 458 U.S. at 189. In Id. at The Court then considered the meaning of the provisions 20 governing the district court's resolution of civil complaints 21 brought under the Act. 22 reference to courts deciding issues based upon a preponderance of 23 the evidence means that the Act requires "de novo review over 24 state educational decisions and policies." The parents had argued that the Act's 49 Id. at 205. The 1 State countered that courts "are given only limited authority to 2 review for state compliance with the Act's procedural 3 requirements and no power to review the substance of the state 4 program." 5 Id. The Supreme Court found neither view persuasive. 6 Congress had substituted the "independent decision based on a 7 preponderance of the evidence" language for "language that would 8 have made state administrative findings conclusive if supported 9 by substantial evidence." Id. at 205 (brackets omitted). 10 Therefore, Congress clearly intended for courts to have some 11 independent ability to review the decisions of administrative 12 officers. 13 procedural protections afforded parents and children, however, 14 "demonstrates the legislative conviction that adequate compliance 15 with the procedures prescribed would in most cases assure much if 16 not all of what Congress wished in the way of substantive content 17 in an IEP." 18 reviewing court base its decision on the 'preponderance of the 19 evidence' is by no means an invitation . . . to substitute [its] 20 own notions of sound educational policy for those of the school 21 authorities which [it] review[s]." 22 Id. The fact that Congress had placed emphasis on the Id. at 206. For this reason, "the provision that a Id. The Rowley Court continued: "The fact that [the IDEA] 23 requires that the reviewing court 'receive the records of the 24 [state] administrative proceedings' carries with it the implied 50 1 requirement that due weight shall be given to these proceedings." 2 Id. (second alteration in original). 3 4 5 6 7 8 9 10 11 Congress' intention was not that the Act displace the primacy of States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped. Therefore, once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States. Id. at 208. 12 With this framework in place, the Court decided that 13 review should proceed on two levels: 14 should ask whether the State has complied with the "procedures 15 set forth by the act." 16 should decide whether "the individualized educational program 17 developed through the Act's procedures [is] reasonably calculated 18 to enable the child to receive educational benefits." 19 206-07. 20 Id. at 206. First, the district court And, second, the court Id. at Rowley left many issues unresolved, including: How 21 much weight is "due" to the administrative rulings? 22 difference between administrative rulings that appear grounded in 23 findings of fact and those based on conclusions of law? 24 a different level of deference owed to questions of procedural 25 compliance as opposed to substantive compliance? 26 courts treat a question of appropriate educational methodology 51 Is there a Is there And how should 1 that is bound up with a determination of whether the requirements 2 of the Act have been met? 3 In Walczak, we considered a district court's decision, 4 contrary to the determinations of state and local administrative 5 officers, that the school district had not provided an IEP that 6 was adequate to permit the disabled child to "make educational 7 and social progress." 8 determine how a federal court could conduct an "independent" 9 review pursuant to the IDEA without "impermissibly meddling in Walczak, 142 F.3d at 123. We sought to 10 state educational methodology." Id. at 130 (internal quotation 11 marks omitted). 12 substantive adequacy of the IEP is challenged, the district 13 court's review is limited to an examination of "'objective 14 evidence' indicating whether the child is likely to make progress 15 or regress under the proposed plan." 16 no objective evidence that the student had regressed, but there 17 was clear evidence of achievement, including her advancement to a 18 higher-level mathematics workbook. 19 v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006) 20 (applying "objective evidence" standard to determine whether a 21 parent's placement of a child in private school was appropriate), 22 cert. denied, 552 U.S. 985 (2007). 23 insufficient evidence to support the district court's rejection 24 of the administrative findings. We concluded that at least in cases where the 52 Id. In Walczak there was Id. at 131; see also Frank G. There was, therefore, 1 In Grim we considered the district court's 2 determination that two IEPs developed for a student in two 3 successive school years were substantively and procedurally 4 flawed. 5 requirement that courts give "due weight" to administrative 6 bodies implementing the statute applied to both "substantive" and 7 "procedural" challenges. 8 the district court had not applied the proper standard of review 9 in rejecting the IHO's and SRO's findings that the IEPs were 10 Grim, 346 F.3d at 380. First, we observed that Rowley's Id. at 382-83. Then we concluded that appropriate. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 [The district court] justified its conclusion by finding that '[n]either the IHO nor the SRO [reviewing the . . . IEPs] gave appropriate consideration to the experts on dyslexia, who had personal knowledge of the student in question.' Accordingly, in violation of Rowley, the District Court impermissibly chose between the views of conflicting experts on a controversial issue of educational policy -- effective methods of educating dyslexic students -- in direct contradiction of the opinions of state administrative officers who had heard the same evidence. 25 Id. at 383 (citation omitted; second and third brackets in 26 original). 27 to administrative determinations involving educational 28 methodology even where they address the question of whether the 29 state has provided the student with the basic floor of 30 opportunity that the Act requires. We therefore decided that a district court must defer 53 Id. 1 In Gagliardo, we considered a district court's 2 conclusion that the school district's placement of a child in a 3 private school was inappropriate even though state administrative 4 officers had deemed it appropriate. 5 07. 6 expert's statement that the child needed a school setting that 7 was "therapeutic or supportive," even though that same expert had 8 later explained that the "thrust of his recommendation . . . was 9 that [the child] be placed in a school where trained Gagliardo, 489 F.3d at 106- The district court had based its determination on one 10 professionals could work closely with him and assist him as 11 issues associated with his disorder surfaced throughout the day." 12 Id. at 114 (emphasis omitted). 13 flawed. 14 interpretation of the meaning of expert testimony, as opposed to 15 a dispute over methodology, we nonetheless concluded that the 16 district court owed the findings of the administrative hearing 17 officer deference. 18 issued a decision that was "reasoned and supported by the 19 record." 20 district court. 21 Id. We thought that reasoning to be Although the district court had addressed the Id. The officer had considered the testimony and It therefore should not have been disturbed by the Id. The parties and amici urge us to articulate a bright- 22 line standard to be applied by district courts in reviewing state 23 administrative decisionmaking in IDEA cases. 24 Council of Parent Attys. & Advocates Amicus Br. 5 (suggesting 54 See, e.g., M.H., 1 that the court should "(1) review legal conclusions of 2 administrative decisions de novo without giving due weight to the 3 administrative decisions; (2) review mixed questions of law and 4 fact, such as whether the school district offered a FAPE, de novo 5 without giving due weight to the administrative decisions; (3) 6 give due weight to the factual findings of the administrative 7 decisions that are supported by the preponderance of the 8 evidence; and (4) defer to the educational policies recommended 9 by school officials if the court determine[s] that [the] school 10 district complied with the requirements of the Act"). 11 subsequent decisions of this Court favor a different approach, 12 however. 13 Rowley and Rowley left unresolved the question of the weight due 14 administrative determinations because that weight will vary based 15 on the type of determination at issue. 16 district court must base its decision on "the preponderance of 17 the evidence." 18 complicated, though, by the fact that it occurs in the context of 19 a complex statutory scheme involving institutional actors at 20 different levels and within different branches of state and 21 federal government. 22 Pursuant to statute, the 20 U.S.C. § 1415(i)(2)(C)(iii). This analysis is As the First Circuit has explained, the standard for 23 reviewing administrative determinations "requires a more critical 24 appraisal of the agency determination than clear-error 55 1 review . . . but . . . nevertheless[] falls well short of 2 complete de novo review. . . . 3 oversight, the persuasiveness of a particular administrative 4 finding, or the lack thereof, is likely to tell the tale." 5 v. Portland Sch. Comm., 998 F.2d 1083, 1086-87 (1st Cir. 1993) 6 (internal citations omitted). 7 We agree. [I]n the course of th[is] Lenn In many determinations made by 8 administrative officers, the district court's analysis will hinge 9 on the kinds of considerations that normally determine whether 10 any particular judgment is persuasive, for example whether the 11 decision being reviewed is well-reasoned, and whether it was 12 based on substantially greater familiarity with the evidence and 13 the witnesses than the reviewing court. 14 determination of the persuasiveness of an administrative finding 15 must also be colored by an accute awareness of institutional 16 competence and role. 17 the purpose of the IDEA is to provide funding to states so that 18 they can provide a decent education for disabled students 19 consistent with their traditional role in educating their 20 residents. 21 at 53 ("The core of the statute. . . is the cooperative process 22 that it establishes between parents and schools."). 23 the states' adjudication of IDEA matters, the courts are required But the district court's As the Supreme Court made clear in Rowley, Rowley, 458 U.S. at 208 n.30; cf. Schaffer, 546 U.S. 56 In policing 1 to remain conscious of these considerations in determining the 2 weight due any particular administrative finding. 3 By way of illustration, determinations regarding the 4 substantive adequacy of an IEP should be afforded more weight 5 than determinations concerning whether the IEP was developed 6 according to the proper procedures. 7 Decisions involving a dispute over an appropriate educational 8 methodology should be afforded more deference than determinations 9 concerning whether there have been objective indications of See Cerra, 427 F.3d at 195. 10 progress. Compare Grim, 346 F.3d at 382-83, with Walczak, 142 11 F.3d at 130. 12 reasoning should be provided more deference than decisions that 13 are not. 14 more deference when its review is based entirely on the same 15 evidence as that before the SRO than when the district court has 16 before it additional evidence that was not considered by the 17 state agency. 18 II. 19 The "IDEA established a two-part inquiry for courts Determinations grounded in thorough and logical See id. at 129. And the district court should afford Issues for Judicial Review 20 reviewing [state] administrative determinations" under the IDEA. 21 Grim, 346 F.3d at 381. 22 complied with the procedures set forth in the Act." 23 Second, the court asks whether the IEP "developed through the 24 Act's procedures [is] reasonably calculated to enable the child First, the court asks whether "the State 57 Id. 1 to receive educational benefits." 2 at 206-07). 3 substantively -- the court then asks "whether the private 4 schooling obtained by the parents [for the child] is appropriate 5 to the child's needs." 6 third question, "equitable considerations relating to the 7 reasonableness of the action taken by the parents are relevant." 8 Id. (alteration and internal quotation marks omitted). 9 A. 10 Id. (quoting Rowley, 458 U.S. If an IEP is deficient -- either procedurally or T.P., 554 F.3d at 252. In answering this Procedural Compliance "The initial procedural inquiry is no mere formality." 11 Walczak, 142 F.3d at 129. 12 arbitrary or erroneous decisionmaking.'" 13 of Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 (S.D.N.Y. 14 1996) (quoting Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 15 1041 (5th Cir. 1989)). 16 will render an IEP legally inadequate. 17 Relief is warranted only if the alleged procedural inadequacies 18 "(I) impeded the child's right to a [FAPE]; (II) significantly 19 impeded the parents' opportunity to participate in the 20 decisionmaking process regarding the provision of [a FAPE] to the 21 parents' child; or (III) caused a deprivation of educational 22 benefits," 20 U.S.C. § 1415(f)(3)(E)(ii). 23 24 It acts as "'a safeguard against Evans v. Bd. of Educ. Of course, not every procedural error Grim, 346 F.3d at 381-82. Under the IDEA and its implementing regulations, an IEP must contain: (1) the student's present levels of academic 58 1 achievement and functional performance; (2) measurable annual 2 goals for the child; (3) the method used to measure the student's 3 progress toward those goals; (4) the special education and 4 related services that the IEP recommends; (5) an explanation of 5 the extent to which the student will be educated with 6 "nondisabled" peers; (6) the reasons for any alternate 7 assessments; and (7) the start date for recommended services, 8 their duration, and their frequency. 9 8 NYCRR tit. 8 § 200.4(d)(2). 10 20 U.S.C. § 1414(d)(1)(A); Specifically with respect to the goals that must be 11 included in any IEP, the IDEA and its regulations require that 12 the IEP include short-term and long-term academic and non- 13 academic goals for each student, as well as evaluative procedures 14 for measuring a student's progress in achieving the short- and 15 long-term goals contained in the IEP. 16 § 1414(d)(1)(A)(i)(III) (directing that IEP include "a 17 description of how the child's progress toward meeting the annual 18 goals . . . will be measured"); 34 C.F.R. § 300.320(a)(2)-(3); 19 NYCRR tit. 8, § 200.4(d)(2)(ii). 20 B. 21 See 20 U.S.C. Substantive Compliance The IDEA does not itself articulate any specific level 22 of educational benefits that must be provided through an IEP. 23 The "'appropriate' education" mandated by IDEA does not require 24 states to "maximize the potential of handicapped children." 59 1 Rowley, 458 U.S. at 189-90, 196 n. 21. (quotation marks omitted). 2 The purpose of the Act was instead "more to open the door of 3 public education to handicapped children on appropriate terms 4 than to guarantee any particular level of education once inside." 5 Id. at 192; accord Walczak, 142 F.3d at 130; Lunceford v. Dist. 6 of Columbia Bd. of Educ., 745 F.2d 1577, 1583 (D.C. Cir. 1984) 7 (Ruth Bader Ginsburg, then-Judge)(because public "resources are 8 not infinite," federal law "does not secure the best education 9 money can buy; it calls upon government, more modestly, to 10 provide an appropriate education for each [disabled] child." 11 (emphasis omitted)). 12 C. 13 Appropriateness of Alternative Placement Parents who think that the state has failed to provide 14 their child with a FAPE as required under the IDEA, 20 U.S.C. 15 § 1412(a)(1)(A), may pay for private services and seek 16 reimbursement from the school district for "'expenses that it 17 should have paid all along and would have borne in the first 18 instance had it developed a proper IEP.'" 19 (quoting Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 20 U.S. 359, 370-71 (1985)). 21 T.P., 554 F.3d at 252 In making a claim for reimbursement, "the burden shifts 22 to the parents to demonstrate that the school in which they have 23 chosen to enroll their child is appropriate." 24 F.3d at 112. Gagliardo, 489 The educational program at the alternative 60 1 placement must be "reasonably calculated to enable the child to 2 receive educational benefit." 3 However, "even where there is evidence of success [in the private 4 placement], courts should not disturb a state's denial of IDEA 5 reimbursement where . . . the chief benefits of the chosen school 6 are the kind of . . . advantages . . . that might be preferred by 7 parents of any child, disabled or not." 8 115. 9 appropriate if it provides education instruction specifically Id. (quotation marks omitted). Gagliardo, 489 F.3d at Rather, the "unilateral private placement is only 10 designed to meet the unique needs of a handicapped child." 11 (emphasis in original; quotation marks omitted). 12 13 III. Id. Analysis of Claims in M.H. A. Prefatory Observation 14 The district court in M.H. had before it the 15 conclusions of two different administrative officers, the IHO and 16 the SRO, who came to opposite conclusions as to the procedural 17 and substantive adequacy of the IEP at issue. 18 Grim's instruction as to the deference owed to such 19 administrative decisions by the court because of the 20 administrators' "expertise" in such matters, Grim, 346 F.3d at 21 382, the district court thus had available to it sharply 22 conflicting administrative views. 23 the SRO's decision, the court often relied on the carefully 24 articulated contrary observations, insights, and conclusions of 61 In following As we will see, in reviewing 1 the IHO. We think that to have been entirely proper. 2 See A.C., 553 F.3d at 171. 3 Where the IHO and SRO disagree, reviewing courts are 4 not entitled to adopt the conclusions of either state reviewer 5 according to their own policy preferences or views of the 6 evidence; courts must defer to the reasoned conclusions of the 7 SRO as the final state administrative determination. 8 when (as here) the district court appropriately concludes that 9 the SRO's determinations are insufficiently reasoned to merit 10 that deference, and in particular where the SRO rejects a more 11 thorough and carefully considered decision of an IHO, it is 12 entirely appropriate for the court, having in its turn found the 13 SRO's conclusions unpersuasive even after appropriate deference 14 is paid, to consider the IHO's analysis, which is also informed 15 by greater educational expertise than that of judges, rather than 16 to rely exclusively on its own less informed educational 17 judgment. 18 B. 19 However, Procedural Compliance The district court in M.H. concluded that the IEP was 20 procedurally deficient in its formulation of goals for P.H. 21 because the "annual academic goals and objectives stated on 22 P.H.'s IEP are based on P.H.'s expected grade level and not on 23 his actual needs and abilities." 24 In so concluding, the court deferred to the IHO's determination, 62 M.H, 712 F. Supp. 2d. at 155. 1 but declined to defer to the SRO's findings to the contrary 2 because they were not, in the district court's opinion, "thorough 3 and careful." 4 Although the IHO based her decision on both the annual academic 5 goals and the short-term non-academic objectives reflected by the 6 IEP, the SRO addressed only the annual academic goals. 7 8 9 10 11 12 13 14 15 16 Id. at 162 (internal quotation marks omitted). The district court elaborated: [t]he upshot of the IHO's determination is that the short-term objectives were generic because they were not modified to reflect the change in the grade level on P.H.'s annual goals. By reversing only on the basis that the annual goals were not generic, the SRO failed to consider the IHO's more important finding that the short-term objectives were generic. 17 Id. at 154. 18 short-term objectives was necessarily central to the IHO's 19 decision" that the IEP was procedurally flawed. 20 In the district court's view, "the substance of the Id. The district court also found wanting the IEP's short- 21 term objectives, the "vast majority" of which lack "measurement 22 statement[s]" by which evaluators could track P.H.'s progress. 23 Id. at 156. 24 was satisfied with the short-term objectives, because "the SRO 25 failed to address the measurability of P.H.'s academic goals, 26 which formed the entire basis for the IHO's conclusion." 27 (emphasis in original). 28 "'a review of P.H.'s non-academic goals,' and 'goals and short- The court again declined to defer to the SRO, who Id. The SRO based his conclusion instead on 63 1 term objectives relating to P.H.'s social/emotional needs.'" Id. 2 at 156-57 (brackets omitted; emphases in original). 3 court concluded that the IHO's decision, which found the short- 4 term objectives to be deficient, rather than the SRO's, merited 5 deference because it was "reasoned and supported by the record." 6 Id. at 157 (quoting Gagliardo, 489 F.3d at 114). 7 The district The district court also adopted the IHO's conclusion -- 8 based on a specific factual finding -- that the non-academic 9 goals contained in the IEP were too advanced for P.H., declining 10 to defer to the SRO's "conclusory" reversal of the IHO on this 11 point. 12 "'comprehensively addressed [P.H.'s] needs in'" the relevant 13 areas. 14 Id. at 158. The SRO had stated only that the goals Id. (quoting IHO report). The district court rejected the plaintiffs' challenges 15 to the adequacy of the IEP's evaluative schedule for academic and 16 non-academic goals, and the evaluative criteria for P.H.'s short- 17 term objectives, concluding that the SRO's findings on these 18 points were "entitled to deference." 19 Id. at 156. The DOE argues that the IEP team "formulated 20 appropriate annual goals and objectives" for P.H., "along with 21 detailed short-term goals," and, further, that even if the goals 22 were not appropriate, they "could be reviewed and, if needed, 23 adjusted throughout the approaching school year." 24 Appellant's Br. 47. M.H. The DOE also points out that the IEP 64 1 contained thirteen pages of annual goals and short term 2 objectives, contending that they were "reflective of [P.H.'s] 3 needs and thus would have provided appropriate benchmarks for 4 [him] in the 2007-2008 school year." 5 Id. at 49. The parents respond that the IEP's goals for P.H. were 6 not individualized because they were crafted with a rising first- 7 grader in mind; they were not changed when Ms. Jordan learned 8 that P.H. was in fact entering kindergarten. 9 14-15. M.H. Appellee's Br. The plaintiffs further argue that the district court was 10 not required to defer to the SRO because the SRO's conclusions 11 were "unsupported by the record as a whole and incorrect as a 12 matter of law . . . ." 13 omitted). 14 Id. at 39 (internal quotation marks The district court's decision to disagree with the SRO 15 was proper. This was not a situation in which the court credited 16 the conclusions that were most consistent with its own subjective 17 analysis. 18 The Sch. Dist of N.Y.C., 716 F. Supp. 2d 270, 289 (S.D.N.Y. 2010) 19 ("In light of the uncontradicted testimony, . . . the SRO's 20 finding . . . is entitled to deference."); Connor ex rel. I.C. v. 21 N.Y.C. Dep't of Educ., No. 08-cv-7710-LBS, 2009 WL 3335760, at 22 *4, 2009 U.S. Dist. LEXIS 98605, at *14 (S.D.N.Y. Oct. 13, 2009) 23 (deferring to the SRO on a procedural issue where "nothing in the 24 record suggests any reason to diverge" from the SRO's See, e.g., W.T. & K.T. ex rel. J.T. v. Bd. of Educ. of 65 1 determination). 2 conclusions were grounded in a "thorough and careful" analysis. 3 Walczak, 142 F.3d at 129. 4 found that they were not supported by a preponderance of the 5 objective evidence. 6 Rather, the court assessed whether the SRO's The court rejected them only when it With respect to the IEP goals not being individualized, 7 the IHO noted that CSE coordinator Giselle Jordan herself 8 testified that she wrote the goals with a rising first-grader in 9 mind and did not alter them once she learned P.H. should be 10 starting kindergarten. 11 that P.H.'s Bracken Score (one of many evaluative tools) was 12 within the average range for his age, and therefore drew the 13 conclusion that any goals listed as appropriate to kindergartners 14 must have been appropriate for P.H. 15 On the other hand, the SRO noted only The district court thought the SRO's conclusion to be 16 poorly reasoned. We agree. There does not appear to be any 17 doubt that kindergarten level goals were appropriate for P.H. 18 be sure, when Ms. Jordan learned at the CSE meeting that P.H. was 19 entering kindergarten, she crossed out "1st grade" and changed it 20 to "kindergarten" for all of P.H.'s annual academic goals. 21 question is whether, because Jordan did not also alter the short- 22 term objectives to make them appropriate for kindergarten instead 23 of first grade, the IEP's short-term academic objectives were 24 inappropriate. See, e.g., M.H. J.A. 1214 (annual goals and 66 To The 1 short-term objectives). 2 fact that it was the linchpin of the IHO's conclusion that the 3 academic goals in the IEP were insufficiently individualized to 4 P.H. and did not accurately reflect his special education needs. 5 M.H., 712 F. Supp. 2d at 154. 6 The SRO ignored this issue despite the The IHO's conclusions were further supported by 7 testimony from Nicklas that the short-term goals for P.H. were 8 unattainable. 9 reading one word at a time, and that he would thus be unable to She pointed out, for example, that P.H. was 10 meet short-term objectives such as "distinguish[ing] between fact 11 and fiction," 12 effect of a certain action." 13 IHO's thorough analysis on this point and the SRO's failure to 14 consider it, the district court did not err. 15 "predict[ing] outcomes," and "identify[ing] the M.H. J.A. 511. In light of the With regard to the measurability of the IEP's goals, 16 the SRO focused on non-academic ones including the "student's 17 needs in [occupational therapy, physical therapy], speech- 18 language therapy, social interaction, play, communication and 19 socialization, and adaptive physical education," concluding that 20 although the annual goals lacked specificity, the short-term 21 goals were sufficiently "detailed and measurable," and that they 22 "cured any deficiencies in the annual goals." 23 SRO cited several of the short-term objectives in the IEP, which 24 contained either phrases like "teacher observation" to indicate 67 Id. at 1374. The 1 how the observer is to measure P.H.'s progress. 2 id. at 1211-13 (pages from the IEP). 3 noted, however, the SRO ignored the fact that the "vast majority 4 of objectives in the IEP . . . do not contain any such 5 measurement statement." 6 156-57 (stating that "only 17 of the IEP's 85 short-term 7 objectives contain an evaluation procedure, and, most 8 importantly, not one of the academic short-term objectives 9 mentions an evaluation procedure.") (emphasis added). 10 Id.; see also As the district court M.H., 712 F. Supp. 2d at 156; id. at New York State regulations require an IEP to specify 11 "evaluative criteria, evaluation procedures and schedules to be 12 used to measure progress toward meeting the annual goal." 13 tit. 8, § 200.4(d)(2)(iii)(b). 14 also be "measurable." 15 NYCRR Any short-term objective must Id. at § 200.4(d)(2)(c)(iv). We agree with the district court's decision not to 16 defer to the SRO's determination that the IEP provided sufficient 17 evaluation procedures for the IEP's goals and objectives. 18 SRO failed to consider P.H.'s short-term academic objectives at 19 all beyond a conclusory view that all of the "79 short-term 20 objectives" addressed the "student's needs" and that the 21 "majority of the . . . short-term objectives were both detailed 22 and measurable," M.H. J.A. 1374 (emphasis added). 23 provided a detailed analysis of the "short-term objectives 24 relating to the student's social/emotional needs." 68 The He only Id. And 1 although the SRO stated that many of the short-term non-academic 2 goals "could be observed and measured," in reviewing the more 3 than eighty short-term objectives referred to in the IEP, only 4 fifteen expressly referred to "teacher observation" as an 5 evaluation procedure. 6 had any express evaluation procedure. 7 None of the academic short-term objectives We also agree with the district court's decision to 8 rely on the IHO's conclusion that the non-academic goals were not 9 suited to P.H.'s needs and that some were too advanced for P.H. 10 That decision is supported by the evidence in the record, 11 including the testimony of Dr. Nicklas and M.H. 12 other hand, did no more than state summarily that the goals 13 "comprehensively addressed the student's needs in th[e] areas." 14 M.H. J.A. 1374. 15 that he deemed more compelling. 16 court might have properly deferred to the SRO's analysis of the 17 IEP's goals and objectives. 18 does not evince thorough and well-reasoned analysis that would 19 require deference. 20 The SRO, on the The SRO failed to point to contrary evidence Had he done so, the district But the SRO's conclusory statement We therefore affirm the district court's conclusion 21 that the IEP did not comply with the procedural requirements of 22 the IDEA and that P.H. was denied a FAPE as a result. 69 1 C. Substantive Adequacy 2 1. Methodology Evidence 3 The IEP's substantive compliance with the IDEA depends 4 on a threshold issue upon which the IHO and the SRO disagreed: 5 whether the reviewing officers could consider the evidence 6 related to the various methodologies for teaching autistic 7 children, including ABA and TEACCH. 8 initiates the impartial review process by filing a notice 9 including "complaint[s] . . . with respect to any matter relating A parent of a disabled child 10 to the identification, evaluation, or educational placement of 11 the child, or the provision of a [FAPE] to such child." 12 U.S.C. § 1415(b)(6)(A). 13 requesting the due process hearing shall not be allowed to raise 14 issues at the due process hearing that were not raised in the 15 notice . . . unless the other party agrees otherwise." 16 § 1415(f)(3)(B). 17 20 The IDEA provides that "[t]he party 20 U.S.C. The plaintiffs do not dispute that they did not raise 18 the issue of teaching methodologies in the impartial hearing 19 request. 20 her opinion. 21 to the IHO related to the question of whether ABA or TEACCH was 22 better for P.H. 23 considered the issue, because the plaintiffs had waived it by 24 omitting the discussion from their hearing request. However, the IHO did consider the question in issuing And much of the testimony presented by both parties The SRO determined that the IHO should not have 70 M.H. J.A. 1 1372-73 ("[T]he impartial hearing officer exceeded her 2 jurisdiction in making a determination which was not properly 3 before her."). 4 The district court disagreed. M.H., 712 F. Supp. 2d at 5 151-52. 6 was the DOE that introduced the issue of methodology -- first in 7 its opening statement, and then in the questioning of its first 8 witness, Ms. Jordan. 9 that the plaintiffs could not "fairly be barred from rebutting 10 [the DOE's] testimony with evidence of the appropriateness of 11 [the] methodologies, and the DOE [could not] genuinely claim that 12 it was prejudiced by the IHO's consideration of such evidence." 13 Id. at 150. 14 The court noted that at the hearing before the IHO, it Id. at 149. The court therefore decided The DOE appeals from the district court's conclusion on 15 this point, arguing that the concept of "opening the door," upon 16 which the district court relied, is inapplicable in the context 17 of IDEA due process hearings. 18 "should not be confused with a jurisdictional limitation, or with 19 a statutory requirement for the consent of the opposing party." 20 M.H. Appellant's Br. 57. 21 more than "[s]ubmit[] evidence that [was] relevant to an issue 22 properly before the hearing officer," viz., the appropriateness 23 of the IEP's recommended placement. 24 that it never agreed to submit the "different issue" of whether It submits that the concept The DOE further contends that it did no 71 Id. at 56. The DOE contends 1 only the ABA methodology was appropriate for P.H. to the IHO. 2 Id. (emphasis in original). 3 been able to elicit evidence regarding the teaching methodologies 4 because such evidence was relevant to demonstrating that the 5 6:1:1 placement provided to P.H. was appropriate to his needs, 6 but that the parents should not have been able to submit their 7 own evidence that only ABA instruction would be effective for 8 P.H. 9 The DOE suggests that it should have We agree with the district court and the parents that 10 it would be unfair to permit the DOE to argue that its 11 recommended placement for P.H. was appropriate because it offered 12 "various teaching methods," and that the parents' placement was 13 inappropriate because it "offers [only] one type of intervention, 14 . . . which is [ABA]," M.H. J.A. 27-29, but then to bar the 15 parents from contending that the schooling offered in the IEP was 16 inappropriate for P.H. precisely because it offered "various" 17 methodologies, most of which would not work for their son. 18 In other words, it does not follow from the fact that 19 the DOE bears the burden of demonstrating that the IEP provides a 20 FAPE that it should be permitted to argue issues outside the 21 scope of the due process complaint without "opening the door" for 22 the plaintiffs. 23 challenged the substantive sufficiency of the IEP offered to 24 their son. The parents, in their complaint letter, The DOE chose to respond by arguing that the IEP's 72 1 placement was better in part because it utilized multiple 2 methodologies. 3 the parents from contesting the appropriateness of the 4 methodologies offered in the IEP's recommended program. In these circumstances, the statute does not bar 5 2. 6 The SRO and IHO disagreed on the substantive The Substance of the IEP 7 sufficiency of the IEP. The IHO concluded that the IEP failed to 8 provide a FAPE because the IEP recommended very little ABA 9 therapy, which had been shown by testimony at the hearing to be 10 "imperative. . . to prevent [P.H.'s] regression." 11 1357. 12 reversed the IHO, concluding that the 6:1:1 program "was 13 appropriate to meet the needs of [P.H.]." 14 the SRO compared the IEP-recommended program only to general 15 education; he did not explain why it was more appropriate than 16 either 12:1:1 instruction, which the DOE offers, or 1:1 17 instruction. 18 M.H. J.A. After excluding the parents' methodology evidence, the SRO M.H. J.A. 1375. But The district court again declined to defer to the SRO. 19 The court observed that although the SRO excluded the parents' 20 methodology evidence, which, in the district court's words, 21 "tended to show that P.H. required a methodology employing a 1:1 22 student-teacher ratio," M.H., 712 F. Supp. 2d at 161, the SRO had 23 considered "the DOE's methodology evidence tending to show that 24 the methodologies available within a 6:1:1 program were 73 1 affirmatively appropriate for P.H.," id. 2 that the IHO had considered "not only the same evidence that the 3 SRO considered but also the substantial amount of methodology 4 evidence introduced by Plaintiffs." 5 the IHO, not the SRO, "find[ing] no reason to disagree with her 6 decision, particularly because she considered all the evidence 7 presented to her and because the weights she assigned to 8 conflicting evidence were undoubtedly influenced by her 9 educational expertise." Id. The court then stated The court deferred to Id. (citing Grim, 346 F.3d at 382). The 10 court concluded by opining that "[t]he SRO's decision would have 11 merited such deference had it included consideration of all the 12 evidence in the record." 13 Id. The DOE contends that "even if the methodology 14 allegation had been properly presented in the complaint letter, 15 the IHO should not have considered it," because "decisions 16 regarding the best methodology to utilize in teaching special 17 education students . . . should be made by teachers, not by the 18 courts." 19 207, 210). 20 courts are limited to deciding the issue of "whether the 21 placement provided the student an appropriate FAPE, not whether 22 the methodology offered in the school the parents preferred was 23 superior to that offered in the public school." M.H. Appellant's Br. 59 (citing Rowley, 458 U.S. at According to the DOE, administrative officers and 74 Id. at 59-60. 1 The parents reply that the DOE mistakenly "attempts to 2 separate the method of instruction from the appropriateness of 3 that instruction." 4 IDEA "expressly permits courts to consider the 'content, 5 methodology, [and] delivery of instruction['] to determine 6 whether a FAPE has been offered to a child with special needs," 7 id. at 38 (quoting 34 C.F.R. § 300.39(a)(1), although the quoted 8 text is in § 300.39(b)(3), as part of the definition of 9 "specially designed instruction") (alterations in original). M.H. Appellee's Br. 35. They argue that the The 10 parents also contend that the 6:1:1 program recommended in the 11 IEP was not appropriate for P.H. both because even though it was 12 within a mainstream school building, it actually provided fewer 13 opportunities to interact with mainstream peers than BAC (even as 14 an institution specializing in educating children with autism), 15 and because the testimony and reports by all of P.H.'s treating 16 doctors and by his SEIT indicated that he could not learn 17 successfully in a 6:1:1 environment. 18 We agree with the district court that the SRO's 19 decision, which took only the DOE's evidence into account, does 20 not warrant deference in this regard. 21 the substantive adequacy of the IEP, while brief, clearly 22 explained that the IHO concluded that the key failing of the IEP 23 was its failure to account for Dr. Salsberg's report -- dated two 24 months before the relevant hearing of the CSE -- that P.H. 75 The IHO's discussion of 1 required intensive 1:1 instruction. 2 generally defer to the state administrative hearing officers 3 concerning matters of methodology, the SRO's failure to consider 4 any of the evidence regarding the ABA methodology and its 5 propriety for P.H. is more than an error in the analysis of 6 proper educational methodology. 7 highly significant evidence in the record. 8 type of determination to which courts need not defer, 9 particularly when the evidence has been carefully considered and 10 D. It is a failure to consider This is precisely the found persuasive by an IHO. 11 Although courts should 12 Appropriateness of the Unilateral Placement Once it is determined that the program offered by an 13 IEP will not "enable the child to receive educational benefits," 14 Cerra, 427 F.3d at 192 (quotation marks omitted), the burden 15 shifts to the parents to demonstrate that the school in which 16 they have chosen to enroll their child is appropriate. 17 Gagliardo, 489 F.3d at 112. 18 need not "meet the IDEA definition of a [FAPE]," Frank G., 459 19 F.3d at 364, as would a program provided by the public school 20 system, it must be "reasonably calculated to enable the child to 21 receive educational benefits," id. (quotation marks omitted). 22 However, "even where there is evidence of success [in the private 23 placement], courts should not disturb a state's denial of IDEA 24 reimbursement where . . . the chief benefits of the chosen school Although their unilateral placement 76 1 are the kind of . . . advantages . . . that might be preferred by 2 parents of any child, disabled or not." 3 115. 4 appropriate if it provides education instruction specifically 5 designed to meet the unique needs of a handicapped child." 6 (emphasis in original; quotation marks omitted). 7 Gagliardo, 489 F.3d at Rather, the "unilateral private placement is only Id. In this case, the SRO did not reach the question of the 8 appropriateness of BAC as a private placement for P.H. 9 1376. M.H. J.A. The district court therefore deferred to the IHO, whose 10 conclusions the court found to be "well reasoned and supported by 11 the evidence." 12 satisfied that the parents had shown that BAC met P.H.'s needs. 13 She relied on, inter alia, the testimony of BAC director Nicklas 14 and on the data provided by BAC documenting P.H.'s progress. 15 confirming the IHO's opinion, the district court also rejected 16 the DOE's three reasons for deciding that BAC "should be 17 considered inappropriate for P.H." 18 M.H., 712 F. Supp. 2d at 165. The IHO was In M.H., 712 F. Supp. 2d at 164. First, the DOE argued that the BAC records showed that 19 "BAC was not actually addressing P.H.'s deficits," specifically 20 his handwriting and gross-motor-skills lessons. 21 district court noted that Nicklas's and Jordan's testimony 22 contradicted each other on this point, and that it was for the 23 IHO to weigh the credibility of each expert's testimony. 77 Id. The Id. 1 Second, the DOE argued that BAC was too restrictive 2 because P.H. was not educated with mainstream peers. Id. at 165 3 (citing, inter alia, P. ex rel. Mr. & Mrs. P. v. Newington Bd. of 4 Educ. (Newington), 546 F.3d 111, 120 (2d Cir. 2008)). 5 Newington test, when evaluating whether a student's placement is 6 the least restrictive environment possible, as required by the 7 IDEA, "a court should consider, first, whether education in the 8 regular classroom, with the use of supplemental aids and 9 services, can be achieved satisfactorily . . . , and, if not, Under the 10 then whether the school has mainstreamed the child to the maximum 11 extent appropriate." 12 omitted). 13 P.H. "would not have benefi[t]ted from placement in a regular 14 classroom." 15 "well reasoned" conclusion that "discrete-trial ABA was the 16 appropriate methodology for educating P.H.," the court deferred 17 to the IHO's finding that BAC was not too restrictive for P.H. 18 Id. 19 Newington, 546 F.3d at 120 (quotation marks The district court noted that the parties agreed that M.H., 712 F. Supp. 2d at 165. Citing the IHO's Third, the district court rejected the DOE's argument 20 that BAC was inappropriate because the school did not provide 21 related services on-site, relying upon the IHO's conclusion to 22 that effect and upon the fact that "parents are entitled to more 23 flexibility in their choice of placement than [is] the DOE." 78 Id. 1 at 166. The court also noted that the IHO had considered and 2 rejected precisely the same argument. 3 Id. The DOE contends again on appeal that the parents 4 failed to establish that BAC was appropriate. Specifically, it 5 reasserts that BAC did not provide related services to P.H. 6 during the school day, and that the IHO ignored this factor in 7 finding the school appropriate. 8 DOE argues that in order to be appropriate, a private placement 9 must provide "an educational program and the necessary support M.H. Appellant's Br. 64-65. The 10 services to appropriately meet [P.H.'s] special education needs." 11 Id. at 65 (citing, inter alia, Frank G., 459 F.3d at 364-65). 12 The DOE further contends that the BAC program was more 13 restrictive than necessary, and that P.H. would have had more 14 opportunities to interact with mainstream peers at P.S. 94. 15 at 67-68. 16 Id. The parents concede that BAC does not offer related 17 services during the school day, but argue that the placement 18 nevertheless was appropriate because BAC met P.H.'s educational 19 needs and gave him more access to mainstream peers than P.S. 94 20 would have. 21 services "at a separate location," even under the IEP's 22 recommended program, rendering BAC's alleged shortcoming 23 immaterial. 24 services, the parents contend that BAC offered all of the Further, they say, P.H. would have received related M.H. Appellee's Br. 49-52. 79 With regard to related 1 services P.H. needed to receive educational benefits, and his 2 related services could be "provided at any time of day." 3 51. 4 opinion on this issue warranted deference, and that the DOE's 5 argument to the contrary asks the court to "[a]ssign[] new 6 weight[] to the evidence" that the IHO already reviewed, which is 7 "precisely what a court avoids when it conducts a modified de 8 novo review . . . ." 9 omitted). 10 Id. at The plaintiffs also argue that in any event, the IHO's Id. at 54 (internal quotation marks In Gagliardo, we concluded that the parents' unilateral 11 placement was inappropriate because the chosen school "did not 12 provide the special education services specifically needed" by 13 the student -- that is, the "therapeutic setting" the student 14 required to "reasonably assure that he would receive educational 15 benefits as required by Rowley." 16 114. 17 some extent enhance P.H.'s learning ability, there is nothing in 18 the record to suggest that it is necessary that they be provided 19 during the school day in order for P.H. to receive appropriate 20 benefit from them. 21 Gagliardo, 489 F.3d at 113, Here, it appears that although the related services do to The DOE also cites Green v. N.Y.C. Dep't of Educ., No. 22 07 Civ. 1259 (PKC), 2008 WL 919609, 2008 U.S. Dist. LEXIS 32118 23 (S.D.N.Y. Mar. 31, 2008), in which the district court affirmed 24 the IHO's and SRO's conclusion that the unilateral placement was 80 1 not appropriate. 2 In reaching that conclusion, the Green court noted that "[i]t is 3 appropriate for the hearing officers and the Court" to take into 4 consideration the fact that the parents obtained necessary 5 services not offered through the selected school from an outside 6 agency. 7 indeed be an appropriate consideration, but it is not necessarily 8 dispositive. 9 not require a finding that BAC was inappropriate. 10 Id. at *8, 2008 U.S. Dist. LEXIS 32118, at *23. Id. at *7, 2008 U.S. Dist. LEXIS 32118 at *19. This may Here, the absence of related services at BAC does With regard to mainstreaming opportunities for P.H., 11 the record suggests that they were not abundant at the 12 alternative placement, P.S. 94. 13 had more exposure to and interaction with mainstream peers at 14 BAC. 15 be greater at P.S. 94, because the special education placement 16 there shares a building with a mainstream public school. 17 However, as we have noted, according to P.H.'s father, M.H., the 18 P.S. 94 teacher, Oliva Cebrian, told him that the mainstream 19 children who share the P.S. 15 building with P.S. 94 students are 20 "not particularly welcoming to the special ed[ucation] kids." 21 M.H. J.A. 729. 22 separate entrance to the school, eat in a separate cafeteria, and 23 do not share academic classes. 24 participated in a special education-only class at BAC, the Indeed, P.H. likely would have The DOE argues that opportunities for mainstreaming would As a result, the special education children use a Id. 81 By contrast, although P.H. 1 facility is also located within a mainstream school, and P.H. 2 participated in two non-academic classes with mainstream 3 children. 4 share a school entrance, hallways, and playtime with non-disabled 5 peers. 6 Unlike the situation at P.S. 94, the BAC students also In light of this unrebutted evidence, the district 7 court properly agreed with the IHO's conclusion that BAC was an 8 appropriate unilateral placement for P.H. 9 E. Equitable Considerations 10 Finally, both administrative review officers and courts 11 are required to evaluate the equities in considering a tuition 12 reimbursement claim. 13 ex rel. Carter, 510 U.S. 7, 12 (1993). 14 not reach the issue, although the IHO had done so. 15 "that equitable considerations support tuition reimbursement." 16 Id. 1357. The IHO noted that "the parents have cooperated with 17 the CSE. They provided private evaluations, participated in the 18 IEP meeting, visited the proposed placement and provided timely 19 notice of their intent to place the student in a private school." 20 Id. 21 evidence in the record" that supports the IHO's conclusion, M.H., 22 712 F. Supp. 2d at 167, including that "the DOE was less than 23 forthcoming about the nature of P.H.'s recommended placement," 24 id., that the plaintiffs were not provided the opportunity to Florence County Sch. Dist. Four v. Carter The district court agreed. 82 In this case, the SRO did The IHO found It also identified "other 1 meaningfully participate in the CSE meeting, id., and that the 2 DOE subsequently "consistently stonewalled M.H.'s inquiries into 3 the appropriateness" of the school, id. at 168. 4 appear to contest the district court's or IHO's evaluation of 5 this evidence on appeal.12 6 analysis on this point. 7 IV. 8 9 The DOE does not We agree with the district court's Analysis of Claims in M.S. The plaintiffs in M.S. contest both the procedural and the substantive adequacy of their son's IEP. Central to their 10 argument is the assertion that the magistrate judge overstated 11 the degree to which he was required to defer to the decisions of 12 the administrative hearing officers. 13 magistrate judge was too deferential to the State's adjudication 14 process, we think that application of the proper standard of 15 review requires the same outcome. 16 A. 17 18 Although we agree that the Procedural Compliance The parents asserted before the district court that the "development of the IEP was procedurally deficient [first] We take no position on whether anything short of total reimbursement for P.H.'s private tuition at BAC would have been appropriate under the Supreme Court's decision in Carter, 510 U.S. at 16 ("Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable."), had the DOE identified before the state administrative officers or the district court particular services provided by BAC that the district considered unnecessary to the provision of a FAPE (and for which reimbursement was therefore not required) or had otherwise shown that only a portion of P.H.'s tuition cost should be reimbursed. 12 83 1 because the parent waived the inclusion of a parent member in the 2 CSE under duress, and the absence of such a participant in the 3 meeting denied the plaintiffs active participation in the 4 development of the IEP." Id. (internal quotation marks omitted). 5 The district court adopted the magistrate judge's recommendation 6 that it accept the IHO's and SRO's conclusion that even if D.S.'s 7 parent waived the presence of a parent member at the CSE meeting 8 under less than ideal circumstances, the "parent still 9 participated in the development of the IEP." Because of that 10 participation, the magistrate judge concluded, any violation did 11 not "rise to a denial of [a] FAPE." Id. (internal quotation marks 12 omitted). 13 parents' waivers of the participation of a parent member under 14 similar circumstances," and recommended that the court do so in 15 this case, too. 16 that this recommendation was influenced by his understanding of 17 the deference required by Grim and this Court's other related 18 decisions. 19 20 The magistrate judge noted that "courts have upheld Id. at 45. The magistrate judge did not suggest The district court adopted this reasoning.13 The parents offer no evidence of duress other than their own testimony, id., which the IHO heard and found Because the district court adopted the more thorough reasoning of the Magistrate Judge in the Report and Recommendation, in this section we refer mainly to the R&R. But, of course, we are here reviewing the decision of the district court adopting the R&R. 13 84 1 unpersuasive on this point, id. at 44.14 2 evidence in the record to the contrary, the Court must defer to 3 the IHO and SRO's findings, which were grounded in credibility 4 determinations made by the IHO after hearing the relevant 5 testimony. 6 Without any other Second, the parents contend the DOE violated the IDEA's 7 requirement that an IEP include measurable goals that are 8 appropriate for the child's development by photocopying goals 9 from a prior IEP. The parents assert that it is impossible for 10 the CSE team to have reviewed all of the photocopied goals in 11 light of the shortness of the meeting and especially Pearl's late 12 arrival. 13 seventeen pages of goals and "discuss[] and intentionally 14 preserve[]" each one. 15 to the contrary that the photocopy was, as the IHO found, 16 "'insignificant,'" "especially given that the 'record was replete 17 with testimony as to D.S.'s very slow learning style,' which 18 would render past information, particularly information that was 19 gathered only a few months prior to the CSE, still very 20 accurate." Only 25 to 30 minutes were left for the CSE to review M.S. Appellants' Br. 49. The DOE contends M.S. Appellee's Br. at 43 (brackets omitted). 21 The IDEA requires that an IEP be "updated annually," 20 22 U.S.C. § 1414(d)(1)(A)(i)(VIII), and revised "as appropriate," 20 14 The SRO did not specifically address the issue. 85 1 U.S.C. § 1414(d)(4)(A)(ii), see also Schroll v. Bd. of Educ. 2 Champaign Cmty. Unit. Sch. Dist. #4, No. 06-2200-DGB, 2007 WL 3 2681207, at *4-*5, 2007 U.S. Dist. LEXIS 62478, at *12 (C.D. Ill. 4 Aug. 10, 2007) ("An IEP is not inappropriate simply because it 5 does not change significantly on an annual basis[, but] . . . if 6 the student made no progress under a particular IEP in a 7 particular year, . . . the propriety of an identical IEP in the 8 next year may be questionable."). 9 We agree with the magistrate judge that the 10 photocopying of the goals was "disturbing." R&R at 49. But the 11 IHO's determination that the photocopy remained sufficient for 12 purposes of arriving at D.S.'s IEP appears to have been based in 13 part on the DOE's witnesses who explained that the goals, 14 although a year old, nonetheless remained appropriate for the 15 child. 16 had been discussed at the CSE meeting, and that at least one goal 17 was revised after the CSE meeting, when it became clear that 18 "there was one goal that was either unclear or he had met." 19 J.A. 151. 20 photocopied from D.S.'s last CPSE (that is, his pre-school CSE) 21 meeting, which had taken place only a few months prior to the CSE 22 meeting. 23 that the photocopied goals were no longer appropriate for D.S., 24 we agree with the district court's deference to the IHO, who had Dr. Bowser testified that D.S.'s general academic goals M.S. Bowser also testified that some of the goals were In light of that testimony and without more evidence 86 1 the benefit of hearing and weighing witness testimony on the 2 issue. 3 The plaintiffs' contention that they were not afforded 4 the opportunity adequately to participate in the CSE meeting also 5 fails. 6 to learn effectively in a 6:1:1 classroom setting. They provided 7 the CSE with additional private evaluations of D.S. As the IHO 8 rightly observed, these reports were noted on the IEP checklist, 9 which indicated that they had been reviewed. At the meeting, D.S.'s parents discussed D.S.'s ability But even assuming 10 to the contrary that the school district failed to review these 11 outside reports, we disagree with the appellants' contention that 12 D.S.'s IEP therefore failed to reflect his then-current needs. 13 The record evidence demonstrates that D.S.'s IEP incorporated 14 performance reports that were more recent than those submitted by 15 the appellants at the CSE meeting. 16 Finally, the appellants suggest that the school 17 district predetermined D.S.'s placement in a 6:1:1 classroom. We 18 disagree. 19 392 F.3d 840 (6th Cir. 2004), cert. denied, 546 U.S. 936 (2005), 20 the Sixth Circuit held that the plaintiffs were denied meaningful 21 participation in the IEP process because the school district 22 "never even treated a one-on-one ABA program as a viable option." 23 Id. at 858. 24 Dist., 554 F.3d 247 (2d Cir. 2009), we expressly distinguished In Deal ex rel. Deal v. Hamilton County Bd. of Educ., In T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. 87 1 Deal. We observed that "the school district [in Deal] had 2 consistently rejected parent requests for intensive ABA and told 3 the parents that 'the powers that be' were not implementing such 4 programs." 5 the only evidence indicating that such a policy was in place was 6 Bowser's testimony that as far as she knew, only 6:1:1 programs 7 were provided by the district. 8 the evidence that troubled the court in Deal. 9 district's broad discretion to adopt programs that, in its Id. at 253 (quoting Deal, 392 F.3d at 855-56). Here, This testimony is a far cry from In light of the 10 educational judgment, are most pedagogically effective, we cannot 11 simply assume that the decision to rely heavily on a single 12 method or style of instruction is necessarily inappropriate. 13 Bowser's testimony does not tend to establish that the district 14 would not consider a 1:1 placement in an appropriate case. 15 Absent such evidence, the only issue here is whether the 16 district's proposed placement was insufficient to provide a FAPE 17 to D.S. 18 B. 19 Substantive Adequacy The plaintiffs also challenge the IEP's substantive 20 adequacy because, they argue, the IHO ignored evidence 21 demonstrating that the IEP was not individualized to meet D.S.'s 22 needs and thus failed to consider the record as a whole. 23 record as a whole, they say, showed that D.S. required ABA 1:1 24 therapy to progress. 88 The 1 As the IHO acknowledged, Dr. Bowser testified that she 2 chose the 6:1:1 program for D.S. instead of the ABA program 3 because it would provide careful supervision while addressing the 4 needs and deficiencies that were outlined in his IEP. 5 recognized that D.S. was a non-verbal child with significant 6 deficiencies, including low intellectual functioning, and 7 difficulties with social interactions. 8 team that formed D.S.'s IEP chose the 6:1:1 classroom program 9 with these deficiencies in mind. Dr. Bowser She also stated that the Alex Campbell, the special 10 education teacher in charge of the 6:1:1 class to which the IEP 11 had assigned D.S., also reviewed D.S.'s IEP and testified that 12 she had worked with students with similar deficiencies during the 13 2007-08 school year, and that those students had progressed 14 toward their IEP goals. 15 The proposed 6:1:1 classroom, moreover, provided a 16 transition program for students who had only had ABA therapy. 17 Susan Cruz, the assistant principal at P.S. 15, testified that a 18 student such as D.S. would transition to a setting with multiple 19 methodologies through a program targeted toward his specific 20 needs and experiences with ABA. 21 The IHO credited this testimony. She concluded that 22 the district had provided evidence of the "specifics as to the 23 appropriateness of [D.S.'s] recommended program and described how 24 he would have met his IEP goals and met the standard of achieving 89 1 educational benefits from the program." M.S. S.P.A. 80. 2 Further, the IHO credited Bowser's testimony that the CSE "wanted 3 [D.S.] to be in the classroom as much as possible and by having 4 the therapy within the school setting it would give the therapist 5 a chance to interact with the classroom teacher and transfer the 6 skills into the classroom setting." M.S. S.P.A. 79. 7 The magistrate judge disagreed with the IHO's 8 assessment, stating that "[t]he only people . . . who had met and 9 evaluated [D.S.] insisted that he required 1:1 ABA." R&R at 54. 10 However, the magistrate judge felt "constrained to defer to the 11 determination of the IHO and SRO," even on a question that he 12 thought called for the simple application of "typical judicial 13 experience," namely, whether the "IHO and SRO properly grappled 14 with the evidence before them." 15 Id. at 55. We need not consider the magistrate judge's expressed 16 views in this regard. 17 assessment of the credibility of the witnesses testifying before 18 him, and his own understanding of educational methodology. 19 Grim, 346 F.3d at 383. 20 basis. 21 The IHO's determination was based on his See It was entitled to deference on that The IHO was presented with conflicting evidence on the 22 question of methodology: Some witnesses testified that D.S. 23 would thrive in a 6:1:1 program utilizing methodologies other 24 than ABA. Others, including DOE evaluator Marion Pearl, 90 1 expressed the view that D.S. required 1:1 ABA therapy on a full- 2 time basis. 3 the witnesses who had not met D.S. because, in the IHO's view, 4 the witnesses who testified for D.S. did not approach the 5 possibility of his enrollment in a non-ABA program with an open 6 mind. 7 credibility assessment, it did not have further evidence on the 8 basis of which to challenge this determination. 9 conclusion is further buttressed by the fact that the IHO's The IHO appears to have given greater credence to While the court may have had doubts about the IHO's And this 10 determination concerned the substantive adequacy of the IEP, a 11 question requiring expertise on education of autistic children 12 and to which courts therefore should usually defer to 13 administrative decisionmakers. 14 See Rowley, 458 U.S. at 208. We would be remiss if we did not note that we deeply 15 respect and sympathize with M.S. and L.S.'s efforts on behalf of 16 their son and their desire to obtain the best possible treatment 17 for him under trying circumstances. 18 established by a preponderance of the evidence that the IEP 19 offered to D.S. by the State was inappropriate -- that is, that 20 D.S. was denied a FAPE. 21 But it has not been Because we conclude that D.S.'s IEP was procedurally 22 and substantively adequate, we need not consider whether his 23 private placement was appropriate. 91 1 2 CONCLUSION For the foregoing reasons each of the judgments of the 3 district courts in these cases consolidated for purposes of 4 appeal is affirmed. 92 1 APPENDIX 2 Glossary of Acronyms 3 ABA Applied Behavior Analysis 4 BAC Brooklyn Autism Center 5 6 CPSE Department of Education's Committee on Preschool Special Education 7 CSE Local Committee on Special Education 8 DOE New York City Department of Education 9 D.S. Son of plaintiffs M.S. and L.S. 10 11 12 E.I. New York's Early Intervention program E.K. Plaintiff, mother of P.H. 13 FAPE Free Appropriate Public Education 14 FBA Functional Behavioral Assessment 15 16 IDEA Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. 17 IEP Individualized Education Program 18 IHO District's Impartial Hearing Officer 19 20 21 L.S. Plaintiff, mother of D.S. M.H. Plaintiff, father of P.H. 22 M.H. J.A. M.H. Joint Appendix 23 M.S. Plaintiff, father of D.S. 24 M.S. J.A. M.S. Joint Appendix 25 M.S. S.P.A. M.S. Special Appendix 26 NYCRR N.Y. Comp. Codes R. & Regs. 1 1 2 PDD-NOS Pervasive Developmental Disorder Not Otherwise Specified 3 PECS Picture Exchange Communication System 4 5 6 7 P.H. Son of plaintiffs M.H. and E.K. R&R Report and Recommendation of the magistrate judge in D.S. 8 SEIT Special Education Itinerant Teacher 9 SRO State Review Officer TEACCH Treatment and Education of Autistic and Related Communication-Handicapped Children, a method for teaching people with autism. 10 11 12 2