M.W. v. New York City Dep't of Educ., No. 12-2720 (2d Cir. 2013)
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Plaintiffs filed a due-process complaint against the DOE seeking tuition reimbursement after plaintiffs enrolled their autistic child in a private school because the DOE failed to provide the child with a free and appropriate public education under the Individuals with Disabilities Education Improvement Act (IDEA), 20 U.S.C. 1400 et seq. The court affirmed the state review officer's determination that the hearing record did not support the impartial hearing officer's determination that the lack of a functional behavior assessment (FBA) rose to the level of denying the child a free and appropriate public education (FAPE) where the individualized education program (IEP) addressed behavioral needs. Further, the IEP's failure to include parental counseling did not deny the child a FAPE; the SRO did not rely upon impermissible retrospection and the court deferred to her analysis; and the court found plaintiffs' remaining arguments to be without merit. Accordingly, the court affirmed the grant of summary judgment in favor of defendants.
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12-2720-cv M.W. v. N.Y.C. Dep t of Educ. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: March 13, 2013 Decided: July 29, 2013) Docket No. 12-2720-cv M.W., BY HIS PARENTS, S.W. AND E.W., Plaintiffs-Appellants, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellee. Before: WALKER, WESLEY, DRONEY, Circuit Judges. Appeal from the order of the United States District Court for the Eastern District of New York (Weinstein, J.), entered on June 15, 2012, granting summary judgment for Defendant-Appellee New York City Department of Education and denying tuition reimbursement for Plaintiffs-Appellants after their unilateral placement of their child into a private school. AFFIRMED Page 1 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 GARY S. MAYERSON (Tracey Spencer Walsh, Maria C. McGinley, on the brief), Mayerson & Associates, New York, NY, for PlaintiffsAppellants. SUZANNE K. COLT, (Pamela Seider Dolgow, John Buhta, Gail Eckstein, G. Christopher Harris, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York City Law Department, New York, NY, for DefendantAppellee. WESLEY, Circuit Judge: S.W. ( Dad ) and E.W. ( Mom ) enrolled M.W., their 16 autistic child, in a private school after concluding that 17 the New York City Department of Education s ( DOE ) 18 individualized education program failed to provide him with 19 a free and appropriate public education as required by the 20 Individuals with Disabilities Education Improvement Act 21 ( IDEA ), 20 U.S.C. §§ 1400 et seq. 22 Parents filed a due-process complaint against the DOE 23 seeking tuition reimbursement. 24 an impartial hearing officer granted them that relief. 25 DOE appealed to a state review officer, who reversed that 26 decision. 27 States District Court for the Eastern District of New York 28 (Weinstein, J.), which affirmed the order denying tuition Subsequently, the After twelve hearing days, The The Parents then filed a civil action in United Page 2 of 37 1 reimbursement. The Parents appeal principally contending 2 that the individualized education program s integrated co- 3 teaching services violated the IDEA s least restrictive 4 environment mandate by placing their child in a classroom 5 with as many as twelve other students who also had 6 individualized education programs. Background 7 8 9 We AFFIRM. I. The Legal Framework The IDEA requires New York state to provide disabled 10 children with a free and appropriate public education 11 ( FAPE ). 12 174-75 (2d Cir. 2012) (citation omitted). 13 DOE, through a Committee on Special Education ( CSE ), must 14 produce, in writing, an individualized education program 15 ( IEP ), see 20 U.S.C. § 1414(d), that describes the 16 specially designed instruction and services that will enable 17 the child to meet stated educational objectives and is 18 reasonably calculated to give educational benefits to the 19 child. 20 citation omitted). 21 district breached these IDEA duties by failing to provide 22 their disabled child a FAPE, the parent may unilaterally R.E. v. N.Y. City Dep t of Educ., 694 F.3d 167, Accordingly, the R.E., 694 F.3d at 175 (internal quotation marks and Should a parent believe that the school Page 3 of 37 1 place their child in a private school at their own financial 2 risk and seek tuition reimbursement. 3 Sch. Dist. Four v. Carter, 510 U.S. 7, 9-10, 16 (1993). See Florence Cnty. 4 To begin the tuition-reimbursement process, a parent 5 must first file a due-process complaint which triggers an 6 administrative-review process that begins with a hearing in 7 front of an impartial hearing officer ( IHO ). 8 U.S.C. § 1415(b)(6), (f); N.Y. Educ. L. § 4404(1). 9 three-pronged Burlington/Carter test, as construed by New 10 York Education Law § 4404(1)(c), governs that hearing: (1) 11 the DOE must establish that the student s IEP actually 12 provided a FAPE; should the DOE fail to meet that burden, 13 the parents are entitled to reimbursement1 if (2) they 1 See 20 The The Parents invite us to expressly hold that the DOE carries their New York Education Law § 4404(1)(c) burden all the way into federal court, which would require us to decide whether the IDEA preempts that law. We do not need to address that argument [b]ecause the State Review Officer[] in the case[] at bar concluded that the IEP[ was] 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 plaintiffs . . . , which party bore the burden of persuasion in the state review scheme is only relevant if the evidence was in equipose. M.H. v. NYC Dep t of Educ., 685 F.3d 217, 225 n.3 (2d Cir. 2012). Here, the evidence is not in equipose. Moreover, it is incumbent upon the Parents to bring to the Court s attention any procedural or substantive flaws and explain why they allegedly warrant reversal. W.T. & K.T. ex rel. J.T. v. Bd. of Educ. of Sch. Dist. of N.Y., 716 F. Supp. 2d 270, 287 (S.D.N.Y. 2010). Page 4 of 37 1 establish that their unilateral placement was appropriate 2 and (3) the equities favor them. 3 85 (citing Carter, 510 U.S. at 7; Sch. Comm. of Town of 4 Burlington v. Dep t of Educ., 471 U.S. 359 (1985)). 5 review officer ( SRO ) evaluates appeals from an IHO s 6 decision, see N.Y. Educ. Law § 4404(2), and either party may 7 seek review of an SRO decision by bringing a civil action in 8 federal court, see 20 U.S.C. § 1415(i)(2)(A). 9 II. Statement of Facts See R.E., 694 F.3d at 184- A state 10 A. M.W. 11 M.W. is an autistic boy with Pervasive Developmental 12 Disorder, Attention Deficit Hyperactivity Disorder, certain 13 speech and language disorders, and fine and gross motor 14 deficits. 15 he is bright and can learn. 16 disorders, however, present behavioral and social-emotional 17 problems that have resulted in academic under-performance 18 and have required speech, occupational, and physical 19 therapies. 20 during the school day from a paraprofessional, who helps him 21 stay focused when his attention strays and calm in the event 22 of a behavioral crisis. Despite these setbacks, M.W. has an average IQ; His autism and developmental M.W. also requires direct, hands-on supervision Page 5 of 37 1 After the Parents rejected the IEP for the 2009-2010 2 school year, M.W. attended Luria, a Montessori school, where 3 he had the support of his full-time paraprofessional in a 4 classroom designed for typically developing students. 5 January 30, 2010, Mom sent an email to Luria indicating a 6 desire to re-enroll M.W. for the 2010-2011 school year 7 before the CSE developed the contested IEP subject to this 8 appeal. 9 Luria which included a tuition contract and down payment to 10 11 On Shortly thereafter, Mom submitted an application to hold M.W. s spot. Luria teachers do not use formal assessments to track 12 progress and rely on a lot [of] note-taking and 13 observation to track the child s progress. 14 Though M.W. progressed socially during the 2009-2010 school 15 year, he continued to have a lot of behavioral issues that 16 [we]re getting in the way of his progress through the 2010- 17 2011 school year. 18 disrupted the class, his paraprofessional removed him from 19 the classroom to work with him outside, sometimes on the 20 floor.2 Id. at 921. See Tr. 937. When these behavioral issues Id. at 945-50. 2 The record does not clearly set out the amount of time M.W. spent outside the classroom during both the 2009-2010 school year and the 2010-2011 school year. For the 2009-2010 school Page 6 of 37 1 2 B. M.W. s Individualized Education Program On June 10, 2010, the CSE convened to develop M.W. s 3 2010-2011 IEP. 4 CSE: (1) Mom; (2) Sara Malasky, M.W. s general education 5 teacher, who participated via telephone; (3) Chanie Graus, a 6 school psychologist who acted as a school-district 7 representative; (4) a special education teacher; and (5) a 8 parent representative. 9 IEP was for his second-grade year, 2010-2011. 10 The following individuals constituted the M.W. was seven years old, and the The IEP described M.W. as a seven-year-old autistic 11 child of average intelligence with Pervasive Developmental 12 Disorder. 13 M.W. had made progress . . . in the area of peer 14 interactions and, during the previous year at Luria, M.W. 15 had made friends and was able to participate in a Despite his disorders, the IEP recognized that year, M.W. s Floor Time therapist worked with him outside the classroom. When sent to observe M.W. before the CSE meeting that produced the challenged IEP, the DOE representative observed M.W. on the hallway floor having an emotional breakdown during his Floor Time therapy. Around September of the 2010-2011 school year, M.W. developed Tourette Syndrome which caused a frequently disruptive tic. For that year, M.W. spent a significant amount of time outside of the classroom to work one-on-one with his paraprofessional as needed to control his disruptions. See Tr. 816, 824-25, 845-46, 854, 939, 945-50. Additionally, M.W. s teacher and paraprofessional would plan ahead to have him removed from the classroom for instruction, sometimes with another student. Tr. 808, 923. Page 7 of 37 1 continuous flow of back and forth interactions with his 2 peers. 3 that M.W. had significant self-regulation difficulties, 4 became frustrated easily, and struggled to calm himself down 5 in the event of a behavioral crisis. Sealed App x 1847. The IEP, however, also noted Id. The IEP recommended placement in a general education 6 7 environment with integrated co-teaching ( ICT ) services 8 with a 12:1 staffing ratio, five days a week, for a ten- 9 month school year.3 The IEP also provided M.W. with a full- 10 time behavioral management paraprofessional to give him one- 11 on-one help self-regulating in times of behavioral crisis, 12 and these other related services: Service 13 Sessions x Week Duration Students 14 1 Counseling 1 x week 30 mins. 3 15 2 Occupational Therapy 3 x week 30 mins. 1 16 3 Physical Therapy 2 x week 30 mins. 1 17 4 Speech/Language Therapy 2 x week 30 mins. 1 3 The 12:1 staffing ratio means that one special education teacher would provide ICT services for up to twelve IEP students, the statutory maximum, in a classroom that also included typically developing students, a general education curriculum, and a general education teacher. For a detailed discussion of ICT services, see Discussion, infra, at XX. Page 8 of 37 1 2 3 5 Speech/Language Therapy 1 x week 30 mins. 2 Sealed App x 1860. Finally, the IEP concluded that M.W. s behavior 4 seriously interfere[d] with instruction and require[d] 5 additional adult support. 6 conclusions, the IEP required a behavioral intervention plan 7 ( BIP ), which was incorporated in the IEP. 8 The BIP identified emotional meltdowns, poor self- 9 regulation, and poor attention as the behavioral Id. 1847. Based on those Id. at 1860. 10 difficulties that impaired M.W. s academic progress and 11 recommended a reward system, praise and encouragement, and 12 positive modeling as strategies to modify those behaviors. 13 Id. at 1862. 14 attentive and focused and to better control himself when 15 frustrated. 16 teacher, paraprofessional, and the Parents were to 17 collaborate. 18 frequency of M.W. s meltdowns because Luria did not 19 provide a functional behavior assessment ( FBA ), and the 20 DOE did not request or develop one. 21 22 The goal was to teach M.W. to become more Id. To implement those strategies, M.W. s The BIP did not quantify data relating to the On July 1, 2010, the DOE sent a letter to M.W. s Parents that classified M.W. as an autistic student and Page 9 of 37 1 recommended an ICT classroom4 at P.S. 197, the Ocean School, 2 with the related services that the IEP recommended. 3 visited the school, decided to keep M.W. at Luria, and 4 immediately began the administrative-review process seeking 5 reimbursement for the 2010-2011 school year. Mom 6 C. Administrative Review 7 On July 8, 2010, the Parents filed their demand for due 8 process and requested a hearing. The Parents subsequently 9 amended their demands on September 29, 2010. On May 2, 10 2011, the Parents submitted their closing brief after 12 11 hearing days that took place over the entire school year. 12 In relevant parts, the Parents argued that the IEP would 13 have denied M.W. a FAPE because the IEP Team created a BIP 14 without the benefit of an FBA and the IEP failed to provide 15 parent counseling and training as a related service. 16 Parents also argued that the P.S. 197 placement was 17 defective because the recommended 10-month program exposed The 18 4 The letter actually recommended Collaborative Team Teaching ( CTT ). CTT is equivalent to ICT. See http://www.p12.nysed.gov/specialed/publications/policy/schoolagec ontinuum.html ( New York City (NYC) has used the term collaborative team teaching (CTT) to identify a service that meets the regulatory definition of integrated co-teaching services. ). In any event, the parties do not mention or argue over this distinction. Page 10 of 37 1 M.W. to regression risks. Finally, the Parents argued that 2 the IEP assigned M.W. to an overly restrictive environment. 3 The IHO expressly agreed with the Parents regarding the 4 BIP, the omission of parental counseling, and the inadequacy 5 of a 10-month program. 6 restrictive environment requirement in passing, she made no 7 explicit findings as to whether a general education 8 environment with ICT services would be too restrictive.5 9 See Sealed App x 2155. Though the IHO mentioned the least The IHO found Luria to be an 10 appropriate placement and that the equities favored the 11 Parents. 12 reimbursed, and the DOE sought review by a SRO. 13 reversed the IHO s determinations and denied tuition 14 reimbursement. 15 district court affirmed that decision, and the Parents 16 appealed. Accordingly, the IHO ordered that the Parents be The SRO Relying heavily on the SRO s analysis, the 17 18 5 The IHO found that the ICT classroom, generally, was inappropriate because the class size was too large and the decision to make that placement was unsupported by documentary evidence. IHO Decision at 27. The IHO also summarily concluded that ICT service was an inappropriate support system for M.W. s developmental problems. Id. Those criticisms, however, were not tied to a restrictiveness analysis and offer no insight into Parents least restrictive environment arguments on appeal. Page 11 of 37 Discussion 1 2 3 I. Standard of Review and Burdens of Proof We undergo a circumscribed de novo review of a district 4 court s grant of summary judgment in the IDEA context 5 because the responsibility for determining whether a 6 challenged IEP will provide a child with [a FAPE] rests in 7 the first instance with administrative hearing and review 8 officers. 9 217, 240 (2d Cir. 2012). M.H. v. New York City Dep t of Educ., 685 F.3d Summary judgment in the IDEA 10 context, therefore, is only a pragmatic procedural 11 mechanism for reviewing administrative decisions. 12 rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 13 252 (2d Cir. 2009) (per curiam) (internal quotation marks 14 and citation omitted). 15 critical appraisal of the agency determination than clear- 16 error review but falls well short of complete de novo 17 review. M.H., 685 F.3d at 244 (quoting Lenn v. Portland 18 Sch. Comm., 998 F.2d 1083, 1086-87 (1st Cir. 1993) (internal 19 citations omitted)). 20 seeks to independently verify that the administrative record 21 supports the district court s determination that a student s 22 IEP was adequate. T.P. ex This review requires a more Accordingly, our de novo review only See R.E., 694 F.3d at 184. Page 12 of 37 1 In undertaking this independent review, we are further 2 restrained by our lack of specialized knowledge and 3 educational expertise; we must defer to the administrative 4 decision [particularly where] the state officer s review 5 has been thorough and careful. 6 v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 7 1998)). 8 decisions, we remain equally mindful that we cannot 9 substitute our own notions of sound educational policy for See id. (quoting Walczak While we will not rubber stamp administrative 10 those of the school authorities under review. 11 F.3d at 240. 12 reach conflicting conclusions, [w]e defer to the final 13 decision of the state authorities, that is, the SRO s 14 decision. 15 v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 16 171 (2d Cir. 2009)). 17 M.H., 685 Furthermore, when, as here, an IHO and SRO R.E., 694 F.3d at 189 (quoting A.C. ex rel. M.C. Recently, we parsed the amount of deference an SRO s 18 determination deserves and concluded that it depends on the 19 quality of that opinion. 20 Reviewing courts must look to the factors that normally 21 determine whether any particular judgment is persuasive, for 22 example, whether the decision being reviewed is well- 23 reasoned, and whether it was based on substantially greater See R.E., 694 F.3d at 189. Page 13 of 37 1 familiarity with the evidence and the witnesses than the 2 reviewing court. 3 244). 4 command of the record and supported her conclusions through 5 better legal and factual analysis than an IHO, we will have 6 little difficulty deferring to the SRO s opinion. 7 Accordingly, an appellant seeking to have a reviewing court 8 credit an IHO s determination over an SRO s determination 9 would benefit from calling our attention to an SRO s Id. at 189 (quoting M.H., 685 F.3d at Where an SRO has clearly demonstrated a better 10 specific errors in law, fact, or reasoning.6 11 See id. II. Procedural Violations 12 In determining whether an IEP complies with the IDEA, 13 courts make a two-part inquiry that is, first, procedural, 14 and second, substantive. 15 violations warrant tuition reimbursement only if they 16 impeded the child s right to a [FAPE], significantly 17 impeded the parents opportunity to participate in the 18 decision[-]making process, or caused a deprivation of 19 educational benefits. 20 1415(f)(3)(E)(ii); A.C., 553 F.3d at 172). Id. at 189-90. Procedural Id. at 190 (quoting 20 U.S.C. § 6 That is, parents By attempting to undercut the deference owed to the SRO based on her alleged personal inexperience, Parents counsel moved us to (re)articulate these guiding principles. See Compl. at 8, ¶ 23. Page 14 of 37 1 must articulate how a procedural violation resulted in the 2 IEP s substantive inadequacy or affected the decision-making 3 process. 4 cumulatively result in the denial of a FAPE even if the 5 violations considered individually do not. 6 Of course, [m]ultiple procedural violations may Id. Here, the Parents allege that the DOE committed two 7 procedural violations: it failed to undertake an FBA in 8 developing the BIP and it failed to include parental 9 training and counseling in the IEP. The Parents also assert 10 that the SRO impermissibly relied on retrospective testimony 11 to justify those omissions. 12 A. Behavioral Intervention Plan 13 An FBA provides an identification of [a disabled 14 student s] problem behavior, the definition of the behavior 15 in concrete terms, the identification of the contextual 16 factors that contribute to the behavior . . . and the 17 formulation of a hypothesis regarding the general conditions 18 under which a behavior usually occurs and probable 19 consequences that serve to maintain it. 20 R. & Regs. tit. 8 § 200.1(r)). 21 require the department to conduct an FBA for a student 22 whose behavior impedes his or her learning or that of 23 others. N.Y. Comp. Codes New York regulations See R.E., 694 F.3d at 190 (quoting N.Y. Comp. Page 15 of 37 1 Codes R. & Regs. tit. 8 § 200.4(b)(1)(v)). Those 2 regulations, however, only require an FBA as necessary to 3 ascertain the physical, mental, behavioral and emotional 4 factors which contribute to [a] suspected disabilit[y]. 5 N.Y. Comp. Codes R. & Regs. tit. 8 § 200.4(b)(1)(v) 6 (emphasis added). Though the IDEA incorporates some but not all state 7 8 law concerning special education, these regulations do not 9 raise the IDEA bar by rendering IEP s developed without an 10 FBA legally inadequate. 11 (quoting Bay Shore Union Free Sch. Dist. v. Kain ex rel. 12 Kain, 485 F.3d 730, 734 (2d Cir. 2007)). 13 requires a school district to consider the use of positive 14 behavioral interventions and supports, and other strategies 15 when a child s behavior impedes learning. 16 (quoting 20 U.S.C. § 1414(d)(3)(B)(i)) (internal quotation 17 marks omitted). 18 take particular care to ensure that the IEP adequately 19 addresses the child s problem behaviors. 20 190. 21 192-95; A.C., 553 F.3d at 172-73. 22 23 See A.C., 553 F.3d at 172 n.1 The IDEA only See id. at 172 An FBA omission does, however, cause us to Two cases chart our course. R.E., 694 F.3d at See R.E., 694 F.3d at In A.C., we concluded that the failure to conduct an FBA did not make an IEP legally inadequate because it noted Page 16 of 37 1 (1) the student s attention problems; (2) the student s need 2 for a personal aide to help the student focus during class; 3 and (3) the student s need for psychiatric and psychological 4 services. 5 effect of an FBA omission for three separate students. 6 R.E., 694 F.3d at 192-95. 7 that an FBA omission did not deny a FAPE where (1) the CSE 8 reviewed documents regarding the student s behavior, and (2) 9 the IEP provided strategies to address those behaviors, A.C., 553 F.3d at 172. In R.E. we considered the See For one student, we concluded 10 including the use of a 1:1 aide to help him focus. Id. at 11 193. 12 adequately addresses a disabled student s behaviors and 13 whether strategies for dealing with those behaviors are 14 appropriate are precisely the type of issue[s] upon which 15 the IDEA requires deference to the expertise of the 16 administrative officers. 17 Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 382 (2d 18 Cir. 2003)) (internal quotation marks omitted). Moreover, we have decided that whether an IEP A.C., 553 F.3d at 172 (quoting Failure to conduct an FBA, therefore, does not render 19 20 an IEP legally inadequate under the IDEA so long as the IEP 21 adequately identifies a student s behavioral impediments and 22 implements strategies to address that behavior. 23 id. See, e.g., Where the IEP actually includes a BIP, parents should Page 17 of 37 1 at least suggest how the lack of an FBA resulted in the 2 BIP s inadequacy or prevented meaningful decision-making. 3 See R.E. at 189-90. 4 an FBA would have exposed a BIP s obsolete assessment of the 5 student s behavioral problems or that the recommended 6 behavior-modification strategies failed to accommodate the 7 frequency or intensity of the student s behavioral problems. 8 Here, however, the Parents summarily argue that failure to 9 10 11 For example, parents could argue that conduct an FBA made the IEP legally defective; the record belies those assertions. As an initial matter, the IHO s FBA and BIP analysis 12 consisted of a single sentence without citation to the 13 administrative record: Lastly, I find there was no FBA 14 developed and the BIP was developed without parent or 15 teacher involvement and I find the BIP was not appropriate. 16 IHO Decision at 28. 17 depth, four-page discussion of the issue replete with legal 18 and factual analysis. 19 found that the IHO s finding was unsubstantiated by a record 20 which clearly established M.W. s behavioral problems, 21 identified strategies to manage those problems, and 22 recommended a collaborative intervention plan between the 23 Parents, teacher, and paraprofessional. By contrast, the SRO provided an in- See SRO Decision at 17-20. Page 18 of 37 The SRO 1 The SRO concluded that the BIP accurately described the 2 behaviors that interfered with learning: emotional 3 meltdowns, poor self-regulation, and poor attention. 4 support of her analysis, the SRO relied upon, inter alia, 5 the Luria progress reports, the Floor Time therapist s 6 report, and Graus s in-class observations of M.W., all of 7 which describe those behavioral difficulties in detail. 8 SRO Decision at 19 (citing Dist. Ex. 5-12). 9 confirm the accuracy of those descriptions and do not In See The Parents 10 contend that the IEP misidentified or overlooked their son s 11 behavioral issues. 12 of Material Facts ¶ 5. 13 determination that the BIP adequately described M.W. s 14 behavioral impediments. 15 See Parents Local Rule 56.1 Statement Accordingly, we agree with the SRO s The SRO also concluded that the BIP was consistent with 16 the information available to the CSE and that the 17 intervention services were adequate because they provided a 18 broad, collaborative approach to implement specific 19 strategies to modify those behaviors on a daily, one-on-one 20 basis. 21 less attention. 22 be provided with a reward system, praise, encouragement, and 23 positive modeling to learn to adjust his behavior within a The Parents do not contend that M.W. needed more or Additionally, the BIP recommended that M.W. Page 19 of 37 1 collaborative support system between parent, teacher, and 2 paraprofessional. 3 strategies. 4 single reason why an FBA was required for a legally valid 5 BIP. The Parents do not attack those The Parents have simply failed to articulate a We therefore affirm the SRO s determination that the 6 7 hearing record does not support the impartial hearing 8 officer s determination that the lack of an FBA rose to the 9 level of denying the student a FAPE where the IEP addressed 10 behavioral needs. SRO Decision at 20. As in R.E., (1) the 11 CSE reviewed documents regarding the student s behavior, and 12 (2) the IEP provided strategies to address those behaviors, 13 including the use of a paraprofessional. 14 193. R.E., 694 F.3d at 15 B. Parental Counseling 16 Next, the Parents argue that the IEP s failure to 17 include parental counseling denied M.W. a FAPE. 18 parents to perform appropriate follow-up intervention 19 activities at home, New York requires that an IEP provide 20 parents of autistic students training and counseling. 21 N.Y. Comp. Codes R. & Regs. tit. 8 § 200.13(d). 22 counseling and training means assisting parents in 23 understanding the special needs of their child; providing Page 20 of 37 To enable See Parent 1 parents with information about child development; and 2 helping parents to acquire the necessary skills that will 3 allow them to support the implementation of their child s 4 individualized education program. 5 (emphasis omitted). 6 counseling for the educational benefit of the disabled 7 student by ensuring that the parents are equipped with the 8 skills and knowledge necessary to continue and implement the 9 student s IEP at home. 10 Id. § 200.1(kk) The regulations contemplate parental We have previously described counseling omissions as 11 procedural violations less serious than the omission of an 12 FBA because the presence or absence of a parent-counseling 13 provision does not necessarily have a direct effect on the 14 substantive adequacy of the plan. 15 Moreover, because school districts are required . . . to 16 provide parent counseling, they remain accountable for their 17 failure to do so no matter the contents of the IEP. 18 (citing N.Y. Comp. Codes R. & Regs. tit. 8 § 200.13(d)). 19 If a parent wants counseling for her own sake, New York 20 provides her a remedy. 21 counseling ordinarily does not result in a FAPE denial or 22 warrant tuition reimbursement. R.E., 694 F.3d at 191. Id. Accordingly, failure to provide See id. 23 Page 21 of 37 Here, the IHO again summarily decided that parent 1 2 counseling and training was required and that parent 3 workshops that would have been provided to the Parents by 4 the Ocean School would not give the Parents the tools 5 necessary to perform follow-up at home. 6 28. 7 The SRO concluded that the counseling omission did not deny 8 M.W. a FAPE because Mom was a certified special education 9 teacher who had received, through her own initiative, 10 training and counseling in the therapies that M.W. had 11 previously used, and because the public school assigned to 12 M.W. provided training and counseling. 13 that the BIP required collaboration between 14 paraprofessional, the Parents, and teacher in order to 15 implement and support the recommended behavior-modification 16 strategies. 17 IHO Decision at 27- The IHO, however, did not explain those conclusions. We defer to that analysis. The SRO also noted The Parents have not 18 persuaded us that the parental counseling omission would 19 deprive M.W. of FAPE. 20 experience and the supports in the BIP provide adequate 21 assurance that M.W. s developmental plan and education would 22 continue at home. The SRO s analysis noted that Mom s 23 Page 22 of 37 1 2 C. Retrospective Justifications 3 The Parents assert that the SRO routinely relied upon 4 impermissible retrospective justifications to fill in the 5 IEP s inadequacies. 6 testimony that the school district would have provided 7 additional services beyond those listed in the IEP may not 8 be considered in a Burlington/Carter proceeding. 9 F.3d at 186. (emphasis added). In R.E., we held that retrospective R.E., 694 However, the case also 10 expressly reject[ed] . . . a rigid four corners rule 11 prohibiting testimony that goes beyond the face of the IEP. 12 While testimony that materially alters the written plan is 13 not permitted, testimony may be received that explains or 14 justifies the services listed in the IEP. 15 added). 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Id. (emphasis For example: [I]f an IEP states that a specific teaching method will be used to instruct a student, the school district may introduce testimony at the subsequent hearing to describe that teaching method and explain why it was appropriate for the student. The district, however, may not introduce testimony that a different teaching method, not mentioned in the IEP, would have been used. Id. at 186-87. Here, Parents contend that the SRO impermissibly credited retrospective testimony that justified the FBA Page 23 of 37 1 omission based on the BIP s broad, collaborative support 2 strategies and how those strategies would change as the 3 student s needs changed. 4 SRO s central analysis: the BIP was developed with specific 5 goals, strategies, and supports, but the collaborative 6 approach ensured that implementation could change as M.W. s 7 needs changed and ensured that behavioral modification 8 strategies would continue at home. 9 appropriate when a student s autism presents unique That argument, however, misses the That seems especially 10 challenges each day. 11 on retrospective justifications. 12 was no FBA, and the SRO did not rely upon a promise not 13 contained in the IEP to address the omission. 14 Accordingly, the analysis did not rely The DOE admits that there The Parents also assert that reliance on Mom s 15 educational background and the placement school s counseling 16 programs retrospectively justifies the omission of parental 17 counseling. 18 suffers from a conceded procedural infirmity, we first 19 review whether that procedural violation substantively 20 deprived the student of a FAPE before determining whether 21 the SRO corrected the substantive failure by impermissibly 22 crediting future promises. 23 SRO did not conclude that the IEP s omission of parental But, as we have just stated, when the IEP In making her determination, the Page 24 of 37 1 counseling denied M.W. of a FAPE and that the omission was 2 made sound by promises not contained in the IEP. 3 the SRO concluded that the parental counseling omission did 4 not deny M.W. a FAPE in the first instance because of the 5 BIP s collaborative approach to behavior modification, Mom s 6 education, and the school workshops. 7 the Parents were equipped to manage M.W. s needs without New 8 York s mandated counseling. 9 rely upon impermissible retrospection and we defer to her 10 III. The SRO concluded that Accordingly, the SRO did not analysis. 11 Instead, Substantive Adequacy and Least Restrictive Environment 12 13 The Parents also challenge the substantive adequacy of 14 the IEP. Substantive inadequacy automatically entitles the 15 parents to reimbursement. 16 state need not maximize the potential of handicapped 17 children, but the door of public education must be opened 18 in a meaningful way. 19 Newington Bd. of Educ., 546 F.3d 111, 119 (2d Cir. 2008) 20 (quoting Walczak, 142 F.3d at 130 (internal quotation marks 21 omitted)). 22 for more than only trivial advancement. Id. R.E., 694 F.3d at 190. The P. ex. rel. Mr. and Mrs. P. v. That is, the IEP must provide the opportunity 23 Page 25 of 37 1 2 A. Least Restrictive Environment 3 The IDEA expresses a strong preference for educating 4 disabled students alongside their non-disabled peers; that 5 is, in their least restrictive environment ( LRE ). 6 Walczak, 142 F.3d at 122. 7 that disabled children be educated [t]o the maximum extent 8 appropriate . . . with children who are not disabled, and 9 cautions that special classes, separate schooling, or other Specifically, the IDEA provides 10 removal of children with disabilities from the regular 11 educational environment should only occur when the nature 12 or severity of the disability of a child is such that 13 education in regular classes with the use of supplementary 14 aids and services cannot be achieved satisfactorily. 20 15 U.S.C. § 1412(a)(5)(A) (emphasis added). 16 [W]hile mainstreaming is an important objective, we 17 are mindful that the presumption in favor of mainstreaming 18 must be weighed against the importance of providing an 19 appropriate education to handicapped students. 20 546 F.3d at 119 (quotation marks and citation omitted). 21 tension between the IDEA s goal of providing an education 22 suited to a student s particular needs and its goal of 23 educating that student with his non-disabled peers as much Page 26 of 37 Newington, The 1 as circumstances allow dictates a case-by-case analysis in 2 reviewing whether both of those goals have been optimally 3 accommodated under particular circumstances. Id. (emphasis 4 added) 5 We have previously used a two-pronged test to determine 6 whether a school district has met the LRE mandate mindful of 7 our deferential position with respect to state educational 8 authorities crafting educational policy when applying it. 9 Id. at 120. First, can the student be satisfactorily 10 educated in the regular classroom, with the use of 11 supplemental aids and services[?] 12 that question we consider: (1) whether the school district 13 has made reasonable efforts to accommodate the child in a 14 regular classroom; (2) the educational benefits available to 15 the child in a regular class, with appropriate supplementary 16 aids and services, as compared to the benefits provided in a 17 special education class; and (3) the possible negative 18 effects of the inclusion of the child on the education of 19 the other students. 20 actually remov[es] the child from [a] regular classroom 21 [into] a segregated, special education class, a second 22 question confronts us: whether the school has included the 23 child in school programs with nondisabled children to the Id. at 120. Page 27 of Id. at 121. To answer If a school district 37 1 maximum extent appropriate. 2 These two questions, however, do not adequately address 3 M.W. s placement in a general education environment with 4 integrated co-teaching services, a placement somewhere in 5 between a regular classroom and a segregated, special 6 education classroom. 7 definition of integrated co-teaching. 8 9 Id. (quotation omitted). New York regulations set out the To enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate, 10 specially designed instruction and supplementary services 11 may be provided in the regular class, including, as 12 appropriate, providing related services, resource room 13 programs and special class programs within the general 14 education classroom. 15 200.6(a)(1). 16 teaching services in its continuum of services. Id. at § 17 200.6(g). 18 N.Y. Comp. Codes R. & Regs. tit. 8 § A school district may include integrated co- Integrated co-teaching services means the provision of 19 specially designed instruction and academic instruction 20 provided to a group of students with disabilities and 21 nondisabled students. 22 with disabilities receiving integrated co-teaching services 23 in a class shall be determined in accordance with the Id. The maximum number of students Page 28 of 37 1 students individual needs [and the] number of students with 2 disabilities in such classes [cannot] exceed 12 students 3 unless a variance was provided. Id. at § 200.6(g)(1). 4 minimum, the classroom must include a special education 5 teacher and a general education teacher. 6 200.6(g)(2). 7 a self-contained setting. 8 9 At a Id. at § In contrast, a special education classroom is See Id. at § 200.6(h)(4). The Parents refer repeatedly to an ICT classroom and they assert that the use of ICT services makes M.W. s 10 placement akin to a segregated special education classroom 11 rather than a regular classroom with supports. 12 the Parents argue that the DOE failed to consider a regular 13 classroom with additional supports. 14 say that a classroom with ICT services is not a regular 15 classroom, it is likewise unfair to characterize the 16 placement as a segregated, special-education environment. 17 Newington, however, does not compel a choice between the two 18 extremes of a regular classroom and a special education 19 classroom. 20 student is pulled out of a regular classroom and placed in a 21 special education classroom all or some of the time. 22 Accordingly, we do not have to decide whether this is a 23 regular classroom or a special education classroom. Accordingly, Though it is fair to Newington only gives us a test to use when a Page 29 of 37 Though 1 M.W. s placement adds a degree of complexity to the LRE test 2 articulated in Newington, we need only consider whether the 3 placement of M.W. in a general education environment with a 4 regular curriculum alongside typically developing peers but 5 supplemented with a special education teacher was overly 6 restrictive for M.W. 7 Both the IEP and the New York regulations characterize 8 ICT as a service in a general education environment rather 9 than a special education classroom. The IEP s School 10 Environment and Service Recommendation would have placed 11 M.W. in a general education environment for all areas of 12 instruction. 13 service, along with the use of a behavior management 14 paraprofessional and M.W. s other related services. 15 also noted that no areas of instruction were to be in a 16 special-class environment. 17 ICT was listed as a supplementary aid and The IEP Moreover, both the IHO and SRO treated ICT as a service 18 and not a special-education classroom. The IHO concluded 19 that the DOE failed to present any evidence that an ICT 20 program . . . provided sufficient special education support 21 for [M.W.] in the classroom. 22 added). 23 she also characterized the use of a special education IHO Decision at 26 (emphasis A close reading of the SRO s opinion reveals that Page 30 of 37 1 teacher, paraprofessional, and related services as 2 provid[ing] special education support and that M.W. 3 deserved to be in a general education curriculum alongside 4 typically developing peers on account of his high 5 functionality. 6 these facts, M.W. has not persuaded us that the ICT services 7 were too restrictive and the record does not reflect that 8 New York s statutory schema incorrectly classifies ICT 9 services as a placement less restrictive than a segregated, See SRO Decision at 16 (emphasis added). On 10 special-education classroom. 11 analyze M.W. s ICT classroom placement as a placement in a 12 special-education classroom. 13 Accordingly, we decline to The question then in this case is whether the ICT 14 services were appropriate supports for M.W. within a general 15 education environment. 16 with ICT services was overly restrictive because M.W. had 17 been educated alongside exclusively non-disabled peers . . 18 . [and that he had proven] that with support, he could make 19 it in a far less restrictive environment. 20 Parents rely upon the IDEA s prescription that children be 21 educated with non-disabled children to the maximum extent 22 appropriate, see 20 U.S.C. § 1412(a)(5)(A), whereas the FAPE 23 mandate only requires an appropriate public education. The Parents contend that a classroom Page 31 of 37 Br. at 22. The 1 They assert that any classroom restrictions that result in 2 raising the educational level afforded to the student beyond 3 what can be deemed appropriate are therefore 4 impermissible, maintaining that the test is not whether a 5 student can learn more or learn better in a more 6 restrictive setting, but simply whether the student can 7 learn satisfactorily with aids and services in a less 8 restrictive environment. Br. at 22. 9 not stand for that robust proposition. Our cases, however, do 10 The IDEA seeks to provide disabled children with a 11 meaningful public education while protecting them from being 12 inappropriately sequestered in a special-education 13 classroom. 14 concerned about the apparently widespread practice of 15 relegating handicapped children to private institutions or 16 warehousing them in special classes. ). 17 recognizes this apparent tension and instructs us to weigh 18 the presumption of mainstreaming against educational 19 benefits obtained in more restrictive settings through a 20 case-by-case analysis that seeks an optimal result across 21 the two requirements. 22 LRE requirement as a strong preference and cautioned that 23 the presumption in favor of mainstreaming must be weighed Burlington, 471 U.S. at 373 ( Congress was Newington Moreover, Newington characterized the Page 32 of 37 1 against the importance of providing an appropriate education 2 to handicapped students; sometimes education in a regular 3 classroom cannot be achieved satisfactorily. 4 F.3d at 119. 5 compel a choice between a regular classroom and a special 6 education classroom. 7 the DOE will consider a continuum of related services and 8 options that will be a best fit for the student in 9 question. Newington, 546 But, as just articulated, Newington does not Likewise, the IDEA contemplates that 10 Accordingly, the Parents position ignores that we 11 weigh the benefits of a less-restrictive environment against 12 the backdrop of the educational benefits a child can receive 13 in such an environment. 14 moving M.W. from an educational setting where he experienced 15 some progress into a more restrictive setting, ipso facto, 16 warrants tuition reimbursement for a private placement. 17 Instead, we examine whether the preponderance of the 18 evidence supports the SRO s conclusion that the IEP provided 19 M.W. an appropriate education in his least restrictive 20 environment. 21 Therefore, we do not assume that The Parents also contend that the addition of ICT 22 services were inappropriate and too restrictive because M.W. 23 would be learning alongside as many as twelve other IEP Page 33 of 37 1 students. 2 restrictiveness of the educational environment and related 3 services turns exclusively on the number of IEP students 4 present. 5 tailored to each student s particular needs does not admit 6 of statistical generalizations. 7 121-22. 8 9 We reject the unsupported assertion that the [T]he objective of providing an education Newington, 546 F.3d at Accordingly, we consider whether the ICT services were overly restrictive along the continuum of services available 10 to M.W. in a general education environment. 11 make any conclusions or findings regarding the LRE per se. 12 She did, however, conclude in summary fashion that the 13 district presented no documentary evidence to support the 14 appropriateness of the ICT placement in light of M.W. s 15 various developmental problems. 16 the SRO thoroughly addressed the LRE mandate and the 17 appropriateness of the ICT services, we defer to her 18 conclusions. 19 The IHO did not IHO Opinion at 27. Because A careful review of the record reveals that M.W. s 20 autism and related disorders caused behavioral issues that 21 disrupted class and impaired his educational development. 22 Chanie Graus, the psychologist and DOE representative, 23 concluded that M.W. would benefit from two teachers in the Page 34 of 37 1 classroom versus one [because] it s really important for 2 [M.W.] to be exposed to typically developing students, since 3 he s under the autistic spectrum, but he s high 4 functioning. Tr. 433-34. 5 in a segregated special education classroom would really be 6 detrimental to him. 7 his average I.Q., and that he s only mildly delayed in 8 comparison to other students his grade, Graus said they 9 wanted M.W. to be challenged and exposed to a general Graus thought that putting M.W. Id. at 434. Id. Taking into consideration 10 education curriculum. At the IEP meeting, no one 11 expressed disagreement with the recommendation for an ICT 12 classroom. 13 education classroom would be inappropriate because of his 14 emotional difficulties and that having a special education 15 teacher would be a benefit. Graus also concluded that a regular general Id. at 437. 16 A preponderance of the evidence supports the SRO s 17 conclusions that the IEP recommendation of ICT services in a 18 general education setting was appropriate and reasonable. 19 The DOE was not required to place M.W. in a regular 20 classroom where he was the only IEP student. 21 B. 22 The Parents also argue the DOE s failure to provide a 23 Length of Program 12-month program denied M.W. a FAPE. Page 35 of 37 The IHO determined 1 that the CSE failed to justify the elimination of a 12- 2 month program and the administrative record did not support 3 a reduction in services from a 12-month program to a 10- 4 month program. IHO Decision at 26. 5 IHO did not cite to any evidentiary basis for her 6 determination and concluded that the determination that 7 the district s decision not to offer 12-month services 8 denied the student a FAPE [was] not supported by the hearing 9 record. SRO Decision at 23. 10 The SRO noted that the We defer to that conclusion.7 The Parents rely exclusively on the IHO s statement 11 that the [DOE] s own witness . . . stated [that] M.W. 12 required a 12-month program to develop their argument. 13 IHO Decision at 26 (citing Tr. at 761) (emphasis added). 14 That reliance is misplaced. 15 education teacher who would have been leading M.W. s ICT 16 services and who was not part of the IEP team. 17 that being a teacher, . . . more is better, and for a child See The DOE witness was the special 7 She said The IHO s misstatements of the record further justify this deference. The IHO credited the district s own witness who stated based on her review of the June 10, 2010 IEP [M.W.] required a 12-month program. IHO Decision at 26. The district s witness was the special-education teacher who would have ran M.W. s ICT services. In response to a question whether M.W. would benefit from a 12-month program she merely stated: Oh, well, being a teacher, I - more is better, and for a child with such deficits, I think a 12 month would be good for this child. Anything to help him, you know. Tr. 762. She also testified that he would have made progress in a 10-month program. Tr. 770. Page 36 of 37 1 with such deficits, I think a 12 month [program] would be 2 good for the child. Tr. 761 (emphasis added). That 3 concession does not suggest that such a program would be 4 necessary or required to prevent regression. 5 administrative record reveals that regression was not a 6 topic discussed at the IEP meeting. 7 testified that she was not seeking tuition reimbursement for 8 a 12-month program, only a 10-month program. 9 Accordingly, we are not persuaded that the SRO erred in 10 concluding that the absence of 12-month services did not 11 deny M.W. a FAPE. We also do not agree that the cumulative 12 results of the alleged errors resulted in a FAPE denial. 13 See R.E., 694 F.3d at 190. 14 Moreover, the See Tr. 638. Mom Tr. at 1109. Having considered all of the Parents arguments on 15 appeal, we find them to be without merit. 16 conclude that the SRO correctly determined that the IEP was 17 substantively adequate and, despite alleged procedural 18 flaws, provided M.W. a FAPE. 19 20 Accordingly, we Conclusion The district court s order of June 15, 2012, granting 21 summary judgment for Defendant-Appellee New York City 22 Department of Education is hereby AFFIRMED. Page 37 of 37
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