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 UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2…

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
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2010 3
(Argued: April 25, 2011 Decided: June 29, 2012) 4
------------------------------------- 5
M.H. AND E.K. individually and collectively on behalf of P.H., 6
Plaintiffs-Appellees, 7
- v - Docket No. 10-2181 8
New York City Department of Education, 9
Defendant-Appellant. 10
------------------------------------- 11
M.S. individually, M.S., collectively and on behalf of D.S., 12
L.S., individually, L.S., collectively and on behalf of D.S., 13
Plaintiffs-Appellants, 14
- v - Docket No. 10-2418 15
16
New York City Department of Education, 17
Defendant-Appellee. 18
------------------------------------- 19
Before: SACK, LIVINGSTON, and LYNCH, Circuit Judges. 20
Appeals from opinions and orders in two different cases 21
decided in the United States District Court for the Southern 22
District of New York (Loretta A. Preska, Chief Judge, and Lewis 23
A. Kaplan, Judge, respectively), granting, in M.H., the 24

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2
plaintiffs' motion for summary judgment and, in M.S., the New 1
York City Department of Education's motion for summary judgment. 2
The plaintiffs in both cases are the parents of disabled children 3
who challenged the procedural and substantive adequacy of the 4
Individualized Education Plans that the defendant, New York City 5
Department of Education, had developed for the plaintiffs' 6
children pursuant to the Individuals with Disabilities Education 7
Act, 20 U.S.C. § 1400 et seq. The plaintiffs also sought 8
reimbursement of funds spent on private-school tuition for their 9
children. 10
In M.H., we conclude that the district court properly 11
agreed with the determinations of the Impartial Hearing Officer 12
who initially considered the matter in the State's administrative 13
scheme, and properly rejected the subsequent determinations of 14
the State Review Officer. In M.S., although we conclude that the 15
magistrate judge -- who recommended granting the Department's 16
motion for summary judgment -- overstated the extent to which 17
federal courts must defer to the findings of state administrative 18
officers, we conclude that the Department's motion was properly 19
granted. 20
Affirmed. 21
JULIE STEINER (G. Christopher Harriss, 22
Stephen J. McGrath, Andrew Rauchberg, of 23
counsel, on the brief), on behalf of 24
Michael A. Cardozo, Corporation Counsel 25
of the City of New York, New York, New 26

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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
York, for Defendant-Appellant New York 1
City Department of Education. 2
3
JESSE COLE CUTLER (Samantha Bernstein, 4
on the brief), Skyer and Associates, 5
L.L.P., New York, New York, for 6
Plaintiffs-Appellees M.H. and E.K on 7
behalf of P.H.; for Plaintiffs- 8
Appellants M.S. and L.S. individually 9
and collectively on behalf of D.S.. 10
SACK, Circuit Judge: 11
BACKGROUND 12
Both of these appeals, which we heard in tandem, 13
concern the proper interpretation of the Individuals with 14
Disabilities Education Act ("IDEA"), 1 20 U.S.C. § 1400 et seq. 15
They each involve unique facts which must therefore be set out in 16
considerable detail in order to address the legal issues they 17

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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
raise. 2 The cases both require us to address the manner in which 1
the federal courts must go about their IDEA-mandated review of 2
state administrative decisions. 3
The IDEA 4
Congress enacted the IDEA "to ensure that all children 5
with disabilities have available to them a free appropriate 6
public education . . . designed to meet their unique needs . . . 7
[and] to ensure that the rights of children with disabilities and 8
parents of such children are protected." 20 U.S.C. 9
§ 1400(d)(1)(A)-(B); see also Forest Grove Sch. Dist. v. T.A., 10
557 U.S. 230, 247 (2009) (concluding that a court could award 11
private-school-tuition reimbursement to the parents of disabled 12
children not provided a "Free Appropriate Public Education"). 13
"The IDEA offers federal funds to states that develop plans to 14
assure 'all children with disabilities' [residing in each such 15
state] a 'free appropriate public education,' 20 U.S.C. 16
§ 1412(a)(1)(A)." Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 17
377, 379 (2d Cir. 2003). 18

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5
"To meet [the IDEA's] requirements, a school district's 1
program must provide 'special education and related services[,]' 2
[20 U.S.C. § 1401(9)], tailored to meet the unique needs of a 3
particular child, and be reasonably calculated to enable the 4
child to receive educational benefits." Gagliardo v. Arlington 5
Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (some internal 6
quotation marks omitted); see also Grim, 346 F.3d at 379 7
(similar). These services "must be administered according to an 8
'individualized education program' . . . , which school districts 9
must implement each year for each student with a disability." 10
Id. (quoting 20 U.S.C. § 1414(d)). 11
An individualized education program ("IEP") is "a 12
written statement that 'sets out the child's present educational 13
performance, establishes annual and short-term objectives for 14
improvements in that performance, and describes the specially 15
designed instruction and services that will enable the child to 16
meet those objectives.'" D.D. ex rel. V.D. v. N.Y.C. Bd. of 17
Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (quoting Honig v. Doe, 18
484 U.S. 305, 311 (1988)), amended on other grounds, 480 F.3d 138 19
(2d Cir. 2007). Under the IDEA, for a child's IEP to be 20
adequate, it must be "[']likely to produce progress, not 21
regression, and [must] . . . afford[] the student with an 22
opportunity greater than mere trivial advancement.'" T.P. ex 23
rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 24

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6
(2d Cir. 2009) (quoting Cerra v. Pawling Cent. Sch. Dist., 427 1
F.3d 186, 195 (2d Cir. 2005)). However, it need "not . . . 2
furnish every special service necessary to maximize each 3
handicapped child's potential." Grim, 346 F.3d at 379 (quoting 4
Bd. of Educ. v. Rowley, 458 U.S. 176, 199 (1982)) (brackets, 5
ellipsis, and internal quotation marks omitted). Under an IEP, 6
"education [must] be provided in the 'least restrictive setting 7
consistent with a child's needs.'" Id. (quoting Walczak, 142 8
F.3d at 122 (2d Cir. 1998)). The IEP is "[t]he centerpiece of 9
the IDEA's educational delivery system." D.D. ex rel. V.D., 465 10
F.3d at 507 (internal quotation marks omitted). 11
"Since New York State receives federal funds under 12
IDEA, it is obliged to comply with the requirements of this law. 13
To meet these obligations and to implement its own policies 14
regarding the education of disabled children, the State has 15
assigned responsibility for developing appropriate IEPs to local 16
Committees on Special Education [('CSEs')], the members of which 17
are appointed by school boards or the trustees of school 18
districts." Walczak, 142 F.3d at 123 (citing N.Y. Educ. Law 19
§ 4402(1)(b)(1)). "In developing a particular child's IEP, a CSE 20
is required to consider four factors: (1) academic achievement 21
and learning characteristics, (2) social development, (3) 22
physical development, and (4) managerial or behavioral needs." 23
Gagliardo, 489 F.3d at 107-08 (citing N.Y. Comp. Codes R. & Regs. 24

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7
("NYCCRR") tit. 8, § 200.1(ww)(3)(i)). "[T]he CSE must also be 1
mindful of the IDEA's strong preference for 'mainstreaming,' or 2
educating children with disabilities '[t]o the maximum extent 3
appropriate' alongside their non-disabled peers." Id. at 108 4
(citing 20 U.S.C. § 1412(a)(5)) (second set of brackets in 5
original). 6
If a New York parent "believe[s] an IEP is insufficient 7
under the IDEA," he or she "may challenge it in an 'impartial due 8
process hearing,' 20 U.S.C. § 1415(f), before an [Impartial 9
Hearing Officer, or 'IHO'] appointed by the local board of 10
education." Grim, 346 F.3d at 379 (quoting N.Y. Educ. Law 11
§ 4404(1)). At the hearing before the IHO, "the school district 12
has the burden of demonstrating the appropriateness of its 13
proposed IEP." Id. As the governing New York State statute 14
explains: 15
The board of education or trustees of the 16
school district or the state agency 17
responsible for providing education to 18
students with disabilities shall have the 19
burden of proof, including the burden of 20
persuasion and burden of production, in any 21
such impartial hearing, except that a parent 22
or person in parental relation seeking 23
tuition reimbursement for a unilateral 24
parental placement shall have the burden of 25
persuasion and burden of production on the 26
appropriateness of such placement. 27
28

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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
N.Y. Educ. Law § 4404(1)(c). 3 An IHO's decision may, in turn, be 1
appealed to a State Review Officer ("SRO"), who is an officer of 2
the State's Department of Education. Grim, 346 F.3d at 379-80. 4
3

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Education as the "DOE" or the "School District." We refer to the
State's Education Department as the "Education Department."
9
Generally, either "party aggrieved" by the findings of 1
the SRO "shall have the right to bring a civil action" in either 2
state or federal court. 20 U.S.C. § 1415(i)(2)(A). When such an 3
action is brought in federal district court, the court reviews 4
the records of all of the prior administrative hearings and must 5
hear additional evidence if so requested by either of the 6
parties. Id. at § 1415(i)(2)(c). The court typically considers 7
the propriety of the IEP on the parties' cross motions for 8
summary judgment. 9
However, 10
a motion for summary judgment in an IDEA case 11
often triggers more than an inquiry into 12
possible disputed issues of fact. Rather, 13
the motion serves as a pragmatic procedural 14
mechanism for reviewing a state's compliance 15
with the procedures set forth in [the] IDEA 16
[in developing the specific IEP at issue] and 17
determining whether the challenged IEP is 18
reasonably calculated to enable the child to 19
receive educational benefits. 20
Lillbask ex rel. Mauclaire v. State of Conn. Dep't of Educ., 397 21
F.3d 77, 83 n.3 (2d Cir. 2005) (internal quotation marks 22
omitted). "Though the parties in an IDEA action may call the 23
procedure 'a motion for summary judgment,' the procedure is in 24
substance an appeal from an administrative determination, not a 25
summary judgment [motion]." Id. (ellipsis, brackets, and 26
citation omitted). "[B]asing its decision on the preponderance 27

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10
of the evidence, [the court is required to] grant such relief as 1
the court determines is appropriate." § 1415(i)(2)(C)(iii). 2
In the separate proceedings consolidated for purposes 3
of this appeal, the parent plaintiffs assert that the school 4
districts serving their children, having failed to provide each 5
of them with a free appropriate public education ("FAPE"), must 6
reimburse the parents for the costs associated with sending these 7
children to private schools for an appropriate education. 8
Although these cases are similar to many IDEA cases in this 9
regard, see, e.g., Gagliardo, 489 F.3d at 106, they inevitably 10
involve distinct facts and procedural histories. 11
M.H. Background 12
P.H., the son of M.H. and E.K., was born on October 11, 13
2001. He is autistic. During the 2006-07 school year, when P.H, 14
was of pre-school age, he attended a mainstream preschool. 15
Pursuant to a mandate of the Committee on Preschool Special 16
Education (the "CPSE") of the New York State Education 17
Department, he received Special Education Itinerant Teacher 18
("SEIT") services on a one-to-one ("1:1") basis. The SEIT worked 19
one-on-one with P.H. throughout the school day at P.H.'s home. 20
Plaintiffs' 56.1 Statement ¶¶ 2-3, M.H. v. N.Y.C. Dep't of Educ., 21
712 F. Supp. 2d 125 (S.D.N.Y. 2010) (No. 09 Civ. 3657), ECF No. 22
13 ("Pls. 56.1 Stmt."); Defendants' 56.1 Response ¶¶ 2-3, M.H. v. 23
N.Y.C. Dep't of Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010) (No. 24

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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, H EALING
THRESHOLDS (Nov. 5, 2009, last updated Dec. 21, 2009),
http://autism.healingthresholds.com/therapy/applied-behavior-anal
ysis-aba (footnotes and emphases omitted).
11
09 Civ. 3657), ECF No. 19 ("Def.'s 56.1 Resp."). Pursuant to the 1
CPSE mandate, P.H.'s SEITs were trained in Applied Behavior 2
Analysis ("ABA") 5 and provided at least 35 hours weekly of 3
services using that approach. Pls.' 56.1 Stmt. ¶¶ 2-3; Def.'s 4
56.1 Resp. ¶¶ 2-3. 5
In addition, P.H. received several related services 6
weekly, including five 60-minute speech therapy sessions; three 7
60-minute occupational therapy sessions; and two 60-minute 8
physical therapy sessions. Pls.' 56.1 Stmt. ¶ 4; Def.'s 56.1 9
Resp. ¶ 4. 10
The DOE's CSE convened a meeting on April 17, 2007, to 11
discuss P.H.'s educational program for the 2007-08 school year – 12

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12
when P.H. would be in kindergarten -- and to formulate his IEP 1
for that year. Pls.' 56.1 Stmt. ¶ 5; Def.'s 56.1 Resp. ¶ 5. The 2
CSE comprised: (1) Giselle Jordan, a DOE representative and 3
school psychologist who led the meeting; (2) P.H.'s SEIT; (3) a 4
social worker; (4) a general education teacher; (5) a special 5
education teacher; (6) P.H.'s parents; (7) an additional parent 6
member of the CSE; and (8) the director of P.H.'s preschool 7
program. Pls.' 56.1 Stmt. ¶ 6. 8
Jordan, as CSE team leader, was ultimately responsible 9
for preparing P.H.'s IEP. Jordan had never met P.H. She 10
testified that she prepared the IEP by reviewing all of the 11
records provided to her and participating in the CSE meeting. 12
Before the CSE meeting, P.H.'s parents provided the CSE 13
with several documents, including: (1) a psycho-educational 14
evaluation of P.H. and addendum prepared by Dr. David Salsberg, a 15
supervising pediatric psychologist at NYU Medical Center, who 16
treated P.H. privately; (2) P.H.'s speech, occupational, and 17
physical therapy progress reports prepared by treating 18
specialists; (3) an educational progress report from P.H.'s SEIT; 19
(4) a social history update from a DOE social worker; (5) a 20
classroom observation report by a different DOE social worker; 21
and (6) a report prepared by P.H.'s pre-school teacher. Jordan 22
testified in the subsequent proceedings before the IHO that it 23

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13
was her practice to review all submitted documents before the CSE 1
meeting. 2
According to the documents submitted to the CSE, along 3
with a public-school placement, P.H. received occupational 4
therapy, speech therapy, ABA therapy, and physical therapy at 5
home. He was making moderate progress with this combination of 6
mainstream placement and private support. The SEIT's report 7
stated that "[b]eing around typical peers [in the mainstream pre- 8
school] ha[d] helped [P.H.] in his ability to communicate 9
socially." Overall, P.H. had made "substantial progress 10
throughout the year." M.H., Joint Appendix in Court of Appeals 11
filed Oct. 13, 2010 ("M.H. J.A."), at 1185. 12
P.H.'s parents reported to the CSE that they thought he 13
was "doing very well in his current mainstream placement and 14
[was] flourishing with typical peers." Id. at 1192. Dr. 15
Salsberg's report offered the view that P.H. should be placed in 16
"a small classroom setting . . . [that] provide[s] frequent 17
opportunities for social interaction with peers." Id. at 1144. 18
Dr. Salsberg's initial report did not mention ABA therapy, but 19
his addendum stated that P.H. "requires 1:1 intensive language- 20
based behavioral interventions by an experienced SEIT throughout 21
the day," and that P.H. "requires continuation of his home-based 22
ABA, [occupational therapy,] and speech/language program." Id. 23
at 1189. P.H.'s preschool teacher similarly opined that P.H. 24

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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
required 1:1 support in order to function in the classroom 1
setting. She thought, though, that the classroom setting was not 2
"an appropriate place" for him. Id. at 1159. 3
As a result of the April 17 DOE CSE meeting, the CSE 4
formulated an IEP for P.H. Pls.' 56.1 Stmt. ¶ 22; Def.'s 56.1 5
Resp. ¶ 22. Under the IEP, P.H. would be placed in a special 6
school in a special education class with a 6:1:1 student-teacher- 7
paraprofessional ratio. The IEP also provided for (1) twice 8
weekly 30-minute physical therapy sessions; (2) thrice weekly 30- 9
minute occupational therapy sessions; and (3) thrice weekly 30- 10
minute speech and language therapy sessions. Under this IEP, 11
P.H. would thus receive fewer hours of these related services 12
than he had been receiving under the prior year's plan. 13
Based on the IEP, by Final Notice of Recommendation 14
dated July 11, 2007, the School District notified P.H.'s parents 15
that he had been placed at the school denominated P.S. 94, a 16
smaller school located within the building of P.S. 15, on East 17
4th Street in Manhattan. 6
18

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15
The parties dispute what happened after parents M.H. 1
and E.K. received the IEP and Final Notice of Recommendation. 2
The plaintiff parents assert that "[f]or two weeks" they 3
"attempted to contact the proposed placement to schedule a visit 4
to determine whether the class was appropriate for P.H. There 5
was no answer at the school building and the parent[s'] messages 6
were not returned." Pls.' 56.1 Stmt. ¶ 28. 7
Thereafter, the parents say, they were directed to 8
Ronnie Schuster, the principal at a different site, who, the 9
parents were told, would be the principal at P.S. 94 in the fall. 10
They assert that they visited Schuster's then-school on August 7 11
or 8, 2007, to observe a class similar to the one in which P.H. 12
would be enrolled at P.S. 94 pursuant to his IEP. They met Oliva 13
Cebrian, a teacher who was to be the site leader at P.S. 94. 14
Cebrian took them to observe a 6:1:1 summer-program class that, 15
she said, was similar to the class P.H. could expect to enter in 16
the fall. Id. ¶ 30. In their view, the children in the class 17
were lower functioning than P.H. and had "little expressive 18
language." M.H. J.A. at 727. It appeared to M.H. that the 19
teacher was only "babysitting" the children. Id. M.H. also 20
contended that Cebrian told him that the mainstream children at 21
the school did not act as though they welcomed special education 22
children -- the latter group ate lunch in a separate cafeteria 23
and used a separate entrance to the school. 24

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16
After the visit, M.H. again contacted Schuster, seeking 1
further information about the placement, including whether P.H. 2
would be able to interact with mainstream students. Schuster 3
referred him to another DOE employee, Sonia Royster, whom he then 4
telephoned. When, according to M.H., Royster did not return the 5
call, M.H. followed up by letter. According to M.H., Royster 6
never responded. 7
At about the same time, M.H. and E.K., who were not yet 8
persuaded that the IEP's placement was appropriate for their son, 9
explored other options, including the Brooklyn Autism Center 10
("BAC"), a private school. The plaintiffs visited BAC and met 11
with its educational director, Jaime Nicklas. BAC provides a 12
program for autistic children that features intensive ABA 1:1 13
instruction to its five students; tuition is $80,000 per school 14
year, payable at the beginning of each year. 15
After the visit, the parents submitted an application 16
to BAC. M.H. testified that with the start of the school year 17
fast approaching, his intention was "to place [P.H.] temporarily 18
if they'll accept him into BAC in that program," while M.H. 19
continued to seek information regarding the IEP's public school 20
placement. M.H. J.A. 733. P.H. was accepted into BAC, and the 21
plaintiffs signed the contract with the school and paid a 22
deposit. 23

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17
On August 24, 2007, one week after signing the BAC 1
contract, M.H. visited Royster -- to whom Schuster had referred 2
him -- at her office. According to M.H., Royster could not 3
provide any further information about P.H.'s placement. M.H. 4
asserts that he "literally had to camp out" at the CSE office "to 5
get any information whether it be on [P.H.'s placement or] his 6
related services." M.H. J.A. 736. 7
On the first day of school at P.S. 94 – September 10, 8
2007 – according to M.H., having failed to get any information 9
from Royster, M.H. again contacted Schuster. When, he says, he 10
did not receive a response, he followed up by email on September 11
14, inquiring whether he could visit the proposed placement. He 12
did not receive a responsive email until nine days later, on 13
September 19. 14
The next day, after observing two different classes at 15
P.S. 94, M.H. was of the view that neither was an appropriate 16
place for his son: In one, the students were young and, unlike 17
P.H., nonverbal and not toilet trained; in the second, the 18
students were many years P.H.'s senior. M.H. also thought that 19
P.H. would not benefit from the instruction offered in the 20
classes, both because the school offered only minimal ABA 1:1 21
therapy and because, M.H. thought, the methodologies the school 22
did use would not work for P.H. 23

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18
The DOE contends that it could have offered P.H. 1
placement in yet a third class, but does not suggest that it so 2
informed M.H. After visiting P.S. 94, the parents decided to 3
keep P.H. at BAC for the 2007-08 school year, and paid the 4
remainder of the $80,000 tuition in full. 5
By letter dated October 30, 2007, M.H. and E.K., 6
through counsel, requested a due process "impartial hearing" and 7
sought reimbursement for P.H.'s BAC tuition. In that request, 8
they alleged that the DOE failed to provide P.H. with a FAPE, 9
developing instead a procedurally and substantively unreasonable 10
IEP. 11
The parents also asserted three specific procedural 12
challenges to the IEP: (1) that the annual goals and short-term 13
objectives presented for P.H. were "generic and vague," and 14
lacked evaluative criteria, in violation of the IDEA; (2) that 15
the CSE failed to conduct an Functional Behavioral Assessment 16
("FBA") to evaluate P.H.'s social needs; and (3) that the IEP 17
ultimately did not mandate social and emotional counseling for 18
P.H. despite acknowledging at one point in the document that such 19
counseling was necessary. The plaintiffs also asserted that the 20
IEP was substantively inadequate because the classrooms 21
identified for P.H. did not meet his needs and would not have 22
provided him with an educational benefit. 23

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19
As is required under the IDEA, in response to the 1
parents' request, a DOE IHO conducted a hearing to review the 2
IEP. The hearing lasted eight non-contiguous days between 3
January 30, 2008, and September 5, 2008. M.H. J.A. 1345. 4
The DOE, which bore the burden of proof, presented 5
testimony by: Giselle Jordan, the CSE organizer and drafter of 6
the IEP; and Susan Cruz, an Assistant Principal at the proposed 7
placement. Id. at 1345-47. 8
Jordan testified, among other things, that she had 9
reviewed all of the documents submitted to the CSE committee. 10
She stated that P.H. did not demonstrate behavioral problems that 11
interfered with his learning; described the CSE meeting and the 12
process of producing the IEP; and discussed P.H.'s test scores. 13
Cruz explained the structure and programming at P.S. 94. 14
Later, on rebuttal, the DOE also called Elizabeth 15
Washburn, a teacher at P.S. 94, and Kay Cook, a "coach" who 16
trains DOE staff on teaching methodologies for autistic students 17
including ABA, TEACCH, and PECS, the latter being the principal 18
methodologies used at P.S. 94. 19
The plaintiffs presented testimony by BAC director 20
Jaime Nicklas; P.H.'s treating psychologist Dr. David Salsberg; 21
P.H.'s speech pathologist Miranda White; and M.H., P.H.'s father. 22
In addition to explaining BAC's program, Nicklas described the 23
ABA methodology in depth and voiced her opinion that ABA is "the 24

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20
only empirical method approved to treat children with autism." 1
M.H. J.A. at 454. She admitted, however, that "a strict ABA 2
program is not appropriate for every single child," and that 3
higher functioning children would not benefit from being in a 4
"more restrictive environment . . . if they can communicate and 5
if they can learn in a large group setting." M.H. J.A. at 467. 6
She also testified that based on her observation of P.H., it was 7
clear to her that he needed an ABA program to progress. Finally, 8
Nicklas testified that P.H. had made great strides during his 9
time at BAC, learning to identify objects he wanted, asking for 10
help, walking quietly, and identifying basic numbers and words, 11
among other things. Dr. Salsberg's testimony focused on the 12
importance of ABA treatment to P.H.'s continued progress. 13
After hearing the testimony, the IHO issued her 14
findings and decision. She agreed with the parents that the 15
IEP's annual goals and objectives were "generic and vague" and 16
"not based on his actual needs and abilities, but on the grade he 17
was expected to be placed in." M.H. J.A. at 1356. In support of 18
this conclusion, the IHO cited Jordan's testimony to the effect 19
that prior to the IEP meeting she thought P.H. would be entering 20
first grade, and that, after learning that he would in fact be 21
entering kindergarten, she changed the annual goals but did not 22
change the short-term goals and objectives. Id. The IHO also 23
agreed with the parents that "some of the April 2007 IEP annual 24

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21
goals and short term objectives in reading comprehension, reading 1
skills and math [were] not measurable since they d[id] not 2
contain evaluative criteria, evaluation procedures and schedules 3
to be used to measure progress." Id. 4
The IHO then discussed her review as to the appropriate 5
method for teaching P.H. Although the parents did not 6
specifically raise this issue in their letter requesting the 7
hearing, the IHO characterized the parents as "contend[ing] that 8
the appropriate methodology for the student was ABA discre[te] 9
trial instruction." Id. at 1357. According to the IHO, P.H.'s 10
"evaluations support their claim." Id. The IHO then decided 11
that the IEP's proposed placement did not offer sufficient 1:1 12
ABA instruction, but that the BAC did. Id. Finally, the IHO 13
concluded that because BAC was an appropriate place for P.H. and 14
because equitable considerations favored the parents, 15
reimbursement of P.H.'s BAC tuition costs was appropriate. Id. 16
The DOE appealed the IHO's decision to the SRO. On 17
December 10, 2008, the SRO issued a decision reversing the IHO. 18
Id. at 1362. After recounting the facts in some detail, the SRO 19
addressed the DOE's contention that because the parents did not 20
raise the question of educational methodology in their letter 21
requesting the due process hearing, the IHO should not have 22
considered it. He concluded that in light of the parents' 23
failure to include such a claim in their letter, it was 24

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22
"procedurally improper for the [IHO] to bas[e] her finding that 1
the district did not provide the student a FAPE in part on her 2
determination that the appropriate methodology for [P.H.] was 3
ABA." Id. at 1372. Turning to the merits, the SRO "f[ound] that 4
the . . . annual academic goals [contained in the IEP] were 5
appropriate for [P.H.] and that they provided meaningful guidance 6
to the teacher responsible for implementing the goals." Id. at 7
1374. 8
With regard to the IEP's "non-academic goals," the SRO 9
acknowledged that some of those contained in the IEP "lacked a 10
written specified level of difficulty when isolated out of 11
context and viewed alone," but thought that because "the majority 12
of the student's short-term objectives were both detailed and 13
measurable," this cured any deficiencies with the annual goals. 14
Id. The SRO was also satisfied that the "IEP . . . contained 15
sufficient goals and short-term objectives relating to [P.H.'s] 16
social/emotional needs." Id. He also noted that "although not 17
dispositive," the parents did not express any concern about the 18
specificity of the IEP's goals until they filed their hearing 19
request letter. Id. at 1375. 20
Turning to the substance of the program endorsed by the 21
IEP, the SRO determined that although the parents "previously 22
indicated that they believed [P.H.] was doing 'very well' in his 23
mainstream preschool setting with SEIT support and they wanted 24

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23
him to be placed in a similar setting for kindergarten, the 1
hearing record does not support that a general education setting 2
would be appropriate [for P.H.]." Id. (citation omitted). The 3
SRO then cited testimony regarding P.S. 94's use of "various 4
methodologies," and concluded that "the recommended placement was 5
reasonably calculated to enable [P.H.] to obtain educational 6
benefit." Id. The SRO thus decided that the IHO had "erred in 7
[her] determination that the district did not offer [P.H.] a FAPE 8
for the 2007-08 school year." Id. The SRO therefore did not 9
reach the question of whether BAC was an appropriate unilateral 10
placement. 11
M.H. and E.K., on behalf of P.H., challenged the SRO's 12
decision through a civil action brought in the United States 13
District Court for the Southern District of New York. By 14
complaint dated April 9, 2009, the plaintiffs sought "(a) a 15
modified de novo review and reversal of the . . . [SRO]'s 16
December 10, 2008 Decision . . . ; (b) a determination that M.H. 17
and E.K. and P.H. have met the applicable Second Circuit standard 18
for reimbursement of tuition paid for the unilateral provision of 19
special education services to P.H.; (c) an order directing 20
defendant to reimburse plaintiff, as requested, for the provision 21
of such educational services; and (d) an order granting plaintiff 22
leave to file a fee application pursuant to the fee shifting 23
provisions of the statute." Compl. at 2, M.H. v. N.Y.C. Dep't of 24

-- 23 of 94 --

24
Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010) (No. 09 Civ. 3657), 1
ECF No. 1. 2
The parties then cross-moved for summary judgment. By 3
a lengthy and detailed Opinion and Order dated May 10, 2010, the 4
district court (Loretta A. Preska, Chief Judge) reversed the SRO, 5
agreeing with the IHO instead. M.H. v. N.Y.C. Dep't of Educ., 6
712 F. Supp. 2d 125 (S.D.N.Y. 2010). After a careful rehearsal 7
of the facts, the court engaged in a point-by-point consideration 8
of the IHO's and SRO's decisions. 9
First, the district court decided that the SRO had 10
erred by declining to consider the plaintiffs' evidence regarding 11
the proper methodology for teaching their son. Id. at 148-52. 12
In the district court's view, it was the DOE that first raised 13
the issue of methodology. The plaintiffs could not fairly be 14
precluded from responding. Id. 15
Second, the district court concluded that the IEP did 16
not comply with IDEA's procedural requirements. In analyzing the 17
issue, the court began with the observation that the opinion of 18
the SRO was neither cogently reasoned nor supported by adequate 19
evidence. The court therefore based its analysis on the 20
reasoning and conclusions of the IHO. The district court thought 21
them clear and in accordance with the applicable standards 22
previously set forth by this Court. Id. at 153-63. 23

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25
The district court did not, however, fault the CSE for 1
its failure to conduct a Functional Behavioral Assessment. An 2
FBA is the "process of determining why a student engages in 3
behaviors that impede learning and how the student's behavior 4
relates to the environment." NYCRR tit. 8, § 200.1®. The CSE 5
did not conduct an FBA before adopting P.H.'s IEP. In P.H.'s 6
case, an FBA would have considered why he engaged in abnormal 7
behavior such as repeatedly biting his hand, screaming, and self- 8
stimulating, or "stimming." Pls.' 56.1 Stmt. ¶¶ 15-16. 9
As the district court noted, "[f]ailure to conduct an 10
FBA does not amount to a procedural violation of the IDEA where 11
the IEP sets forth other means to address the student's 12
problematic behaviors." Id. at 158. The court concluded that 13
because the IEP identifies P.H.'s problematic behavior but states 14
that it does not render him entirely unteachable, the SRO's 15
determination that the absence of an FBA did not render the IEP 16
unreasonable was appropriate. Id. at 159. 17
With regard to the IEP's substantive compliance with 18
IDEA mandates, the district court relied on the IHO's opinion 19
rather than that of the SRO. Id. at 159-66. The court agreed 20
with the IHO's conclusion that the IEP did not provide a program 21
that would meet P.H.'s needs. Id. The court also accepted the 22
IHO's determination that the classroom identified for P.H. was 23
not appropriate because it did not provide sufficient ABA 24

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7 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
therapy. Id. at 161-63. Finally, the court agreed with the IHO 1
that BAC was an appropriate unilateral placement, and that 2
equitable considerations favored reimbursement. Id. at 163-70. 3
The court therefore granted the plaintiffs' motion for summary 4
judgment, denied the defendant's, and ordered the DOE to 5
reimburse the plaintiffs for P.H.'s 2007-08 BAC tuition. Id. at 6
170. 7
M.S. Background 8
M.S. and L.S.'s son, D.S., was diagnosed with an autism 9
spectrum disorder -- more specifically, Pervasive Developmental 10
Disorder -- when he was 17 months old. 7 Immediately thereafter, 11
D.S. began to receive services from the New York State Early 12
Intervention program ("E.I."), including 20 hours per week of 13
special education involving a combination of ABA and other 14
therapy techniques. M.S., Joint Appendix in Court of Appeals 15
filed Oct. 29, 2010 ("M.S. J.A."), at 912. He also received 16
occupational and physical therapy. Id. Within a year it became 17
clear that methodologies other than ABA were not working for D.S. 18
His therapy was therefore increased to 30 hours of ABA each week. 19

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27
By the time D.S. "aged out" of E.I., he was receiving 40 hours of 1
ABA therapy with an SEIT, in addition to five hours per week of 2
speech and occupational therapy and two hours per week of 3
physical therapy, each of them in one-hour sessions. D.S. 4
continued to receive this program by mandate of the CPSE. At 5
four years old, D.S. was totally non-verbal, engaged in 6
"extremely high rates of self-stimulatory behaviors," and 7
displayed "distractible tendencies [that] profoundly interfere[d] 8
with his learning and ability to attend to people and things in 9
his environment." M.S. J.A. 234. In addition, he often put non- 10
edible objects into his mouth. 11
Beginning with the 2007-08 school year, D.S. was 12
considered by the CPSE to be a "school aged" child. He was 13
therefore required to have an IEP created for him by a CSE -- a 14
Committee on Special Education -- rather than an educational plan 15
prescribed by the DOE's CPSE. In late May 2007, L.S., D.S.'s 16
mother, was notified that the CSE would be meeting to consider 17
the issue. L.S. telephoned Dr. Bowser, the district 18
representative responsible for D.S.'s IEP, to schedule the 19
meeting and offered to provide Dr. Bowser with evaluations of 20
D.S. by his then-caregivers. Dr. Bowser informed L.S. that she 21
could bring the evaluations to the CSE meeting rather than 22
sending them to Bowser so that she could review them in 23
preparation for the meeting. 24

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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-the-
next/parentTeamMember.htm (last visited June 27, 2012).
28
The CSE convened a meeting on June 4, 2007, to discuss 1
D.S.'s IEP for his kindergarten year. In attendance were, inter 2
alios, (1) L.S.; (2) a special education teacher; (3) a general 3
education teacher; and (4) Dr. Bowser. DOE evaluator Marion 4
Pearl addressed the meeting by phone. The meeting lasted 45 5
minutes. At the beginning of the meeting, Dr. Bowser informed 6
L.S. that although she had a right to have a parent member 8
7
present, no parent member was available to attend that day. 8
According to L.S., Bowser appeared "quite stressed" about getting 9
the IEP done by early June. L.S. therefore "felt pressured to 10
have the meeting" even without a parent member present. M.S. 11
J.A. 918. L.S. therefore signed a waiver agreeing to the absence 12
of the parent member. Id. 13
The group received several written reports from D.S.'s 14
educational service providers. D.S.'s occupational therapist 15
reported that D.S.'s progress had been "extremely slow," and that 16
"[i]t is essential that [D.S.] receive[] [occupational therapy] 5 17
times a week for at least 60 minutes in order to make adequate 18

-- 28 of 94 --

29
progress." M.S. J.A. 251. D.S.'s speech therapist wrote that as 1
of that time, D.S. had "never spoken" and could "not effectively 2
communicate pain or discomfort . . . [or] basic wants or needs." 3
Id. at 247. She thought it to be "imperative that [D.S.] 4
continue[s] to receive speech and language therapy for no [fewer] 5
than [5] times weekly for [60] minute session to maintain and 6
carryover learned skills thus far, and to help him to communicate 7
spontaneously." Id. 8
D.S.'s physical therapist "recommended that [D.S.] 9
continue to receive physical therapy services as per mandate" to 10
continue his improvement. Id. at 249. The CSE group also 11
received a report from DOE evaluator Pearl, who, according to 12
L.S., recommended that D.S. be placed in an ABA program. 13
Jill Weynert, D.S.'s preschool program coordinator and 14
a certified behavior analyst, expressed the view at the IHO 15
hearing that D.S. "absolutely needed a one to one -- he needed an 16
ABA program." Id. at 481. Weynert explained that D.S. "had a 17
hard enough time learning with one to one," and that he "wouldn't 18
be able to learn" in a group setting. Id. at 483-84. She also 19
stated that unlike most children, D.S. would not benefit from 20
being exposed to peers in a classroom environment because he 21
could not "attend to other kids." Id. at 484. 22
According to Weynert, there was no discussion at the 23
CSE meeting of D.S.'s progress over the previous year, or whether 24

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30
he had achieved any of the annual or short-term goals that the 1
CPSE had theretofore set out for him. L.S. later testified 2
before the DOE IHO that during the meeting, Bowser indicated that 3
D.S. would be placed in a 6:1:1 program despite L.S.'s "expressed 4
. . . concerns" about such a placement. M.S. J.A. 921. L.S. 5
requested that the CSE consider programs like the one at the New 6
York City Charter School of Autism, which provides 1:1 ABA 7
therapy. Spaces at the City School of Autism are allocated by 8
lottery. D.S. had not been chosen. But L.S. hoped the DOE might 9
be able to offer a similar program elsewhere. Dr. Bowser 10
informed L.S. that "all . . . she could offer at th[e] time . . . 11
was a 6:1:1 placement, that was all that was available." Id. 12
Ultimately, D.S.'s IEP did not reflect his progress 13
during the previous year or how that progress might call for 14
altering goals for the subsequent year. Instead, the team 15
photocopied D.S.'s goals and objectives from the previous year's 16
CPSE plan for use in the then-current year despite the fact that 17
those goals and objectives were not only a year old, but had been 18
drafted for the home-based 1:1 program D.S. was offered that year 19
and were therefore, according to M.S. and L.S.'s arguments, 20
inapplicable to the then-current year. 21
The CSE, led by Bowser, ultimately recommended in the 22
IEP that they approved for D.S. that he attend a classroom-based 23

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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
6:1:1 program in a District 75 school. 9 The IEP noted that the 1
committee had considered and rejected five other types of 2
placements, including general education and a 12:1:1 special 3
education class in a District 75 school. The plan did not, 4
however, reflect any consideration by the committee of a 1:1 ABA 5
program. The IEP also reduced D.S.'s related services, directing 6
that he receive thirty minutes each of occupational, physical, 7
and speech therapy, five times per week, and thirty minutes of 8
counseling three times weekly. 9
After receiving a final notice of D.S.'s placement at 10
P.S. 94 (part of P.S. 196) 10 in late-June 2007, L.S. visited the 11
school, accompanied by Dr. Weynert. For two hours, they observed 12
the class to which D.S. would be assigned. L.S. later reported 13
that the class had only one non-verbal student, and that the book 14
he used for communicating -- his PECS book 11 – stayed in his desk 15

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32
the entire time she was there, leaving him with no way to 1
communicate. L.S. also noted that although she had been told 2
that the non-toilet-trained students in the class were brought to 3
the bathroom every 30 minutes, she did not observe them being 4
taken to the restroom at all in her two hours there. 5
L.S. also expressed concern that the teachers were not 6
adequately trained, that the students' self-stimulatory behaviors 7
went unchecked, and that D.S.'s "mouthing" behaviors -- i.e., his 8
tendency to put anything and everything in his mouth -- were 9
dangerous and would not be properly monitored at the school. 10
When L.S. raised these issues with P.S. 94's principal 11
Ronnie Schuster, she agreed that "she in fact would be concerned 12
for [D.S.'s] safety" there, particularly if he did not have a 13
paraprofessional devoted to him throughout the day. M.S. J.A. at 14
936. Teachers at the school indicated that the school did 15
provide ABA programs to some students, but these programs were 16
not individualized and were offered in only part of the special 17
education classroom. At the end of the visit, L.S. "felt 18
strongly that I was in agreement with the experts, the 19
professionals, the doctors, the educators, who had all -- all 20
told me that" D.S. would not fare well in a 6:1:1 setting. Id. 21
at 941. 22
In light of their discomfort, D.S.'s parents explored 23
private school options for D.S., including the BAC. D.S. was 24

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33
accepted to BAC and another specialized school. His parents 1
chose to enroll him at BAC, which offers only ABA 1:1 teaching. 2
They signed a contract with BAC pledging to pay the $80,000 3
tuition for the 2007-08 school year. 4
By letter dated December 28, 2007, the plaintiffs filed 5
with the DOE a request for an impartial hearing. In the letter, 6
the plaintiffs alleged that the DOE failed to provide D.S. a FAPE 7
for the 2007-08 school year inasmuch as: (1) the CSE team was not 8
properly constituted at the June 4, 2007, meeting at which the 9
individualized education plan was developed, because it lacked a 10
parent member, and the general education teacher was present for 11
only part of the meeting; (2) the IEP failed to set new goals for 12
D.S. for the relevant school year, instead photocopying his goals 13
from the previous year, which had been developed for a 1:1 14
program and did not reflect D.S.'s progress during the prior 15
year; (3) the IEP failed to explain why D.S.'s related services 16
were reduced; and (4) the 6:1:1 program to which D.S. had been 17
assigned could provide neither an appropriate peer group nor 18
adequate supervision and instruction. The parents sought 19
reimbursement for D.S.'s BAC tuition for that year. 20
The IHO convened a hearing comprising six hearing days 21
between April 9, 2008, and October 8, 2008. At the hearing, the 22
DOE called as witnesses: (1) Dr. Bowser; (2) Alex Campbell, a 23
special education teacher who was in charge of the 6:1:1 class to 24

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34
which the IEP had assigned D.S.; and (3) Susan Cruz, an assistant 1
principal of P.S. 94, who testified generally about the school. 2
Bowser was the DOE's principal witness. She testified that while 3
she had not met or observed D.S., her review of his records 4
convinced her that a general education setting was not 5
appropriate for him. She stated that all parties present at the 6
CSE meeting agreed with that assessment, and that the IEP 7
therefore required specialized schooling with the addition of 8
twelve months of related services. 9
Dr. Bowser endorsed the 6:1:1 placement, explaining 10
that a small class size was required because D.S. "must be 11
carefully supervised at all times during the day, because he [is] 12
unaware of danger." M.S. J.A. at 55-56. However, Bowser later 13
conceded that she did not know of any program other than 6:1:1 14
that the DOE could offer to autistic children, thereby implying 15
that she did not consider whether a 1:1 program might be more 16
appropriate. She further stated that the related services were 17
all necessary, explaining that although D.S. would receive fewer 18
hours of in-home services, he would be receiving similar services 19
in the classroom setting, so that "in effect, he would be getting 20
more services." Id. at 60. 21
Dr. Bowser conceded that the CSE team had incorporated 22
goals for D.S. that had been photocopied from the prior year's 23
plan, but stated that they had discussed "every goal," and 24

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35
determined that each was still appropriate because it had not yet 1
been met. Id. at 61. Dr. Bowser further stated that she had 2
reviewed the evaluations from D.S.'s treating doctors and 3
therapists, and that she agreed with most of them but disagreed 4
with one doctor's recommendation that D.S. required attention 5
seven days a week. 6
Alex Campbell, a special education teacher with seven 7
years' experience and training in various methodologies including 8
ABA, TEACCH, and PECS, also testified. Campbell, who would have 9
been D.S.'s teacher had D.S. attended public school, testified 10
that 6:1:1 learning can be appropriate for autistic children 11
because it can provide them with both individualized attention 12
and opportunities for group work. She said that there were four 13
autistic children in her class in 2007-08, all of them around 14
D.S.'s age, and that she maintained frequent and open 15
communication with all the students' parents by phone and by 16
notebook that was passed back and forth between school and home. 17
She reported that all the students progressed over the course of 18
the year. 19
The plaintiffs called several witnesses. Their first 20
was Dr. Weynert, D.S.'s program coordinator from 2005-2007. 21
According to Weynert, D.S. initially, in 2005, "presented . . . 22
really no notable functional skills. He engaged in extremely 23
high rates of self-stimulatory behaviors -- verbal and motor. He 24

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36
was unable to . . . play with any toy in the way it was intended. 1
. . [A]ny object was used to engage in self-stimulatory 2
behaviors." Id. at 471. She testified that D.S. "had the 3
toughest time learning," but that after almost two years of 4
intensive 1:1 ABA therapy for up to 35 hours a week, and many 5
hours per week of related services, D.S. was able to "learn how 6
to learn." Id. at 474. He nonetheless remained non-verbal and 7
easily distracted, and continued to engage in high rates of self- 8
stimulatory behavior. Weynert opined that 1:1 instruction was 9
"absolutely" the proper course for D.S. Id. at 481. 10
Dr. Weynert also testified that at the June 2007 CSE 11
meeting, the committee engaged in no discussion of methodology 12
other than listening to Weynert's recommendation that D.S. be 13
provided ABA 1:1 instruction. With regard to D.S.'s related 14
services, Weynert testified that she "strongly, strongly advised 15
against" the reduction of D.S.'s various therapies, but that the 16
CSE told her that "[t]hat's [all] they could do." Id. at 493. 17
Weynert explained that 30-minute sessions would be unproductive 18
for D.S. because "to engage [him] takes some time. . . . And a 19
half an hour, by the time you sat down with him and really began 20
to do anything your session would be over." Id. at 494. 21
During her testimony, Weynert discussed the visit she 22
and L.S. had made to P.S. 94 to observe the class to which D.S. 23
had been assigned. She reported that the teacher had "minimal" 24

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37
ABA training and that any ABA instruction was not tailored to the 1
individual children. She reported that the assistant teacher was 2
scolding a non-verbal child who was seeking attention rather than 3
helping him communicate. Weynert said that no data was being 4
collected on the children's behaviors and no "behavior reduction 5
plans" were in place. Id. at 499-500. She further testified 6
that she had visited BAC before D.S. enrolled there, and had been 7
impressed with that program. Weynert did concede, however, that 8
she had never observed D.S. himself in a BAC classroom. 9
The plaintiffs also called Jaime Nicklas, the BAC 10
director who also testified in P.H.'s due process hearing. She 11
explained that BAC offers full-time 1:1 ABA education to five 12
autistic students each year. While she acknowledged that ABA is 13
not the only methodology that can be used to educate children on 14
the autistic spectrum, id. at 569, she stated that it was the 15
most appropriate program for D.S. based on his "severe[]" autism 16
and his need for "intensive one on one services." Id. at 572. 17
Nicklas explained that during a typical day at BAC, D.S. would 18
work with five different instructors who would rotate between the 19
students to ensure that a child could generalize what he had 20
learned. He had opportunities to interact with mainstreamed 21
children during non-academic activities. BAC does not, however, 22
offer related services such as speech therapy in school. 23
Instead, the students receive those services at home. Id. at 24

-- 37 of 94 --

38
608. Nicklas testified that D.S. has made "a lot of progress" at 1
BAC; his speech, while challenging, "is coming along," and "his 2
behaviors have gotten a lot better." Id. at 603. For example, 3
D.S. now "walks with his hands in his pockets. His tapping 4
behavior has decreased significantly"; "his awareness has seemed 5
to increase." Id. 6
Finally, L.S., D.S.'s mother, testified. In addition 7
to providing basic background information on D.S., she discussed 8
her experiences at the CSE meeting and observing the proposed 9
placement at P.S. 94. She said that at BAC, D.S. had continued 10
to learn to communicate using an augmentative device called a 11
Dyanvox, that his ability to identify shapes, items, and body 12
parts had increased, and that his motor and play skills had 13
improved. 14
By opinion dated October 22, 2008, the IHO rejected the 15
plaintiffs' challenge, concluding that the DOE had offered D.S. a 16
FAPE for the 2007-08 school year. As to the plaintiffs' 17
procedural complaints, while the IHO acknowledged that some of 18
the proceedings, including the DOE's practice of encouraging 19
parents to waive the participation of a parent member, were 20
troubling, the IHO thought that they did not rise to the level of 21
the denial of a FAPE. The IHO further found that L.S. was 22
provided sufficient opportunity to participate meaningfully in 23
the CSE meeting, and that the limited involvement of the general 24

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39
education teacher was not material in light of the agreement by 1
all CSE members that general education was not appropriate for 2
D.S. 3
The IHO was also untroubled by the IEP's wholesale 4
importing of D.S.'s goals from the previous year. In the IHO's 5
view, those goals remained appropriate in light of the testimony 6
that D.S. learned very slowly. 7
As for the plaintiffs' objections to the substance of 8
the IEP, the IHO concluded that the 6:1:1 class was 9
"substantively appropriate and calculated for [D.S.] to make 10
educational progress." M.S. v. N.Y.C. Dep't of Educ., Special 11
Appendix ("M.S. S.P.A.") at 78. Specifically, the IHO cited Dr. 12
Bowser's testimony explaining the rationale for placing D.S. in a 13
6:1:1 setting, including that it would "address[] a lot of the 14
issues that were being brought up in the IEP," and would "enable 15
[D.S.] to make some success, improve his skills, and get 16
individualized assistance, with people who understand autism." 17
Id. at 79. The IHO was persuaded that the CSE committee had 18
"looked very carefully at [D.S.'s] need to be carefully 19
supervised at all times," and had taken that into account in 20
assigning him to a class with one teacher and one 21
paraprofessional. Id. 22
With regard to the reduction in D.S.'s related 23
services, the IHO noted that D.S. had received the IEP-authorized 24

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40
services during the 2007-08 school year in the amounts specified 1
in the IEP, and that L.S. testified that D.S. nonetheless had 2
made progress. The IHO therefore concluded that the parents were 3
"precluded from making the argument that the [related services] 4
amount recommended [was] inappropriate." Id. at 83. 5
With regard to methodology, the IHO decided that 6
although the people treating D.S. all recommended that he 7
continue in 1:1 ABA, "the people who recommended it believed that 8
it was the only methodology that worked and were not open to 9
other approaches." Id. at 84. The IHO cited the testimony of 10
Weynert and Nicklas to support this conclusion. Id. But the IHO 11
also noted that an IEP "need not specify or provide one type of 12
methodology," but that it "must provide for specialized 13
instruction in the child's areas of need." Id. The IHO was 14
satisfied that D.S.'s IEP met that requirement. Id. Finally, 15
the IHO rejected the parents' argument that the P.S. 94 teachers 16
were not "sufficiently trained and knowledgeable regarding 17
[D.S.'s] needs." Id. at 85. The IHO concluded that the evidence 18
amply supported the finding that the teachers were qualified. 19
For the foregoing reasons, the IHO denied the parents 20
reimbursement for the $80,000 BAC tuition. Id. 21
The parents, M.S. and L.S., appealed the IHO's decision 22
to an SRO. By decision dated January 9, 2009, the SRO dismissed 23
the appeal. Id. at 65. After summarizing the factual and 24

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41
procedural history at some length, the SRO briefly considered the 1
parties' arguments. He first addressed the IEP's alleged 2
procedural defects, concluding that, "[b]ased on the hearing 3
record and the particular facts before [him], and upon a complete 4
and independent review of the hearing record, [he was] not 5
persuaded that the [IHO] erred in finding . . . that the student 6
was offered a FAPE for the 2007-08 school year." Id. at 65. The 7
SRO did not discuss any of the procedural or substantive 8
arguments individually, instead rehearsing the language of the 9
regulations implementing the IDEA and then stating that he 10
"f[ound] no need to modify the [IHO's] decision." Id. In light 11
of this conclusion, the SRO, like the IHO, did not reach the 12
question whether BAC was an appropriate unilateral placement. 13
Id. 14
On May 8, 2009, the plaintiffs filed a complaint in the 15
United States District Court for the Southern District of New 16
York seeking review of the SRO's decision. The district court 17
judge to whom the case was assigned, Hon. Lewis A. Kaplan, 18
referred the case to Magistrate Judge James C. Francis IV for 19
further proceedings, including a Report and Recommendation on any 20
dispositive motion. See Report & Recommendation, M.S. & L.S. v. 21
N.Y.C. Dep't of Educ., 09 Civ. 4454 (LAK)(JCF) (S.D.N.Y. Mar. 12, 22
2010), ECF No. 25 ("R&R"). By motions filed on October 21, 2009, 23
the parties cross-moved for summary judgment. 24

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42
On March 12, 2010, the magistrate judge recommended 1
that the district court deny the plaintiffs' motion and grant the 2
DOE's, thereby leaving in place the IHO's findings that the DOE 3
provided D.S. with a FAPE for 2007-08. R&R at 1. The magistrate 4
judge set forth in the R&R a detailed factual history of the 5
case, summarizing the testimony before the IHO. He then turned 6
to the issue he thought dispositive: the degree of deference owed 7
to administrative decision makers in IDEA cases. Id. at 34-35. 8
He found this case to be indistinguishable from Grim for purposes 9
of determining the standard-of-review. There, we concluded that 10
the IDEA "strictly limit[s] judicial review of state 11
administrative decisions." R&R at 34 (quoting Grim, 346 F.3d at 12
380-81). He noted Grim's instruction that "the sufficiency of 13
goals and strategies in an IEP is precisely the type of issue 14
upon which the IDEA requires deference to the expertise of 15
administrative officers." Id. at 36 (quoting Grim, 346 F.3d at 16
382). With this in mind, the magistrate judge determined that he 17
was required to defer "to administrative decisions on most issues 18
relating to educational policy, whether or not they are 19
controversial." Id. He said that although 20
a court would be adept at determining if [the 21
CSE] properly made [a determination about how 22
to educate a child], . . . this Circuit 23
leaves little room to analyze substantive 24
deficiencies in the evidence presented by the 25
DOE at the hearing. Instead, case law 26
appears to indicate that as long a[s] the DOE 27

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43
is able to produce an expert to support its 1
position at a hearing and receives a positive 2
determination by at least one of the 3
administrative officers, the DOE's position 4
is nearly assured victory in the federal 5
courts. 6
Id. at 36-37 (citations omitted). The magistrate judge 7
"question[ed] whether the degree of deference to educational 8
administrators required by Grim[] and other Second Circuit cases 9
is consistent with the intent of Congress when it passed the 10
IDEA," but concluded that he was "nonetheless bound by those 11
decisions." Id. at 41. 12
The magistrate judge then addressed the merits of the 13
plaintiffs' arguments. As for the plaintiffs' procedural 14
challenges to the IEP, he noted that he was required to defer "to 15
the determinations of the SRO and IHO regarding the prejudicial 16
impact" of any procedural irregularities, id. at 43 (desribing 17
Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 426 18
(S.D.N.Y. 2007), aff'd, 293 F. App'x 20 (2d Cir. 2008)), even 19
though he thought it "unclear why such deference is appropriate, 20
given that determining procedural compliance with the IDEA does 21
not appear to require expertise in the field of education," R&R 22
at 43-44. 23
With regard to the composition of the CSE, the 24
magistrate judge concluded that any error in urging L.S. to waive 25
the presence of a parent member did not rise to the level of 26

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44
denying D.S. a FAPE. Id. at 44-46. As for the parents' argument 1
that "they were denied meaningful participation in the 2
development of D.S.'s IEP because the CSE failed to rely on 3
current evaluations of D.S.," id. at 46, he concluded that 4
"[a]lthough the plaintiffs' claims . . . are troubling, they do 5
not establish impermissible predetermination [of the IEP] in view 6
of Dr. Bowser's testimony and the deference afforded SRO and IHO 7
determinations under this Circuit's precedent," id. at 48. 8
On the last alleged procedural error, the incorporating 9
of D.S.'s goals from the prior year into the 2007-08 IEP, the 10
magistrate judge expressed "skepticism that all 22 pages of goals 11
and short-term objectives were reviewed in the course of [the] 12
45-minute [CSE] meeting that was not solely focused on this 13
information," but concluded that the court "[could not] disagree 14
with the IHO's ultimate conclusion." Id. at 50. 15
Turning to the plaintiffs' challenge to the substantive 16
adequacy of the IEP, the magistrate judge "agree[d] with the 17
plaintiffs that it is doubtful that D.S.'s IEP was sufficiently 18
individualized [and] . . . share[d] their concern that D.S. would 19
not progress at P.S. 94." Id. at 54. He nevertheless thought 20
himself "constrained to defer to the determination of the IHO and 21
SRO" that the IEP was substantively appropriate, id. at 55, 22
despite the testimony by "[t]hose who had met and evaluated 23
[D.S., who] insisted that he required 1:1 ABA therapy in order to 24

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45
progress." Id. at 54. In reluctantly reaching this conclusion, 1
the magistrate judge wrote: "[I]t is curious that experts with 2
experience working with the child at issue [i.e., D.S.'s 3
examining doctors, therapists and SEIT instructor] do not receive 4
similar deference" to the administrative review officers. Id. at 5
55. 6
The plaintiffs filed objections to the R&R. By order 7
dated May 14, 2010, however, the district court adopted the R&R 8
in its entirety. See Order, M.S. & L.S. v. N.Y.C. Dep't of 9
Educ., 09 Civ. 4454 (LAK)(JCF) (S.D.N.Y. May 14, 2010), ECF. No. 10
32. The court noted that it "differ[ed] from the magistrate 11
judge only as to the suggestion that he might have decided the 12
matter differently but for feeling constrained by the degree of 13
deference owed to administrative decisions in this context under 14
established Second Circuit precedent." Id. In the district 15
court's view, "[i]t [was] entirely unnecessary for [it] to 16
express any view on that question." Id. The court therefore 17
granted the defendant's motion for summary judgment. 18
DISCUSSION 19
I. Deference Owed to Administrative Findings 20
"Our standard for reviewing a state's administrative 21
decisions in IDEA cases is . . . well established." T.Y. v. 22
N.Y.C. Dep't of Educ., 584 F.3d 412, 417 (2d Cir. 2009), cert 23
denied, 130 S. Ct. 3277 (2010). "The responsibility for 24

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46
determining whether a challenged IEP will provide a child with an 1
appropriate public education rests in the first instance with 2
administrative hearing and review officers. Their rulings are 3
then subject to 'independent' judicial review." Walczak, 142 4
F.3d at 129. Nonetheless, "the role of the federal courts in 5
reviewing state educational decisions under the IDEA is 6
'circumscribed.'" Gagliardo, 489 F.3d at 112; see also Grim, 346 7
F.3d at 380-81 (interpreting the IDEA as "strictly limiting 8
judicial review of state administrative decisions"). A reviewing 9
court "must engage in an independent review of the administrative 10
record and make a determination based on a 'preponderance of the 11
evidence.'" Gagliardo, 489 F.3d at 112; see also Rowley, 458 12
U.S. at 206. But such review "is by no means an invitation to 13
the courts to substitute their own notions of sound educational 14
policy for those of the school authorities which they review." 15
Rowley, 458 U.S. at 206. 16
"To the contrary, federal courts reviewing 17
administrative decisions must give 'due weight' to these 18
proceedings, mindful that the judiciary generally 'lacks the 19
specialized knowledge and experience necessary to resolve 20
persistent and difficult questions of educational policy.'" 21
Gagliardo, 489 F.3d at 113 (quoting Rowley, 458 U.S. at 206, 208) 22
(brackets omitted); see also Walczak, 142 F.3d at 129 ("While 23
federal courts do not simply rubber stamp administrative 24

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47
decisions, they are expected to give 'due weight' to these 1
proceedings . . . .") (citation omitted). District courts are 2
not to make "subjective credibility assessment[s]," and cannot 3
"ch[oose] between the views of conflicting experts on . . . 4
controversial issue[s] of educational policy . . . in direct 5
contradiction of the opinions of state administrative officers 6
who had heard the same evidence." Grim, 346 F.3d at 383. As the 7
Supreme Court has said, "once a court determines that the 8
requirements of the Act have been met, questions of methodology 9
are for resolution by the States." Rowley, 458 U.S. at 208. 10
Courts generally "defer to the final decision of the 11
state authorities, even where the reviewing authority disagrees 12
with the hearing officer." A.C. ex rel. M.C. v. Bd. of Educ. of 13
the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009) 14
(quoting Karl ex rel. Karl v. Bd. of Educ. of Geneseo Cent. Sch. 15
Dist., 736 F.2d 873, 877 (2d Cir. 1984)) (internal quotation 16
marks omitted). "If the SRO's decision conflicts with the 17
earlier decision of the IHO, the IHO's decision may be afforded 18
diminished weight." A.C., 553 F.3d at 171 (internal quotation 19
marks omitted); see also Gagliardo, 489 F.3d at 114 n.2 (same). 20
"Deference is particularly appropriate when . . . the state 21
hearing officers' review has been thorough and careful." 22
Walczak, 142 F.3d at 129. The SRO's or IHO's factual findings 23
must be "reasoned and supported by the record" to warrant 24

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48
deference. Gagliardo, 489 F.3d at 114. And in our review of a 1
district court's decision under the IDEA, deference to 2
"administrative proceedings is particularly warranted where . . . 3
the district court's decision was based solely on the 4
administrative record." A.C., 553 F.3d at 171. 5
These principles are more easily stated by appellate 6
courts, even if at some length, than they are applied by district 7
courts, as the cases before us illustrate. The district court in 8
M.H. repeatedly quoted to our language in Gagliardo that a state 9
administrative finding does not merit deference unless it is 10
"reasoned and supported by the record," 489 F.3d at 114. See, 11
e.g., M.H., 712 F. Supp. 2d at 154, 157, 161, 163. The 12
magistrate judge in M.S., by contrast, articulated a highly 13
restricted standard of review, relying in particular on Grim to 14
decide that "as long a[s] the DOE is able to produce an expert to 15
support its position at a hearing and receives a positive 16
determination by at least one of the administrative officers, the 17
DOE's position is nearly assured victory in the federal courts." 18
R&R at 37. 19
The Supreme Court has only considered the standard of 20
review in these circumstances once. In Rowley, the district 21
court had held, contrary to New York school administrative 22
officers whose decisions it was reviewing, that the child, a deaf 23
student, had not been provided with a FAPE. Rowley v. Bd. of 24

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49
Educ. of Hendrick Hudson Cent. Sch. Dist., 483 F. Supp. 528, 529 1
(S.D.N.Y. 1980). According to the district court, the school 2
district had not given the student "an opportunity to achieve 3
[her] full potential commensurate with the opportunity provided 4
to other children." Id. at 534. The Court of Appeals affirmed. 5
Rowley v. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., 632 6
F.2d 945, 946 (2d Cir. 1980). 7
The Supreme Court reversed. It observed that 8
"[n]oticeably absent from the language of the statute is any 9
substantive standard prescribing the level of education to be 10
accorded handicapped children." Rowley, 458 U.S. at 189. In 11
light of Congressionally expressed intent to provide disabled 12
children with some educational opportunity, however, the Court 13
concluded that the Act provided only for a "'basic floor of 14
opportunity' . . . consist[ing] of access to specialized 15
instruction and related services which are individually designed 16
to provide educational benefit to the handicapped child." Id. at 17
201. 18
The Court then considered the meaning of the provisions 19
governing the district court's resolution of civil complaints 20
brought under the Act. The parents had argued that the Act's 21
reference to courts deciding issues based upon a preponderance of 22
the evidence means that the Act requires "de novo review over 23
state educational decisions and policies." Id. at 205. The 24

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50
State countered that courts "are given only limited authority to 1
review for state compliance with the Act's procedural 2
requirements and no power to review the substance of the state 3
program." Id. 4
The Supreme Court found neither view persuasive. 5
Congress had substituted the "independent decision based on a 6
preponderance of the evidence" language for "language that would 7
have made state administrative findings conclusive if supported 8
by substantial evidence." Id. at 205 (brackets omitted). 9
Therefore, Congress clearly intended for courts to have some 10
independent ability to review the decisions of administrative 11
officers. Id. The fact that Congress had placed emphasis on the 12
procedural protections afforded parents and children, however, 13
"demonstrates the legislative conviction that adequate compliance 14
with the procedures prescribed would in most cases assure much if 15
not all of what Congress wished in the way of substantive content 16
in an IEP." Id. at 206. For this reason, "the provision that a 17
reviewing court base its decision on the 'preponderance of the 18
evidence' is by no means an invitation . . . to substitute [its] 19
own notions of sound educational policy for those of the school 20
authorities which [it] review[s]." Id. 21
The Rowley Court continued: "The fact that [the IDEA] 22
requires that the reviewing court 'receive the records of the 23
[state] administrative proceedings' carries with it the implied 24

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51
requirement that due weight shall be given to these proceedings." 1
Id. (second alteration in original). 2
Congress' intention was not that the Act 3
displace the primacy of States in the field 4
of education, but that States receive funds 5
to assist them in extending their educational 6
systems to the handicapped. Therefore, once 7
a court determines that the requirements of 8
the Act have been met, questions of 9
methodology are for resolution by the States. 10
Id. at 208. 11
With this framework in place, the Court decided that 12
review should proceed on two levels: First, the district court 13
should ask whether the State has complied with the "procedures 14
set forth by the act." Id. at 206. And, second, the court 15
should decide whether "the individualized educational program 16
developed through the Act's procedures [is] reasonably calculated 17
to enable the child to receive educational benefits." Id. at 18
206-07. 19
Rowley left many issues unresolved, including: How 20
much weight is "due" to the administrative rulings? Is there a 21
difference between administrative rulings that appear grounded in 22
findings of fact and those based on conclusions of law? Is there 23
a different level of deference owed to questions of procedural 24
compliance as opposed to substantive compliance? And how should 25
courts treat a question of appropriate educational methodology 26

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52
that is bound up with a determination of whether the requirements 1
of the Act have been met? 2
In Walczak, we considered a district court's decision, 3
contrary to the determinations of state and local administrative 4
officers, that the school district had not provided an IEP that 5
was adequate to permit the disabled child to "make educational 6
and social progress." Walczak, 142 F.3d at 123. We sought to 7
determine how a federal court could conduct an "independent" 8
review pursuant to the IDEA without "impermissibly meddling in 9
state educational methodology." Id. at 130 (internal quotation 10
marks omitted). We concluded that at least in cases where the 11
substantive adequacy of the IEP is challenged, the district 12
court's review is limited to an examination of "'objective 13
evidence' indicating whether the child is likely to make progress 14
or regress under the proposed plan." Id. In Walczak there was 15
no objective evidence that the student had regressed, but there 16
was clear evidence of achievement, including her advancement to a 17
higher-level mathematics workbook. Id. at 131; see also Frank G. 18
v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006) 19
(applying "objective evidence" standard to determine whether a 20
parent's placement of a child in private school was appropriate), 21
cert. denied, 552 U.S. 985 (2007). There was, therefore, 22
insufficient evidence to support the district court's rejection 23
of the administrative findings. 24

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53
In Grim we considered the district court's 1
determination that two IEPs developed for a student in two 2
successive school years were substantively and procedurally 3
flawed. Grim, 346 F.3d at 380. First, we observed that Rowley's 4
requirement that courts give "due weight" to administrative 5
bodies implementing the statute applied to both "substantive" and 6
"procedural" challenges. Id. at 382-83. Then we concluded that 7
the district court had not applied the proper standard of review 8
in rejecting the IHO's and SRO's findings that the IEPs were 9
appropriate. 10
[The district court] justified its conclusion 11
by finding that '[n]either the IHO nor the 12
SRO [reviewing the . . . IEPs] gave 13
appropriate consideration to the experts on 14
dyslexia, who had personal knowledge of the 15
student in question.' Accordingly, in 16
violation of Rowley, the District Court 17
impermissibly chose between the views of 18
conflicting experts on a controversial issue 19
of educational policy -- effective methods of 20
educating dyslexic students -- in direct 21
contradiction of the opinions of state 22
administrative officers who had heard the 23
same evidence. 24
Id. at 383 (citation omitted; second and third brackets in 25
original). We therefore decided that a district court must defer 26
to administrative determinations involving educational 27
methodology even where they address the question of whether the 28
state has provided the student with the basic floor of 29
opportunity that the Act requires. Id. 30

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54
In Gagliardo, we considered a district court's 1
conclusion that the school district's placement of a child in a 2
private school was inappropriate even though state administrative 3
officers had deemed it appropriate. Gagliardo, 489 F.3d at 106- 4
07. The district court had based its determination on one 5
expert's statement that the child needed a school setting that 6
was "therapeutic or supportive," even though that same expert had 7
later explained that the "thrust of his recommendation . . . was 8
that [the child] be placed in a school where trained 9
professionals could work closely with him and assist him as 10
issues associated with his disorder surfaced throughout the day." 11
Id. at 114 (emphasis omitted). We thought that reasoning to be 12
flawed. Id. Although the district court had addressed the 13
interpretation of the meaning of expert testimony, as opposed to 14
a dispute over methodology, we nonetheless concluded that the 15
district court owed the findings of the administrative hearing 16
officer deference. The officer had considered the testimony and 17
issued a decision that was "reasoned and supported by the 18
record." Id. It therefore should not have been disturbed by the 19
district court. Id. 20
The parties and amici urge us to articulate a bright- 21
line standard to be applied by district courts in reviewing state 22
administrative decisionmaking in IDEA cases. See, e.g., M.H., 23
Council of Parent Attys. & Advocates Amicus Br. 5 (suggesting 24

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55
that the court should "(1) review legal conclusions of 1
administrative decisions de novo without giving due weight to the 2
administrative decisions; (2) review mixed questions of law and 3
fact, such as whether the school district offered a FAPE, de novo 4
without giving due weight to the administrative decisions; (3) 5
give due weight to the factual findings of the administrative 6
decisions that are supported by the preponderance of the 7
evidence; and (4) defer to the educational policies recommended 8
by school officials if the court determine[s] that [the] school 9
district complied with the requirements of the Act"). Rowley and 10
subsequent decisions of this Court favor a different approach, 11
however. 12
Rowley left unresolved the question of the weight due 13
administrative determinations because that weight will vary based 14
on the type of determination at issue. Pursuant to statute, the 15
district court must base its decision on "the preponderance of 16
the evidence." 20 U.S.C. § 1415(i)(2)(C)(iii). This analysis is 17
complicated, though, by the fact that it occurs in the context of 18
a complex statutory scheme involving institutional actors at 19
different levels and within different branches of state and 20
federal government. 21
As the First Circuit has explained, the standard for 22
reviewing administrative determinations "requires a more critical 23
appraisal of the agency determination than clear-error 24

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56
review . . . but . . . nevertheless[] falls well short of 1
complete de novo review. . . . [I]n the course of th[is] 2
oversight, the persuasiveness of a particular administrative 3
finding, or the lack thereof, is likely to tell the tale." Lenn 4
v. Portland Sch. Comm., 998 F.2d 1083, 1086-87 (1st Cir. 1993) 5
(internal citations omitted). 6
We agree. In many determinations made by 7
administrative officers, the district court's analysis will hinge 8
on the kinds of considerations that normally determine whether 9
any particular judgment is persuasive, for example whether the 10
decision being reviewed is well-reasoned, and whether it was 11
based on substantially greater familiarity with the evidence and 12
the witnesses than the reviewing court. But the district court's 13
determination of the persuasiveness of an administrative finding 14
must also be colored by an accute awareness of institutional 15
competence and role. As the Supreme Court made clear in Rowley, 16
the purpose of the IDEA is to provide funding to states so that 17
they can provide a decent education for disabled students 18
consistent with their traditional role in educating their 19
residents. Rowley, 458 U.S. at 208 n.30; cf. Schaffer, 546 U.S. 20
at 53 ("The core of the statute. . . is the cooperative process 21
that it establishes between parents and schools."). In policing 22
the states' adjudication of IDEA matters, the courts are required 23

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57
to remain conscious of these considerations in determining the 1
weight due any particular administrative finding. 2
By way of illustration, determinations regarding the 3
substantive adequacy of an IEP should be afforded more weight 4
than determinations concerning whether the IEP was developed 5
according to the proper procedures. See Cerra, 427 F.3d at 195. 6
Decisions involving a dispute over an appropriate educational 7
methodology should be afforded more deference than determinations 8
concerning whether there have been objective indications of 9
progress. Compare Grim, 346 F.3d at 382-83, with Walczak, 142 10
F.3d at 130. Determinations grounded in thorough and logical 11
reasoning should be provided more deference than decisions that 12
are not. See id. at 129. And the district court should afford 13
more deference when its review is based entirely on the same 14
evidence as that before the SRO than when the district court has 15
before it additional evidence that was not considered by the 16
state agency. 17
II. Issues for Judicial Review 18
The "IDEA established a two-part inquiry for courts 19
reviewing [state] administrative determinations" under the IDEA. 20
Grim, 346 F.3d at 381. First, the court asks whether "the State 21
complied with the procedures set forth in the Act." Id. 22
Second, the court asks whether the IEP "developed through the 23
Act's procedures [is] reasonably calculated to enable the child 24

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58
to receive educational benefits." Id. (quoting Rowley, 458 U.S. 1
at 206-07). If an IEP is deficient -- either procedurally or 2
substantively -- the court then asks "whether the private 3
schooling obtained by the parents [for the child] is appropriate 4
to the child's needs." T.P., 554 F.3d at 252. In answering this 5
third question, "equitable considerations relating to the 6
reasonableness of the action taken by the parents are relevant." 7
Id. (alteration and internal quotation marks omitted). 8
A. Procedural Compliance 9
"The initial procedural inquiry is no mere formality." 10
Walczak, 142 F.3d at 129. It acts as "'a safeguard against 11
arbitrary or erroneous decisionmaking.'" Evans v. Bd. of Educ. 12
of Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 (S.D.N.Y. 13
1996) (quoting Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 14
1041 (5th Cir. 1989)). Of course, not every procedural error 15
will render an IEP legally inadequate. Grim, 346 F.3d at 381-82. 16
Relief is warranted only if the alleged procedural inadequacies 17
"(I) impeded the child's right to a [FAPE]; (II) significantly 18
impeded the parents' opportunity to participate in the 19
decisionmaking process regarding the provision of [a FAPE] to the 20
parents' child; or (III) caused a deprivation of educational 21
benefits," 20 U.S.C. § 1415(f)(3)(E)(ii). 22
Under the IDEA and its implementing regulations, an IEP 23
must contain: (1) the student's present levels of academic 24

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achievement and functional performance; (2) measurable annual 1
goals for the child; (3) the method used to measure the student's 2
progress toward those goals; (4) the special education and 3
related services that the IEP recommends; (5) an explanation of 4
the extent to which the student will be educated with 5
"nondisabled" peers; (6) the reasons for any alternate 6
assessments; and (7) the start date for recommended services, 7
their duration, and their frequency. 20 U.S.C. § 1414(d)(1)(A); 8
8 NYCRR tit. 8 § 200.4(d)(2). 9
Specifically with respect to the goals that must be 10
included in any IEP, the IDEA and its regulations require that 11
the IEP include short-term and long-term academic and non- 12
academic goals for each student, as well as evaluative procedures 13
for measuring a student's progress in achieving the short- and 14
long-term goals contained in the IEP. See 20 U.S.C. 15
§ 1414(d)(1)(A)(i)(III) (directing that IEP include "a 16
description of how the child's progress toward meeting the annual 17
goals . . . will be measured"); 34 C.F.R. § 300.320(a)(2)-(3); 18
NYCRR tit. 8, § 200.4(d)(2)(ii). 19
B. Substantive Compliance 20
The IDEA does not itself articulate any specific level 21
of educational benefits that must be provided through an IEP. 22
The "'appropriate' education" mandated by IDEA does not require 23
states to "maximize the potential of handicapped children." 24

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Rowley, 458 U.S. at 189-90, 196 n. 21. (quotation marks omitted). 1
The purpose of the Act was instead "more to open the door of 2
public education to handicapped children on appropriate terms 3
than to guarantee any particular level of education once inside." 4
Id. at 192; accord Walczak, 142 F.3d at 130; Lunceford v. Dist. 5
of Columbia Bd. of Educ., 745 F.2d 1577, 1583 (D.C. Cir. 1984) 6
(Ruth Bader Ginsburg, then-Judge)(because public "resources are 7
not infinite," federal law "does not secure the best education 8
money can buy; it calls upon government, more modestly, to 9
provide an appropriate education for each [disabled] child." 10
(emphasis omitted)). 11
C. Appropriateness of Alternative Placement 12
Parents who think that the state has failed to provide 13
their child with a FAPE as required under the IDEA, 20 U.S.C. 14
§ 1412(a)(1)(A), may pay for private services and seek 15
reimbursement from the school district for "'expenses that it 16
should have paid all along and would have borne in the first 17
instance had it developed a proper IEP.'" T.P., 554 F.3d at 252 18
(quoting Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 19
U.S. 359, 370-71 (1985)). 20
In making a claim for reimbursement, "the burden shifts 21
to the parents to demonstrate that the school in which they have 22
chosen to enroll their child is appropriate." Gagliardo, 489 23
F.3d at 112. The educational program at the alternative 24

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61
placement must be "reasonably calculated to enable the child to 1
receive educational benefit." Id. (quotation marks omitted). 2
However, "even where there is evidence of success [in the private 3
placement], courts should not disturb a state's denial of IDEA 4
reimbursement where . . . the chief benefits of the chosen school 5
are the kind of . . . advantages . . . that might be preferred by 6
parents of any child, disabled or not." Gagliardo, 489 F.3d at 7
115. Rather, the "unilateral private placement is only 8
appropriate if it provides education instruction specifically 9
designed to meet the unique needs of a handicapped child." Id. 10
(emphasis in original; quotation marks omitted). 11
III. Analysis of Claims in M.H. 12
A. Prefatory Observation 13
The district court in M.H. had before it the 14
conclusions of two different administrative officers, the IHO and 15
the SRO, who came to opposite conclusions as to the procedural 16
and substantive adequacy of the IEP at issue. In following 17
Grim's instruction as to the deference owed to such 18
administrative decisions by the court because of the 19
administrators' "expertise" in such matters, Grim, 346 F.3d at 20
382, the district court thus had available to it sharply 21
conflicting administrative views. As we will see, in reviewing 22
the SRO's decision, the court often relied on the carefully 23
articulated contrary observations, insights, and conclusions of 24

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the IHO. We think that to have been entirely proper. See A.C., 1
553 F.3d at 171. 2
Where the IHO and SRO disagree, reviewing courts are 3
not entitled to adopt the conclusions of either state reviewer 4
according to their own policy preferences or views of the 5
evidence; courts must defer to the reasoned conclusions of the 6
SRO as the final state administrative determination. However, 7
when (as here) the district court appropriately concludes that 8
the SRO's determinations are insufficiently reasoned to merit 9
that deference, and in particular where the SRO rejects a more 10
thorough and carefully considered decision of an IHO, it is 11
entirely appropriate for the court, having in its turn found the 12
SRO's conclusions unpersuasive even after appropriate deference 13
is paid, to consider the IHO's analysis, which is also informed 14
by greater educational expertise than that of judges, rather than 15
to rely exclusively on its own less informed educational 16
judgment. 17
B. Procedural Compliance 18
The district court in M.H. concluded that the IEP was 19
procedurally deficient in its formulation of goals for P.H. 20
because the "annual academic goals and objectives stated on 21
P.H.'s IEP are based on P.H.'s expected grade level and not on 22
his actual needs and abilities." M.H, 712 F. Supp. 2d. at 155. 23
In so concluding, the court deferred to the IHO's determination, 24

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but declined to defer to the SRO's findings to the contrary 1
because they were not, in the district court's opinion, "thorough 2
and careful." Id. at 162 (internal quotation marks omitted). 3
Although the IHO based her decision on both the annual academic 4
goals and the short-term non-academic objectives reflected by the 5
IEP, the SRO addressed only the annual academic goals. 6
The district court elaborated: 7
[t]he upshot of the IHO's determination is 8
that the short-term objectives were generic 9
because they were not modified to reflect the 10
change in the grade level on P.H.'s annual 11
goals. By reversing only on the basis that 12
the annual goals were not generic, the SRO 13
failed to consider the IHO's more important 14
finding that the short-term objectives were 15
generic. 16
Id. at 154. In the district court's view, "the substance of the 17
short-term objectives was necessarily central to the IHO's 18
decision" that the IEP was procedurally flawed. Id. 19
The district court also found wanting the IEP's short- 20
term objectives, the "vast majority" of which lack "measurement 21
statement[s]" by which evaluators could track P.H.'s progress. 22
Id. at 156. The court again declined to defer to the SRO, who 23
was satisfied with the short-term objectives, because "the SRO 24
failed to address the measurability of P.H.'s academic goals, 25
which formed the entire basis for the IHO's conclusion." Id. 26
(emphasis in original). The SRO based his conclusion instead on 27
"'a review of P.H.'s non-academic goals,' and 'goals and short- 28

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term objectives relating to P.H.'s social/emotional needs.'" Id. 1
at 156-57 (brackets omitted; emphases in original). The district 2
court concluded that the IHO's decision, which found the short- 3
term objectives to be deficient, rather than the SRO's, merited 4
deference because it was "reasoned and supported by the record." 5
Id. at 157 (quoting Gagliardo, 489 F.3d at 114). 6
The district court also adopted the IHO's conclusion -- 7
based on a specific factual finding -- that the non-academic 8
goals contained in the IEP were too advanced for P.H., declining 9
to defer to the SRO's "conclusory" reversal of the IHO on this 10
point. Id. at 158. The SRO had stated only that the goals 11
"'comprehensively addressed [P.H.'s] needs in'" the relevant 12
areas. Id. (quoting IHO report). 13
The district court rejected the plaintiffs' challenges 14
to the adequacy of the IEP's evaluative schedule for academic and 15
non-academic goals, and the evaluative criteria for P.H.'s short- 16
term objectives, concluding that the SRO's findings on these 17
points were "entitled to deference." Id. at 156. 18
The DOE argues that the IEP team "formulated 19
appropriate annual goals and objectives" for P.H., "along with 20
detailed short-term goals," and, further, that even if the goals 21
were not appropriate, they "could be reviewed and, if needed, 22
adjusted throughout the approaching school year." M.H. 23
Appellant's Br. 47. The DOE also points out that the IEP 24

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65
contained thirteen pages of annual goals and short term 1
objectives, contending that they were "reflective of [P.H.'s] 2
needs and thus would have provided appropriate benchmarks for 3
[him] in the 2007-2008 school year." Id. at 49. 4
The parents respond that the IEP's goals for P.H. were 5
not individualized because they were crafted with a rising first- 6
grader in mind; they were not changed when Ms. Jordan learned 7
that P.H. was in fact entering kindergarten. M.H. Appellee's Br. 8
14-15. The plaintiffs further argue that the district court was 9
not required to defer to the SRO because the SRO's conclusions 10
were "unsupported by the record as a whole and incorrect as a 11
matter of law . . . ." Id. at 39 (internal quotation marks 12
omitted). 13
The district court's decision to disagree with the SRO 14
was proper. This was not a situation in which the court credited 15
the conclusions that were most consistent with its own subjective 16
analysis. See, e.g., W.T. & K.T. ex rel. J.T. v. Bd. of Educ. of 17
The Sch. Dist of N.Y.C., 716 F. Supp. 2d 270, 289 (S.D.N.Y. 2010) 18
("In light of the uncontradicted testimony, . . . the SRO's 19
finding . . . is entitled to deference."); Connor ex rel. I.C. v. 20
N.Y.C. Dep't of Educ., No. 08-cv-7710-LBS, 2009 WL 3335760, at 21
*4, 2009 U.S. Dist. LEXIS 98605, at *14 (S.D.N.Y. Oct. 13, 2009) 22
(deferring to the SRO on a procedural issue where "nothing in the 23
record suggests any reason to diverge" from the SRO's 24

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determination). Rather, the court assessed whether the SRO's 1
conclusions were grounded in a "thorough and careful" analysis. 2
Walczak, 142 F.3d at 129. The court rejected them only when it 3
found that they were not supported by a preponderance of the 4
objective evidence. 5
With respect to the IEP goals not being individualized, 6
the IHO noted that CSE coordinator Giselle Jordan herself 7
testified that she wrote the goals with a rising first-grader in 8
mind and did not alter them once she learned P.H. should be 9
starting kindergarten. On the other hand, the SRO noted only 10
that P.H.'s Bracken Score (one of many evaluative tools) was 11
within the average range for his age, and therefore drew the 12
conclusion that any goals listed as appropriate to kindergartners 13
must have been appropriate for P.H. 14
The district court thought the SRO's conclusion to be 15
poorly reasoned. We agree. There does not appear to be any 16
doubt that kindergarten level goals were appropriate for P.H. To 17
be sure, when Ms. Jordan learned at the CSE meeting that P.H. was 18
entering kindergarten, she crossed out "1st grade" and changed it 19
to "kindergarten" for all of P.H.'s annual academic goals. The 20
question is whether, because Jordan did not also alter the short- 21
term objectives to make them appropriate for kindergarten instead 22
of first grade, the IEP's short-term academic objectives were 23
inappropriate. See, e.g., M.H. J.A. 1214 (annual goals and 24

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67
short-term objectives). The SRO ignored this issue despite the 1
fact that it was the linchpin of the IHO's conclusion that the 2
academic goals in the IEP were insufficiently individualized to 3
P.H. and did not accurately reflect his special education needs. 4
M.H., 712 F. Supp. 2d at 154. 5
The IHO's conclusions were further supported by 6
testimony from Nicklas that the short-term goals for P.H. were 7
unattainable. She pointed out, for example, that P.H. was 8
reading one word at a time, and that he would thus be unable to 9
meet short-term objectives such as "distinguish[ing] between fact 10
and fiction," "predict[ing] outcomes," and "identify[ing] the 11
effect of a certain action." M.H. J.A. 511. In light of the 12
IHO's thorough analysis on this point and the SRO's failure to 13
consider it, the district court did not err. 14
With regard to the measurability of the IEP's goals, 15
the SRO focused on non-academic ones including the "student's 16
needs in [occupational therapy, physical therapy], speech- 17
language therapy, social interaction, play, communication and 18
socialization, and adaptive physical education," concluding that 19
although the annual goals lacked specificity, the short-term 20
goals were sufficiently "detailed and measurable," and that they 21
"cured any deficiencies in the annual goals." Id. at 1374. The 22
SRO cited several of the short-term objectives in the IEP, which 23
contained either phrases like "teacher observation" to indicate 24

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68
how the observer is to measure P.H.'s progress. Id.; see also 1
id. at 1211-13 (pages from the IEP). As the district court 2
noted, however, the SRO ignored the fact that the "vast majority 3
of objectives in the IEP . . . do not contain any such 4
measurement statement." M.H., 712 F. Supp. 2d at 156; id. at 5
156-57 (stating that "only 17 of the IEP's 85 short-term 6
objectives contain an evaluation procedure, and, most 7
importantly, not one of the academic short-term objectives 8
mentions an evaluation procedure.") (emphasis added). 9
New York State regulations require an IEP to specify 10
"evaluative criteria, evaluation procedures and schedules to be 11
used to measure progress toward meeting the annual goal." NYCRR 12
tit. 8, § 200.4(d)(2)(iii)(b). Any short-term objective must 13
also be "measurable." Id. at § 200.4(d)(2)(c)(iv). 14
We agree with the district court's decision not to 15
defer to the SRO's determination that the IEP provided sufficient 16
evaluation procedures for the IEP's goals and objectives. The 17
SRO failed to consider P.H.'s short-term academic objectives at 18
all beyond a conclusory view that all of the "79 short-term 19
objectives" addressed the "student's needs" and that the 20
"majority of the . . . short-term objectives were both detailed 21
and measurable," M.H. J.A. 1374 (emphasis added). He only 22
provided a detailed analysis of the "short-term objectives 23
relating to the student's social/emotional needs." Id. And 24

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although the SRO stated that many of the short-term non-academic 1
goals "could be observed and measured," in reviewing the more 2
than eighty short-term objectives referred to in the IEP, only 3
fifteen expressly referred to "teacher observation" as an 4
evaluation procedure. None of the academic short-term objectives 5
had any express evaluation procedure. 6
We also agree with the district court's decision to 7
rely on the IHO's conclusion that the non-academic goals were not 8
suited to P.H.'s needs and that some were too advanced for P.H. 9
That decision is supported by the evidence in the record, 10
including the testimony of Dr. Nicklas and M.H. The SRO, on the 11
other hand, did no more than state summarily that the goals 12
"comprehensively addressed the student's needs in th[e] areas." 13
M.H. J.A. 1374. The SRO failed to point to contrary evidence 14
that he deemed more compelling. Had he done so, the district 15
court might have properly deferred to the SRO's analysis of the 16
IEP's goals and objectives. But the SRO's conclusory statement 17
does not evince thorough and well-reasoned analysis that would 18
require deference. 19
We therefore affirm the district court's conclusion 20
that the IEP did not comply with the procedural requirements of 21
the IDEA and that P.H. was denied a FAPE as a result. 22

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C. Substantive Adequacy 1
1. Methodology Evidence 2
The IEP's substantive compliance with the IDEA depends 3
on a threshold issue upon which the IHO and the SRO disagreed: 4
whether the reviewing officers could consider the evidence 5
related to the various methodologies for teaching autistic 6
children, including ABA and TEACCH. A parent of a disabled child 7
initiates the impartial review process by filing a notice 8
including "complaint[s] . . . with respect to any matter relating 9
to the identification, evaluation, or educational placement of 10
the child, or the provision of a [FAPE] to such child." 20 11
U.S.C. § 1415(b)(6)(A). The IDEA provides that "[t]he party 12
requesting the due process hearing shall not be allowed to raise 13
issues at the due process hearing that were not raised in the 14
notice . . . unless the other party agrees otherwise." 20 U.S.C. 15
§ 1415(f)(3)(B). 16
The plaintiffs do not dispute that they did not raise 17
the issue of teaching methodologies in the impartial hearing 18
request. However, the IHO did consider the question in issuing 19
her opinion. And much of the testimony presented by both parties 20
to the IHO related to the question of whether ABA or TEACCH was 21
better for P.H. The SRO determined that the IHO should not have 22
considered the issue, because the plaintiffs had waived it by 23
omitting the discussion from their hearing request. M.H. J.A. 24

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1372-73 ("[T]he impartial hearing officer exceeded her 1
jurisdiction in making a determination which was not properly 2
before her."). 3
The district court disagreed. M.H., 712 F. Supp. 2d at 4
151-52. The court noted that at the hearing before the IHO, it 5
was the DOE that introduced the issue of methodology -- first in 6
its opening statement, and then in the questioning of its first 7
witness, Ms. Jordan. Id. at 149. The court therefore decided 8
that the plaintiffs could not "fairly be barred from rebutting 9
[the DOE's] testimony with evidence of the appropriateness of 10
[the] methodologies, and the DOE [could not] genuinely claim that 11
it was prejudiced by the IHO's consideration of such evidence." 12
Id. at 150. 13
The DOE appeals from the district court's conclusion on 14
this point, arguing that the concept of "opening the door," upon 15
which the district court relied, is inapplicable in the context 16
of IDEA due process hearings. It submits that the concept 17
"should not be confused with a jurisdictional limitation, or with 18
a statutory requirement for the consent of the opposing party." 19
M.H. Appellant's Br. 57. The DOE further contends that it did no 20
more than "[s]ubmit[] evidence that [was] relevant to an issue 21
properly before the hearing officer," viz., the appropriateness 22
of the IEP's recommended placement. Id. at 56. The DOE contends 23
that it never agreed to submit the "different issue" of whether 24

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only the ABA methodology was appropriate for P.H. to the IHO. 1
Id. (emphasis in original). The DOE suggests that it should have 2
been able to elicit evidence regarding the teaching methodologies 3
because such evidence was relevant to demonstrating that the 4
6:1:1 placement provided to P.H. was appropriate to his needs, 5
but that the parents should not have been able to submit their 6
own evidence that only ABA instruction would be effective for 7
P.H. 8
We agree with the district court and the parents that 9
it would be unfair to permit the DOE to argue that its 10
recommended placement for P.H. was appropriate because it offered 11
"various teaching methods," and that the parents' placement was 12
inappropriate because it "offers [only] one type of intervention, 13
. . . which is [ABA]," M.H. J.A. 27-29, but then to bar the 14
parents from contending that the schooling offered in the IEP was 15
inappropriate for P.H. precisely because it offered "various" 16
methodologies, most of which would not work for their son. 17
In other words, it does not follow from the fact that 18
the DOE bears the burden of demonstrating that the IEP provides a 19
FAPE that it should be permitted to argue issues outside the 20
scope of the due process complaint without "opening the door" for 21
the plaintiffs. The parents, in their complaint letter, 22
challenged the substantive sufficiency of the IEP offered to 23
their son. The DOE chose to respond by arguing that the IEP's 24

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placement was better in part because it utilized multiple 1
methodologies. In these circumstances, the statute does not bar 2
the parents from contesting the appropriateness of the 3
methodologies offered in the IEP's recommended program. 4
2. The Substance of the IEP 5
The SRO and IHO disagreed on the substantive 6
sufficiency of the IEP. The IHO concluded that the IEP failed to 7
provide a FAPE because the IEP recommended very little ABA 8
therapy, which had been shown by testimony at the hearing to be 9
"imperative. . . to prevent [P.H.'s] regression." M.H. J.A. 10
1357. After excluding the parents' methodology evidence, the SRO 11
reversed the IHO, concluding that the 6:1:1 program "was 12
appropriate to meet the needs of [P.H.]." M.H. J.A. 1375. But 13
the SRO compared the IEP-recommended program only to general 14
education; he did not explain why it was more appropriate than 15
either 12:1:1 instruction, which the DOE offers, or 1:1 16
instruction. 17
The district court again declined to defer to the SRO. 18
The court observed that although the SRO excluded the parents' 19
methodology evidence, which, in the district court's words, 20
"tended to show that P.H. required a methodology employing a 1:1 21
student-teacher ratio," M.H., 712 F. Supp. 2d at 161, the SRO had 22
considered "the DOE's methodology evidence tending to show that 23
the methodologies available within a 6:1:1 program were 24

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affirmatively appropriate for P.H.," id. The court then stated 1
that the IHO had considered "not only the same evidence that the 2
SRO considered but also the substantial amount of methodology 3
evidence introduced by Plaintiffs." Id. The court deferred to 4
the IHO, not the SRO, "find[ing] no reason to disagree with her 5
decision, particularly because she considered all the evidence 6
presented to her and because the weights she assigned to 7
conflicting evidence were undoubtedly influenced by her 8
educational expertise." Id. (citing Grim, 346 F.3d at 382). The 9
court concluded by opining that "[t]he SRO's decision would have 10
merited such deference had it included consideration of all the 11
evidence in the record." Id. 12
The DOE contends that "even if the methodology 13
allegation had been properly presented in the complaint letter, 14
the IHO should not have considered it," because "decisions 15
regarding the best methodology to utilize in teaching special 16
education students . . . should be made by teachers, not by the 17
courts." M.H. Appellant's Br. 59 (citing Rowley, 458 U.S. at 18
207, 210). According to the DOE, administrative officers and 19
courts are limited to deciding the issue of "whether the 20
placement provided the student an appropriate FAPE, not whether 21
the methodology offered in the school the parents preferred was 22
superior to that offered in the public school." Id. at 59-60. 23

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The parents reply that the DOE mistakenly "attempts to 1
separate the method of instruction from the appropriateness of 2
that instruction." M.H. Appellee's Br. 35. They argue that the 3
IDEA "expressly permits courts to consider the 'content, 4
methodology, [and] delivery of instruction['] to determine 5
whether a FAPE has been offered to a child with special needs," 6
id. at 38 (quoting 34 C.F.R. § 300.39(a)(1), although the quoted 7
text is in § 300.39(b)(3), as part of the definition of 8
"specially designed instruction") (alterations in original). The 9
parents also contend that the 6:1:1 program recommended in the 10
IEP was not appropriate for P.H. both because even though it was 11
within a mainstream school building, it actually provided fewer 12
opportunities to interact with mainstream peers than BAC (even as 13
an institution specializing in educating children with autism), 14
and because the testimony and reports by all of P.H.'s treating 15
doctors and by his SEIT indicated that he could not learn 16
successfully in a 6:1:1 environment. 17
We agree with the district court that the SRO's 18
decision, which took only the DOE's evidence into account, does 19
not warrant deference in this regard. The IHO's discussion of 20
the substantive adequacy of the IEP, while brief, clearly 21
explained that the IHO concluded that the key failing of the IEP 22
was its failure to account for Dr. Salsberg's report -- dated two 23
months before the relevant hearing of the CSE -- that P.H. 24

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required intensive 1:1 instruction. Although courts should 1
generally defer to the state administrative hearing officers 2
concerning matters of methodology, the SRO's failure to consider 3
any of the evidence regarding the ABA methodology and its 4
propriety for P.H. is more than an error in the analysis of 5
proper educational methodology. It is a failure to consider 6
highly significant evidence in the record. This is precisely the 7
type of determination to which courts need not defer, 8
particularly when the evidence has been carefully considered and 9
found persuasive by an IHO. 10
D. Appropriateness of the Unilateral Placement 11
Once it is determined that the program offered by an 12
IEP will not "enable the child to receive educational benefits," 13
Cerra, 427 F.3d at 192 (quotation marks omitted), the burden 14
shifts to the parents to demonstrate that the school in which 15
they have chosen to enroll their child is appropriate. 16
Gagliardo, 489 F.3d at 112. Although their unilateral placement 17
need not "meet the IDEA definition of a [FAPE]," Frank G., 459 18
F.3d at 364, as would a program provided by the public school 19
system, it must be "reasonably calculated to enable the child to 20
receive educational benefits," id. (quotation marks omitted). 21
However, "even where there is evidence of success [in the private 22
placement], courts should not disturb a state's denial of IDEA 23
reimbursement where . . . the chief benefits of the chosen school 24

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are the kind of . . . advantages . . . that might be preferred by 1
parents of any child, disabled or not." Gagliardo, 489 F.3d at 2
115. Rather, the "unilateral private placement is only 3
appropriate if it provides education instruction specifically 4
designed to meet the unique needs of a handicapped child." Id. 5
(emphasis in original; quotation marks omitted). 6
In this case, the SRO did not reach the question of the 7
appropriateness of BAC as a private placement for P.H. M.H. J.A. 8
1376. The district court therefore deferred to the IHO, whose 9
conclusions the court found to be "well reasoned and supported by 10
the evidence." M.H., 712 F. Supp. 2d at 165. The IHO was 11
satisfied that the parents had shown that BAC met P.H.'s needs. 12
She relied on, inter alia, the testimony of BAC director Nicklas 13
and on the data provided by BAC documenting P.H.'s progress. In 14
confirming the IHO's opinion, the district court also rejected 15
the DOE's three reasons for deciding that BAC "should be 16
considered inappropriate for P.H." M.H., 712 F. Supp. 2d at 164. 17
First, the DOE argued that the BAC records showed that 18
"BAC was not actually addressing P.H.'s deficits," specifically 19
his handwriting and gross-motor-skills lessons. Id. The 20
district court noted that Nicklas's and Jordan's testimony 21
contradicted each other on this point, and that it was for the 22
IHO to weigh the credibility of each expert's testimony. Id. 23

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78
Second, the DOE argued that BAC was too restrictive 1
because P.H. was not educated with mainstream peers. Id. at 165 2
(citing, inter alia, P. ex rel. Mr. & Mrs. P. v. Newington Bd. of 3
Educ. (Newington), 546 F.3d 111, 120 (2d Cir. 2008)). Under the 4
Newington test, when evaluating whether a student's placement is 5
the least restrictive environment possible, as required by the 6
IDEA, "a court should consider, first, whether education in the 7
regular classroom, with the use of supplemental aids and 8
services, can be achieved satisfactorily . . . , and, if not, 9
then whether the school has mainstreamed the child to the maximum 10
extent appropriate." Newington, 546 F.3d at 120 (quotation marks 11
omitted). The district court noted that the parties agreed that 12
P.H. "would not have benefi[t]ted from placement in a regular 13
classroom." M.H., 712 F. Supp. 2d at 165. Citing the IHO's 14
"well reasoned" conclusion that "discrete-trial ABA was the 15
appropriate methodology for educating P.H.," the court deferred 16
to the IHO's finding that BAC was not too restrictive for P.H. 17
Id. 18
Third, the district court rejected the DOE's argument 19
that BAC was inappropriate because the school did not provide 20
related services on-site, relying upon the IHO's conclusion to 21
that effect and upon the fact that "parents are entitled to more 22
flexibility in their choice of placement than [is] the DOE." Id. 23

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79
at 166. The court also noted that the IHO had considered and 1
rejected precisely the same argument. Id. 2
The DOE contends again on appeal that the parents 3
failed to establish that BAC was appropriate. Specifically, it 4
reasserts that BAC did not provide related services to P.H. 5
during the school day, and that the IHO ignored this factor in 6
finding the school appropriate. M.H. Appellant's Br. 64-65. The 7
DOE argues that in order to be appropriate, a private placement 8
must provide "an educational program and the necessary support 9
services to appropriately meet [P.H.'s] special education needs." 10
Id. at 65 (citing, inter alia, Frank G., 459 F.3d at 364-65). 11
The DOE further contends that the BAC program was more 12
restrictive than necessary, and that P.H. would have had more 13
opportunities to interact with mainstream peers at P.S. 94. Id. 14
at 67-68. 15
The parents concede that BAC does not offer related 16
services during the school day, but argue that the placement 17
nevertheless was appropriate because BAC met P.H.'s educational 18
needs and gave him more access to mainstream peers than P.S. 94 19
would have. Further, they say, P.H. would have received related 20
services "at a separate location," even under the IEP's 21
recommended program, rendering BAC's alleged shortcoming 22
immaterial. M.H. Appellee's Br. 49-52. With regard to related 23
services, the parents contend that BAC offered all of the 24

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80
services P.H. needed to receive educational benefits, and his 1
related services could be "provided at any time of day." Id. at 2
51. The plaintiffs also argue that in any event, the IHO's 3
opinion on this issue warranted deference, and that the DOE's 4
argument to the contrary asks the court to "[a]ssign[] new 5
weight[] to the evidence" that the IHO already reviewed, which is 6
"precisely what a court avoids when it conducts a modified de 7
novo review . . . ." Id. at 54 (internal quotation marks 8
omitted). 9
In Gagliardo, we concluded that the parents' unilateral 10
placement was inappropriate because the chosen school "did not 11
provide the special education services specifically needed" by 12
the student -- that is, the "therapeutic setting" the student 13
required to "reasonably assure that he would receive educational 14
benefits as required by Rowley." Gagliardo, 489 F.3d at 113, 15
114. Here, it appears that although the related services do to 16
some extent enhance P.H.'s learning ability, there is nothing in 17
the record to suggest that it is necessary that they be provided 18
during the school day in order for P.H. to receive appropriate 19
benefit from them. 20
The DOE also cites Green v. N.Y.C. Dep't of Educ., No. 21
07 Civ. 1259 (PKC), 2008 WL 919609, 2008 U.S. Dist. LEXIS 32118 22
(S.D.N.Y. Mar. 31, 2008), in which the district court affirmed 23
the IHO's and SRO's conclusion that the unilateral placement was 24

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81
not appropriate. Id. at *8, 2008 U.S. Dist. LEXIS 32118, at *23. 1
In reaching that conclusion, the Green court noted that "[i]t is 2
appropriate for the hearing officers and the Court" to take into 3
consideration the fact that the parents obtained necessary 4
services not offered through the selected school from an outside 5
agency. Id. at *7, 2008 U.S. Dist. LEXIS 32118 at *19. This may 6
indeed be an appropriate consideration, but it is not necessarily 7
dispositive. Here, the absence of related services at BAC does 8
not require a finding that BAC was inappropriate. 9
With regard to mainstreaming opportunities for P.H., 10
the record suggests that they were not abundant at the 11
alternative placement, P.S. 94. Indeed, P.H. likely would have 12
had more exposure to and interaction with mainstream peers at 13
BAC. The DOE argues that opportunities for mainstreaming would 14
be greater at P.S. 94, because the special education placement 15
there shares a building with a mainstream public school. 16
However, as we have noted, according to P.H.'s father, M.H., the 17
P.S. 94 teacher, Oliva Cebrian, told him that the mainstream 18
children who share the P.S. 15 building with P.S. 94 students are 19
"not particularly welcoming to the special ed[ucation] kids." 20
M.H. J.A. 729. As a result, the special education children use a 21
separate entrance to the school, eat in a separate cafeteria, and 22
do not share academic classes. Id. By contrast, although P.H. 23
participated in a special education-only class at BAC, the 24

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82
facility is also located within a mainstream school, and P.H. 1
participated in two non-academic classes with mainstream 2
children. Unlike the situation at P.S. 94, the BAC students also 3
share a school entrance, hallways, and playtime with non-disabled 4
peers. 5
In light of this unrebutted evidence, the district 6
court properly agreed with the IHO's conclusion that BAC was an 7
appropriate unilateral placement for P.H. 8
E. Equitable Considerations 9
Finally, both administrative review officers and courts 10
are required to evaluate the equities in considering a tuition 11
reimbursement claim. Florence County Sch. Dist. Four v. Carter 12
ex rel. Carter, 510 U.S. 7, 12 (1993). In this case, the SRO did 13
not reach the issue, although the IHO had done so. The IHO found 14
"that equitable considerations support tuition reimbursement." 15
Id. 1357. The IHO noted that "the parents have cooperated with 16
the CSE. They provided private evaluations, participated in the 17
IEP meeting, visited the proposed placement and provided timely 18
notice of their intent to place the student in a private school." 19
Id. The district court agreed. It also identified "other 20
evidence in the record" that supports the IHO's conclusion, M.H., 21
712 F. Supp. 2d at 167, including that "the DOE was less than 22
forthcoming about the nature of P.H.'s recommended placement," 23
id., that the plaintiffs were not provided the opportunity to 24

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12 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.
83
meaningfully participate in the CSE meeting, id., and that the 1
DOE subsequently "consistently stonewalled M.H.'s inquiries into 2
the appropriateness" of the school, id. at 168. The DOE does not 3
appear to contest the district court's or IHO's evaluation of 4
this evidence on appeal. 12 We agree with the district court's 5
analysis on this point. 6
IV. Analysis of Claims in M.S. 7
The plaintiffs in M.S. contest both the procedural and 8
the substantive adequacy of their son's IEP. Central to their 9
argument is the assertion that the magistrate judge overstated 10
the degree to which he was required to defer to the decisions of 11
the administrative hearing officers. Although we agree that the 12
magistrate judge was too deferential to the State's adjudication 13
process, we think that application of the proper standard of 14
review requires the same outcome. 15
A. Procedural Compliance 16
The parents asserted before the district court that the 17
"development of the IEP was procedurally deficient [first] 18

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13 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.
84
because the parent waived the inclusion of a parent member in the 1
CSE under duress, and the absence of such a participant in the 2
meeting denied the plaintiffs active participation in the 3
development of the IEP." Id. (internal quotation marks omitted). 4
The district court adopted the magistrate judge's recommendation 5
that it accept the IHO's and SRO's conclusion that even if D.S.'s 6
parent waived the presence of a parent member at the CSE meeting 7
under less than ideal circumstances, the "parent still 8
participated in the development of the IEP." Because of that 9
participation, the magistrate judge concluded, any violation did 10
not "rise to a denial of [a] FAPE." Id. (internal quotation marks 11
omitted). The magistrate judge noted that "courts have upheld 12
parents' waivers of the participation of a parent member under 13
similar circumstances," and recommended that the court do so in 14
this case, too. Id. at 45. The magistrate judge did not suggest 15
that this recommendation was influenced by his understanding of 16
the deference required by Grim and this Court's other related 17
decisions. The district court adopted this reasoning. 13
18
The parents offer no evidence of duress other than 19
their own testimony, id., which the IHO heard and found 20

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14 The SRO did not specifically address the issue.
85
unpersuasive on this point, id. at 44. 14 Without any other 1
evidence in the record to the contrary, the Court must defer to 2
the IHO and SRO's findings, which were grounded in credibility 3
determinations made by the IHO after hearing the relevant 4
testimony. 5
Second, the parents contend the DOE violated the IDEA's 6
requirement that an IEP include measurable goals that are 7
appropriate for the child's development by photocopying goals 8
from a prior IEP. The parents assert that it is impossible for 9
the CSE team to have reviewed all of the photocopied goals in 10
light of the shortness of the meeting and especially Pearl's late 11
arrival. Only 25 to 30 minutes were left for the CSE to review 12
seventeen pages of goals and "discuss[] and intentionally 13
preserve[]" each one. M.S. Appellants' Br. 49. The DOE contends 14
to the contrary that the photocopy was, as the IHO found, 15
"'insignificant,'" "especially given that the 'record was replete 16
with testimony as to D.S.'s very slow learning style,' which 17
would render past information, particularly information that was 18
gathered only a few months prior to the CSE, still very 19
accurate." M.S. Appellee's Br. at 43 (brackets omitted). 20
The IDEA requires that an IEP be "updated annually," 20 21
U.S.C. § 1414(d)(1)(A)(i)(VIII), and revised "as appropriate," 20 22

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86
U.S.C. § 1414(d)(4)(A)(ii), see also Schroll v. Bd. of Educ. 1
Champaign Cmty. Unit. Sch. Dist. #4, No. 06-2200-DGB, 2007 WL 2
2681207, at *4-*5, 2007 U.S. Dist. LEXIS 62478, at *12 (C.D. Ill. 3
Aug. 10, 2007) ("An IEP is not inappropriate simply because it 4
does not change significantly on an annual basis[, but] . . . if 5
the student made no progress under a particular IEP in a 6
particular year, . . . the propriety of an identical IEP in the 7
next year may be questionable."). 8
We agree with the magistrate judge that the 9
photocopying of the goals was "disturbing." R&R at 49. But the 10
IHO's determination that the photocopy remained sufficient for 11
purposes of arriving at D.S.'s IEP appears to have been based in 12
part on the DOE's witnesses who explained that the goals, 13
although a year old, nonetheless remained appropriate for the 14
child. Dr. Bowser testified that D.S.'s general academic goals 15
had been discussed at the CSE meeting, and that at least one goal 16
was revised after the CSE meeting, when it became clear that 17
"there was one goal that was either unclear or he had met." M.S. 18
J.A. 151. Bowser also testified that some of the goals were 19
photocopied from D.S.'s last CPSE (that is, his pre-school CSE) 20
meeting, which had taken place only a few months prior to the CSE 21
meeting. In light of that testimony and without more evidence 22
that the photocopied goals were no longer appropriate for D.S., 23
we agree with the district court's deference to the IHO, who had 24

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87
the benefit of hearing and weighing witness testimony on the 1
issue. 2
The plaintiffs' contention that they were not afforded 3
the opportunity adequately to participate in the CSE meeting also 4
fails. At the meeting, D.S.'s parents discussed D.S.'s ability 5
to learn effectively in a 6:1:1 classroom setting. They provided 6
the CSE with additional private evaluations of D.S. As the IHO 7
rightly observed, these reports were noted on the IEP checklist, 8
which indicated that they had been reviewed. But even assuming 9
to the contrary that the school district failed to review these 10
outside reports, we disagree with the appellants' contention that 11
D.S.'s IEP therefore failed to reflect his then-current needs. 12
The record evidence demonstrates that D.S.'s IEP incorporated 13
performance reports that were more recent than those submitted by 14
the appellants at the CSE meeting. 15
Finally, the appellants suggest that the school 16
district predetermined D.S.'s placement in a 6:1:1 classroom. We 17
disagree. In Deal ex rel. Deal v. Hamilton County Bd. of Educ., 18
392 F.3d 840 (6th Cir. 2004), cert. denied, 546 U.S. 936 (2005), 19
the Sixth Circuit held that the plaintiffs were denied meaningful 20
participation in the IEP process because the school district 21
"never even treated a one-on-one ABA program as a viable option." 22
Id. at 858. In T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. 23
Dist., 554 F.3d 247 (2d Cir. 2009), we expressly distinguished 24

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88
Deal. We observed that "the school district [in Deal] had 1
consistently rejected parent requests for intensive ABA and told 2
the parents that 'the powers that be' were not implementing such 3
programs." Id. at 253 (quoting Deal, 392 F.3d at 855-56). Here, 4
the only evidence indicating that such a policy was in place was 5
Bowser's testimony that as far as she knew, only 6:1:1 programs 6
were provided by the district. This testimony is a far cry from 7
the evidence that troubled the court in Deal. In light of the 8
district's broad discretion to adopt programs that, in its 9
educational judgment, are most pedagogically effective, we cannot 10
simply assume that the decision to rely heavily on a single 11
method or style of instruction is necessarily inappropriate. 12
Bowser's testimony does not tend to establish that the district 13
would not consider a 1:1 placement in an appropriate case. 14
Absent such evidence, the only issue here is whether the 15
district's proposed placement was insufficient to provide a FAPE 16
to D.S. 17
B. Substantive Adequacy 18
The plaintiffs also challenge the IEP's substantive 19
adequacy because, they argue, the IHO ignored evidence 20
demonstrating that the IEP was not individualized to meet D.S.'s 21
needs and thus failed to consider the record as a whole. The 22
record as a whole, they say, showed that D.S. required ABA 1:1 23
therapy to progress. 24

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89
As the IHO acknowledged, Dr. Bowser testified that she 1
chose the 6:1:1 program for D.S. instead of the ABA program 2
because it would provide careful supervision while addressing the 3
needs and deficiencies that were outlined in his IEP. Dr. Bowser 4
recognized that D.S. was a non-verbal child with significant 5
deficiencies, including low intellectual functioning, and 6
difficulties with social interactions. She also stated that the 7
team that formed D.S.'s IEP chose the 6:1:1 classroom program 8
with these deficiencies in mind. Alex Campbell, the special 9
education teacher in charge of the 6:1:1 class to which the IEP 10
had assigned D.S., also reviewed D.S.'s IEP and testified that 11
she had worked with students with similar deficiencies during the 12
2007-08 school year, and that those students had progressed 13
toward their IEP goals. 14
The proposed 6:1:1 classroom, moreover, provided a 15
transition program for students who had only had ABA therapy. 16
Susan Cruz, the assistant principal at P.S. 15, testified that a 17
student such as D.S. would transition to a setting with multiple 18
methodologies through a program targeted toward his specific 19
needs and experiences with ABA. 20
The IHO credited this testimony. She concluded that 21
the district had provided evidence of the "specifics as to the 22
appropriateness of [D.S.'s] recommended program and described how 23
he would have met his IEP goals and met the standard of achieving 24

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90
educational benefits from the program." M.S. S.P.A. 80. 1
Further, the IHO credited Bowser's testimony that the CSE "wanted 2
[D.S.] to be in the classroom as much as possible and by having 3
the therapy within the school setting it would give the therapist 4
a chance to interact with the classroom teacher and transfer the 5
skills into the classroom setting." M.S. S.P.A. 79. 6
The magistrate judge disagreed with the IHO's 7
assessment, stating that "[t]he only people . . . who had met and 8
evaluated [D.S.] insisted that he required 1:1 ABA." R&R at 54. 9
However, the magistrate judge felt "constrained to defer to the 10
determination of the IHO and SRO," even on a question that he 11
thought called for the simple application of "typical judicial 12
experience," namely, whether the "IHO and SRO properly grappled 13
with the evidence before them." Id. at 55. 14
We need not consider the magistrate judge's expressed 15
views in this regard. The IHO's determination was based on his 16
assessment of the credibility of the witnesses testifying before 17
him, and his own understanding of educational methodology. See 18
Grim, 346 F.3d at 383. It was entitled to deference on that 19
basis. 20
The IHO was presented with conflicting evidence on the 21
question of methodology: Some witnesses testified that D.S. 22
would thrive in a 6:1:1 program utilizing methodologies other 23
than ABA. Others, including DOE evaluator Marion Pearl, 24

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91
expressed the view that D.S. required 1:1 ABA therapy on a full- 1
time basis. The IHO appears to have given greater credence to 2
the witnesses who had not met D.S. because, in the IHO's view, 3
the witnesses who testified for D.S. did not approach the 4
possibility of his enrollment in a non-ABA program with an open 5
mind. While the court may have had doubts about the IHO's 6
credibility assessment, it did not have further evidence on the 7
basis of which to challenge this determination. And this 8
conclusion is further buttressed by the fact that the IHO's 9
determination concerned the substantive adequacy of the IEP, a 10
question requiring expertise on education of autistic children 11
and to which courts therefore should usually defer to 12
administrative decisionmakers. See Rowley, 458 U.S. at 208. 13
We would be remiss if we did not note that we deeply 14
respect and sympathize with M.S. and L.S.'s efforts on behalf of 15
their son and their desire to obtain the best possible treatment 16
for him under trying circumstances. But it has not been 17
established by a preponderance of the evidence that the IEP 18
offered to D.S. by the State was inappropriate -- that is, that 19
D.S. was denied a FAPE. 20
Because we conclude that D.S.'s IEP was procedurally 21
and substantively adequate, we need not consider whether his 22
private placement was appropriate. 23

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92
CONCLUSION 1
For the foregoing reasons each of the judgments of the 2
district courts in these cases consolidated for purposes of 3
appeal is affirmed. 4

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1 1
APPENDIX 1
Glossary of Acronyms 2
ABA Applied Behavior Analysis 3
BAC Brooklyn Autism Center 4
CPSE Department of Education's Committee on Preschool 5
Special Education 6
CSE Local Committee on Special Education 7
DOE New York City Department of Education 8
D.S. Son of plaintiffs M.S. and L.S. 9
E.I. New York's Early Intervention program 10
11
E.K. Plaintiff, mother of P.H. 12
FAPE Free Appropriate Public Education 13
FBA Functional Behavioral Assessment 14
IDEA Individuals with Disabilities Education Act, 20 15
U.S.C. § 1400 et seq. 16
IEP Individualized Education Program 17
IHO District's Impartial Hearing Officer 18
L.S. Plaintiff, mother of D.S. 19
20
M.H. Plaintiff, father of P.H. 21
M.H. J.A. M.H. Joint Appendix 22
M.S. Plaintiff, father of D.S. 23
M.S. J.A. M.S. Joint Appendix 24
M.S. S.P.A. M.S. Special Appendix 25
NYCRR N.Y. Comp. Codes R. & Regs. 26

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2 2
PDD-NOS Pervasive Developmental Disorder Not Otherwise 1
Specified 2
PECS Picture Exchange Communication System 3
P.H. Son of plaintiffs M.H. and E.K. 4
5
R&R Report and Recommendation of the magistrate judge 6
in D.S. 7
SEIT Special Education Itinerant Teacher 8
SRO State Review Officer 9
TEACCH Treatment and Education of Autistic and Related 10
Communication-Handicapped Children, a method for 11
teaching people with autism. 12

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