1 11-1266, 11-1474, 11-655 R.e., M.e. v. NYC Dep’t of Education 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4…

1
11-1266, 11-1474, 11-655
R.E., M.E., et al v. NYC Dep’t of Education
1
UNITED STATES COURT OF APPEALS 2
FOR THE SECOND CIRCUIT 3
4
August Term 2011 5
(Argued: April 24, 2012 Decided: September 20, 2012) 6
Docket Nos. 11-1266-cv, 11-1474-cv, 11-655-cv 7
-----------------------------------------------------x 8
9
R.E., Individually, on behalf of J.E., M.E, 10
Individually, on behalf of J.E., 11
12
Plaintiffs-Appellees, 13
14
-- v. -- 15
16
New York City Department of Education, 17
18
Defendant-Appellant. 19
20
-----------------------------------------------------x 21
22
R.K., by her parents R.K. and S.L., 23
24
Plaintiff-Appellee, 25
26
-- v. -- 27
28
New York City Department of Education, 29
30
Defendant-Appellant. 31
32
-----------------------------------------------------x 33
34
E.Z.-L., by her parents R.L. and A.Z., 35
36
Plaintiff-Counter-Defendant-Appellant, 37
38
-- v. -- 39

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2
1
New York City Department of Education, 2
3
Defendant-Counter-Claimant-Appellee. 4
5
6
-----------------------------------------------------x 7
8
B e f o r e : WINTER, WALKER, and CABRANES, Circuit Judges. 9
Defendant New York City Department of Education (“the 10
Department”) appeals from an order of the United States District 11
Court for the Southern District of New York (Robert W. Sweet, 12
Judge) granting summary judgment to R.E. and M.E. on their claim 13
for tuition reimbursement under the Individuals with Disabilities 14
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and a separate 15
order of the District Court for the Eastern District of New York 16
(Kiyo A. Matsumoto, Judge) granting summary judgment to R.K. on 17
her claim for tuition reimbursement under the IDEA. Plaintiff- 18
counter-defendant E.Z.-L. appeals from an order of the Southern 19
District of New York (Sidney H. Stein, Judge) denying her claim 20
for tuition reimbursement under the IDEA. These appeals were 21
heard in tandem due to common questions of law. In resolving a 22
central question presented by these appeals, we hold that courts 23
must evaluate the adequacy of an IEP prospectively as of the time 24
of the parents’ placement decision and may not consider 25
“retrospective” testimony regarding services not listed in the 26
IEP. However, we reject a rigid “four-corners rule” that would 27

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prevent a court from considering evidence explicating the written 1
terms of the IEP. 2
In light of this holding and for further reasons we 3
elaborate, we reach the following conclusions in the three 4
appeals. In R.E., no. 11-1266-cv, we find that the Department 5
offered the student a free and appropriate public education 6
(“FAPE”) and REVERSE the decision of the district court. In 7
R.K., no. 11-1474-cv, we find that the Department failed to offer 8
the student a FAPE and AFFIRM the decision of the district court. 9
In E.Z.-L., no. 11-655-cv, we find that the Department offered 10
the student a FAPE and AFFIRM the decision of the district court. 11
12
13
TRACEY SPENCER WALSH, (Gary S. 14
Mayerson, Maria C. McGinley, on the 15
brief), Mayerson & Associates, New 16
York, New York, for Plaintiffs- 17
Appellees R.E. and M.E. 18
19
ALAN G. KRAMS (Kristin M. Helmers, 20
Lesley Berson Mbaye, on the brief) 21
for Corporation Counsel for the 22
City of New York, NY, for 23
Defendant-Appellant New York City 24
Department of Education. 25
26
TRACEY SPENCER WALSH, (Gary S. 27
Mayerson, Maria C. McGinley, on the 28
brief), Mayerson & Associates, New 29
York, New York, for Plaintiff- 30
Appellee R.K. 31
32
ALAN G. KRAMS (Stephen J. McGrath, 33
Kimberly Conway, Julie Steiner, on 34
the brief) for Corporation Counsel 35

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for the City of New York, NY, for 1
Defendant-Appellant New York City 2
Department of Education. 3
4
GARY S. MAYERSON, (Tracey Spencer 5
Walsh, Brianne N. Dotts, on the 6
brief), Mayerson & Associates, New 7
York, New York, for Plaintiff- 8
Counter-Defendant–Appellant E.Z.-L. 9
10
ALAN G. KRAMS (Kristin M. Helmers, 11
Lesley Berson Mbaye, on the brief) 12
for Corporation Counsel of the City 13
of New York, NY, for Defendant- 14
Appellee New York City Department 15
of Education. 16
17
JOHN M. WALKER, JR., Circuit Judge: 18
These cases require us to resolve several legal issues 19
related to the rights of disabled children under the Individuals 20
with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et 21
seq. In these three cases, parents of autistic children 22
(collectively and in their respective pairs, “the parents”) 23
declined school placements offered by the New York City 24
Department of Education (“the Department”) and placed their 25
children in private schools. The parents brought due process 26
claims against the Department for tuition reimbursement on the 27
grounds that the Department’s public school placement offers for 28
their children were inadequate. In each case, the parents were 29
initially granted relief following a hearing before an impartial 30
hearing officer (“IHO”), but subsequently were denied relief 31
after the IHO’s decision was reversed on appeal by the state 32

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review officer (“SRO”). In each case, the SRO relied in part on 1
testimony from Department personnel about the educational program 2
the student would have received if he or she had attended public 3
school. The parents challenge the appropriateness of relying on 4
such testimony, which for ease of reference we refer to in 5
shorthand as “retrospective testimony.” 6
In each case, the parents sought to have the SRO’s 7
determination reversed by the appropriate United States District 8
Court, and in two of the three cases they succeeded. In R.E., 9
no. 11-1266-cv, the District Court for the Southern District of 10
New York (Robert W. Sweet, Judge) found that the Department 11
failed to provide the student with a free and appropriate public 12
education (“FAPE”) and granted summary judgment for the parents. 13
In R.K., no. 11-1474-cv, the District Court for the Eastern 14
District of New York (Kiyo A. Matsumoto, Judge) similarly found 15
that the Department failed to provide the student with a FAPE and 16
granted summary judgment for the parents. In E.Z.-L., no. 11- 17
655-cv, however, the District Court for the Southern District of 18
New York (Sidney H. Stein, Judge) found that the Department had 19
provided the student with a FAPE and granted it summary judgment. 20
Among the legal conclusions we reach, we conclude that the 21
use of retrospective testimony about what would have happened if 22
a student had accepted the Department’s proposed placement must 23
be limited to testimony regarding the services described in the 24

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student’s individualized educational program (“IEP”). Such 1
testimony may not be used to materially alter a deficient written 2
IEP by establishing that the student would have received services 3
beyond those listed in the IEP. In light of this and other legal 4
conclusions, we reverse the decision of the district court in 5
R.E., and we affirm the decisions of the district courts in R.K. 6
and E.Z.-L. 7
BACKGROUND 8
I. The Legal Framework 9
Before delving into the facts of these cases, it is useful 10
to understand the legal framework of the IDEA. A state receiving 11
federal funds under the IDEA must provide disabled children with 12
a free and appropriate public education (“FAPE”). Cerra v. 13
Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). To 14
ensure that qualifying children receive a FAPE, a school district 15
must create an individualized education program (“IEP”) for each 16
such child. See 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. 17
Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) 18
(describing the IEP as the “centerpiece” of the IDEA system). 19
The IEP is “a written statement that sets out the child’s present 20
educational performance, establishes annual and short-term 21
objectives for improvements in that performance, and describes 22
the specially designed instruction and services that will enable 23

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the child to meet those objectives.” D.D. ex rel. V.D. v. N.Y.C. 1
Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal 2
quotation marks omitted). The IDEA requires that an IEP be 3
“reasonably calculated to enable the child to receive educational 4
benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). 5
In New York, the state has assigned responsibility for 6
developing IEPs to local Committees on Special Education 7
(“CSEs”). N.Y. Educ. Law § 4402(1)(b)(1); Walczak v. Fla. Union 8
Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). CSEs are 9
comprised of members appointed by the local school district’s 10
board of education, and must include the student’s parent(s), a 11
regular or special education teacher, a school board 12
representative, a parent representative, and others. N.Y. Educ. 13
Law § 4402(1)(b)(1)(a). The CSE must examine the student’s level 14
of achievement and specific needs and determine an appropriate 15
educational program. Gagliardo v. Arlington Cent. Sch. Dist., 16
489 F.3d 105, 107-08 (2d Cir. 2007). 17
If a parent believes that his child’s IEP does not comply 18
with the IDEA, the parent may file a “due process complaint” (a 19
type of administrative challenge unrelated to the concept of 20
constitutional due process) with the appropriate state agency. 21
20 U.S.C. § 1415(b)(6). In such cases, the IDEA mandates that 22
states provide “impartial due process hearings” before impartial 23
hearing officers (“IHOs”). Id. § 1415(f). Under New York’s 24

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administrative system, the parties first pursue their claim in a 1
hearing before an IHO. N.Y. Educ. Law § 4404(1). Either party 2
may then appeal the case to the state review officer (“SRO”), who 3
may affirm or modify the IHO’s order. Id. § 4404(2). Either 4
party may then bring a civil action in state or federal court to 5
review the SRO’s decision. 20 U.S.C. § 1415(i)(2)(A). 6
7
II. Facts 8
Like most IDEA cases, the consolidated appeals before us are 9
fact-intensive. We therefore find it necessary to set forth in 10
some detail the facts of the three cases. 11
12
A. R.E., No. 11-1266-cv 13
1. Background 14
J.E., the son of R.E. and M.E., is an autistic child born in 15
1999. Since September 2002, J.E. has attended the private 16
McCarton School (“McCarton”) located in Manhattan. May 2007, 17
R.E. and M.E. rejected the Department’s offer of a 6:1:1 (six 18
students, one teacher, one paraprofessional aide) classroom 19
setting in a special public school for the 2007-08 school year. 20
After the Department conceded that the 2007-08 placement had 21
failed to provide a FAPE, the IHO found that the parents were 22
entitled to reimbursement, which conclusion is not challenged in 23

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this appeal. J.E. continued at McCarton during the 2007-08 1
school year. 2
At McCarton, J.E. was in a classroom with five other 3
children and a 1:1 student-to-teacher ratio (i.e., each student 4
had his or her own teacher). Each week he received approximately 5
30 hours of applied behavioral analysis (“ABA”) therapy, which is 6
an intensive one-on-one therapy that “involves breaking down 7
activities into discrete tasks and rewarding a child’s 8
accomplishments.” Cnty. Sch. Bd. v. Z.P. ex rel. R.P., 399 F.3d 9
298, 301 (4th Cir. 2005) (internal quotation marks omitted). He 10
also received 1:1 speech and language therapy five times a week 11
in 60-minute sessions, and 1:1 occupational therapy five times a 12
week in 45-minute sessions. 13
2. The IEP 14
On May 21, 2008, the Department convened a CSE to develop an 15
IEP for the 2008-09 school year. Present at this meeting were 16
R.E., J.E.’s father; Xin Xin Guan, the Department’s 17
representative; Jane O’Connor, a special education teacher; 18
Jeanette Betty, a parent representative; Tara Swietek, J.E.’s 19
head teacher at McCarton; Kelly Lynn Landris, a McCarton speech 20
and language pathologist; Nipa Bhandari, a McCarton occupational 21
therapist; and Ivy Feldman, McCarton’s director. 22
Because J.E. had never attended public school, the CSE 23
relied primarily on information it received from McCarton. This 24

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information consisted of an educational progress report, which 1
explained J.E.’s aptitude with communication, cognition, social 2
skills, and adaptive behaviors, and recommended continuation of 3
his current course of 1:1 therapy; a speech and language progress 4
report, which evaluated J.E.’s language abilities and recommended 5
a continued course of five 60-minute sessions per week; and an 6
occupational therapy progress report, which outlined J.E.’s 7
progress and goals and recommended that he continue with his 8
current course of five 45-minute sessions per week and continue 9
to participate in yoga sessions. Additionally, Carol Schaechter, 10
a Department employee, observed J.E. for one day at McCarton. 11
Her report related J.E.’s activities and noted some behavioral 12
problems. It made no recommendations. 13
The resulting IEP offered J.E. a 12-month placement in a 14
special class in a public school with a staffing ratio of 6:1:1. 15
It also provided J.E. with a dedicated full-time paraprofessional 16
aide. The IEP included speech therapy, occupational therapy, and 17
counseling as related services. The CSE also produced a 18
Functional Behavioral Assessment (“FBA”). The FBA identified six 19
problem behaviors that interfere with J.E.’s learning: 20
scripting/self-talk, eye closing, vocal protests, impulsivity, 21
anxiety, and escape behaviors. The CSE created a corresponding 22
Behavior Intervention Plan (“BIP”), stating that prompting, 23
redirection, positive reinforcement, token economy, and a written 24

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schedule were the primary strategies that would be used to 1
address J.E.’s problem behaviors. 2
On June 9, 2008, the Department mailed R.E. and M.E. a final 3
notice of recommendation (“FNR”) offering a classroom at P.S. 208 4
that provided the services listed in the IEP. After the parents 5
visited P.S. 208, R.E. sent a letter to the Department rejecting 6
the proposed placement because it lacked sufficient 1:1 7
instruction. R.E. stated that he would be willing to consider 8
other placements, but that if none was offered, J.E. would 9
continue at McCarton. The Department did not offer an 10
alternative placement, and on February 11, 2009, the parents 11
filed a Demand for Due Process seeking tuition reimbursement for 12
the 2008-09 school year. 13
3. The Due Process Hearing and IHO Determination 14
At the due process hearing, Department psychologist Xin Xin 15
Guan, who had represented the Department at the IEP meeting, 16
testified that the CSE had reviewed all of the McCarton reports. 17
Based on these documents, Guan believed that the IEP was 18
appropriate. Specifically, she believed that the 6:1:1 staffing 19
ratio “could provide [J.E.] with the support[] needed to address 20
his academic and social-emotional needs.” June 16, 2009 Hearing 21
Transcript at 278-79, Joint Appendix (“J.A.”) 306-07. She 22
testified that she felt a non-public-school placement would be 23
too restrictive, and that it would not hurt J.E. to be exposed to 24

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methodologies besides ABA therapy. Guan further explained that 1
she had developed the FBA and BIP based on the McCarton reports. 2
She acknowledged that she lacked specific information about the 3
frequency and duration of J.E.’s problem behaviors. 4
Peter De Nuovo, a special education teacher at P.S. 208, 5
testified that he would have been J.E.’s teacher at P.S. 208. He 6
described his classroom, noting that for the 2008-09 school year, 7
he had five students in his class ranging from nine to twelve 8
years old. He stated that he was supported by a classroom 9
paraprofessional, Kesha Danc, who had about ten years’ experience 10
working with autistic children, and that, in addition, three of 11
the students had their own paraprofessionals. De Nuovo described 12
his methods of instruction. He also testified about techniques 13
he would have used to remedy J.E.’s problem behaviors. 14
Two McCarton personnel, Joe Pierce and Ivy Feldman, 15
countered the testimony of Guan and De Nuovo: they testified that 16
J.E. requires 1:1 teacher support and would not be able to learn 17
in a 6:1:1 setting. 18
On August 28, 2009, IHO William J. Wall issued a decision 19
granting the parents’ reimbursement request. He noted that the 20
Department representatives had no personal knowledge of J.E., but 21
the McCarton personnel did. He found that the evidence before 22
the CSE did not support the conclusion that J.E. could succeed in 23
a 6:1:1 setting because the only evaluations of J.E. stated that 24

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he required 1:1 teacher support. Additionally, he found that the 1
proposed IEP did not include the amount of related services 2
recommended by the McCarton reports. The IHO concluded that 3
“[t]he testimony and the evidence does not support the District’s 4
conclusion that a 6:1:1 program would be an educational setting 5
that would be calculated to provide [J.E.] with meaningful 6
educational progress.” IHO Decision at 7, J.A. 673. 7
The IHO also faulted the Department for its failure to 8
conduct an adequate FBA and develop an appropriate BIP. Although 9
these documents were prepared, they purportedly failed to meet 10
the criteria laid out in New York State regulations because they 11
did not contain specific information about the frequency, 12
duration, and intensity of the problem behaviors. See N.Y. Comp. 13
Codes R. & Regs. tit. 8, § 200.22(a)(3), (b)(5). The IHO went on 14
to find that the McCarton school was an appropriate placement and 15
that J.E.’s parents were entitled to full tuition reimbursement. 16
4. The SRO Decision 17
The Department appealed, and on December 14, 2009, SRO Paul 18
F. Kelly issued a lengthy opinion reversing the IHO and denying 19
tuition reimbursement. The SRO concluded that the goals and 20
objectives listed in the IEP were adequately linked to J.E.’s 21
academic level and needs, and that, contrary to the IHO’s 22
finding, a 6:1:1 program was appropriate. The SRO noted De 23
Nuovo’s testimony that his class actually consisted of five 24

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students and five adults (himself, the classroom aide, and the 1
three dedicated paraprofessionals), and emphasized that the 2
instructor and paraprofessionals were adequately trained and had 3
appropriate credentials. Ultimately, the SRO concluded that “the 4
hearing record illustrates that the recommended classroom would 5
have been able to appropriately support the student with 1:1 6
paraprofessional support such that a FAPE was offered.” SRO 7
Opinion at 18, J.A. 701. The SRO further found that, although 8
the McCarton reports indicated a need for 1:1 support, they did 9
not suggest that 1:1 paraprofessional support would be 10
insufficient. 11
The SRO went on to state that De Nuovo would have “adapted 12
the New York State curriculum to meet the students’ individual 13
needs.” Id. He cited specific examples from De Nuovo’s 14
testimony as to what strategies he would have used to work with 15
J.E. The SRO also found that the lack of specific data in the 16
FBA was not fatal to the IEP. He noted that the IEP contained 17
strategies to deal with J.E.’s problem behaviors and also 18
referred to specific strategies that De Nuovo would have used in 19
the classroom. Finally, he concluded that the absence of parent 20
training and counseling from the written IEP was acceptable 21
because the record showed that adequate counseling opportunities 22
would have been available at P.S. 208. 23
24

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5. Proceedings in the District Court 1
The parents then brought this action in the United States 2
District Court for the Southern District of New York seeking a 3
reversal of the SRO’s decision. On March 11, 2011, the district 4
court granted summary judgment for the parents and reversed the 5
SRO. R.E. v. N.Y.C. Dep’t of Educ., 785 F. Supp. 2d 28 (S.D.N.Y. 6
2011). The district court found that the SRO had based his 7
conclusion on “after-the-fact testimony . . . as to what the 8
teacher, De Nuovo, would have done if J.E. had attended his 9
class.” Id. at 41. It adopted the rule that “[t]he sufficiency 10
of the IEP is determined from the content within the four corners 11
of the IEP itself.” Id. at 42. The district court found that 12
the SRO had reversed the IHO primarily on the basis of De Nuovo’s 13
testimony, and that there was no evidence in the record to 14
support the SRO’s conclusion that a 1:1 paraprofessional aide was 15
adequate for J.E. Id. at 42-43. It further concluded that the 16
SRO’s decision was not based on educational policy, “particularly 17
given that it relies so heavily on the testimony [of] individuals 18
who lacked personal knowledge of J.E.” Id. at 43. The 19
Department appeals. 20
21
22
23
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B. R.K., No. 11-1474-cv 1
1. Background 2
R.K., the daughter of R.K. and S.L., is an autistic child 3
born in 2004. R.K. was first diagnosed with autism at age two. 4
Prior to mid-2006, she received home-based therapy (occupational 5
and speech therapy as well as ABA) through New York’s Early 6
Intervention Program. In July 2006, R.K. began a full-day 7
preschool program at the Interdisciplinary Center for Child 8
Development (“ICCD”). She was placed in an 8:1:3 classroom 9
(eight students, one teacher, three classroom aides), and 10
received separate speech and language therapy and occupational 11
therapy three times each week in 30-minute 1:1 sessions. 12
Starting in September 2007, R.K. received five two-hour 1:1 ABA 13
therapy sessions per week at home through TheraCare. 14
2. The IEP 15
On April 29, 2008, the CSE met to create an IEP for R.K. for 16
the 2008-09 school year. Present at the meeting were R.K.’s 17
parents; Dr. Wanda Enoch, the Department representative; Tracy 18
Spiro, a special education teacher; Rita Halpern, a general 19
education teacher; a parent representative; and a school social 20
worker. The CSE reviewed extensive reports on R.K., including a 21
pediatric report by neurologist Dr. John T. Wells, which 22
concluded that R.K. was high-functioning autistic and should 23
continue with an ABA-based program; a social history update from 24

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ICCD, which concluded that the ABA method was effective for R.K. 1
and that she should remain in a small, structured environment; a 2
psycho-educational evaluation by school psychologist Chris 3
Starvopoulos, finding that R.K. was too unstable to be evaluated 4
but opining that she required a highly structured environment; a 5
TheraCare age-out report concluding that R.K. required continued 6
1:1 special education services, as well as related services; a 7
progress report from ICCD, prepared by Tracey Spiro, concluding 8
that R.K. would benefit from a small and highly structured 9
classroom environment; a speech progress report from the ICCD, 10
again recommending a small, structured learning environment and 11
three 1:1 speech and language sessions per week; an occupational 12
therapy progress report from ICCD recommending three occupational 13
therapy sessions per week; a private evaluation by the McCarton 14
Center, recommending 40 hours of 1:1 ABA therapy per week, 15
“manding” sessions (in which a child is shown reinforcing items 16
she can access upon request), five 60-minute speech and language 17
therapy sessions per week, five 60-minute occupational therapy 18
sessions per week in a sensory gym, and two hours of ABA training 19
per week for the parents; and a checklist prepared after a 20
preschool observation of R.K recommending a 6:1:1 classroom. 21
The resulting IEP offered a 6:1:1 class in a special public 22
school. It offered speech and language therapy and occupational 23
therapy, each three times a week in 30-minute sessions. It 24

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stated that R.K. demonstrated “self-stimulatory behaviors which 1
interfere[d] with her ability to attend to tasks and to socially 2
interact with others.” IEP at 3, J.A. 610. However, it 3
concluded that her behavior “does not seriously interfere with 4
instruction and can be addressed by the . . . special education 5
classroom teacher.” IEP at 4, J.A. 612. 6
On May 7, 2008, before the parents received a final 7
placement offer from the Department, they signed a contract to 8
enroll R.K. in the Brooklyn Autism Center (“BAC”), a private 9
school. The contract allowed the parents to withdraw prior to 10
September 10, 2008, and be reimbursed for their tuition payments 11
minus a $1,000 non-refundable deposit. On June 12, 2008, the 12
Department provided R.K.’s parents with an FNR offering her a 13
classroom at “P075Q @ Robert E. Peary Schl” (“P075Q”). On June 14
26, 2008, the parents notified the Department that they rejected 15
the proposed placement and would be sending R.K. to BAC. They 16
primarily cited inadequate 1:1 ABA support in the IEP. 17
3. The Due Process Hearing and IHO Determination 18
On June 27, 2008, the parents filed a Demand for Due Process 19
seeking reimbursement for their 2008-09 tuition at BAC. IHO Mary 20
Noe held a hearing on January 7 and 8, 2009. At the hearing, 21
Jamie Nicklaus, the Educational Director at BAC, testified that 22
R.K. required 1:1 instruction to make progress. Leonilda Perez, 23
who would have been R.K.’s teacher at P075Q, testified about her 24

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classroom practices. She stated that she used a method called 1
Treatment and Education of Autistic and Communication–Related 2
Handicapped Children (“TEACCH”) with some elements of ABA. The 3
TEACCH method differs from ABA therapy in that it places greater 4
emphasis on visual skills, independent work, and group 5
instruction. See Z.P., 399 F.3d at 302. Perez testified that 6
she conducted 1:1 ABA sessions, including manding, with each 7
student. Perez further stated that, based on the information in 8
R.K.’s IEP, she might have had to create a BIP for R.K. 9
Dr. Enoch, a school psychologist and the Department’s 10
representative at the CSE, testified that a 1:1 setting would be 11
too restrictive for R.K. and that it would be better for her to 12
interact with a small group. She stated that no formal FBA or 13
BIP was necessary because R.K.’s preschool teacher said she was 14
“no behavior problem.” January 7, 2009 Hearing Transcript at 15
144-45, J.A. 82-83. Desiree Sandoval, the parent coordinator at 16
P075Q, testified that the school would have provided various 17
counseling and training opportunities for the parents at their 18
request. 19
On February 25, 2009, the IHO issued a decision awarding 20
tuition reimbursement to R.K.’s parents. Based on the record, 21
the IHO found that there was “no one unanimous theory as to 22
whether this student needs 1:1 or just a highly structured 23
environment. There is a consensus that the student needs an ABA 24

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program, speech and language and occupational therapy.” IHO 1
Opinion at 5, J.A. 677. The IHO found that because the IEP’s 2
recommended program was a 6:1:1 classroom and provided only 25 3
minutes of 1:1 ABA therapy per day, it did not have an adequate 4
level of support for R.K. 5
However, the IHO found that the parents were entitled to 6
only partial reimbursement because the BAC program selected by 7
the parents met only part of R.K.’s special education needs and 8
provided more individualized instruction than her assessments 9
warranted. The IHO noted that R.K. received 1:1 therapy all day, 10
which she felt was more restrictive than warranted by R.K.’s 11
providers’ consistent recommendations of a small, structured 12
environment. Additionally, she found that no therapies were 13
provided in the BAC classroom and there were no integrated 14
efforts by therapists and teachers. The IHO then calculated the 15
appropriate award by multiplying the Department’s rate for ABA 16
therapists ($45 per hour, less than the $62.50 per hour charged 17
by BAC) times the number of hours of 1:1 ABA instruction (an 18
estimate created by halving the total number of school hours). 19
She arrived at an award of $32,400. BAC’s tuition is $90,000 per 20
year. 21
4. The SRO Decision 22
The Department appealed, and on June 19, 2009, SRO Kelly 23
issued a decision reversing the IHO and denying tuition 24

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reimbursement entirely. He found that the IEP provided an 1
adequate program to address R.K.’s speech and language deficits 2
as well as her motor sensory deficits because it provided for 3
speech and language therapy and occupational therapy. Relying 4
extensively on Perez’s testimony about her classroom methods, the 5
SRO found that the proposed 6:1:1 program was sufficient. He 6
noted that Perez used TEACCH methodology with some elements of 7
ABA, and stated that R.K. would have received 25 minutes of 1:1 8
ABA instruction per day, including manding. The SRO also found, 9
based on Perez’s testimony, that she would have conducted an FBA 10
and developed a BIP to address R.K.’s problem behaviors. 11
Ultimately, the SRO found that “[t]he hearing record indicates 12
that the recommended 6:1+1 class would have provided the student 13
with a small, highly structured classroom environment along with 14
the opportunity to interact with peers. . . . In addition, the 15
student would have received individual instruction and that 16
instruction would have been ABA-based.” SRO Opinion at 19, J.A. 17
762. 18
The SRO dismissed the concern that the IEP did not include 19
parent training or counseling, as required by state regulation, 20
because of Sandoval’s testimony that the P075Q would have 21
provided parent training and counseling. Similarly, he found 22
that although the IEP did not include the required 30-60 minutes 23
of daily speech therapy, Perez had testified that this therapy 24

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22
was incorporated into her class, and the requirement was 1
therefore satisfied. Finally, the SRO acknowledged that no FBA 2
or BIP had been completed but found that this did not amount to a 3
denial of a FAPE because Perez would have created a BIP and the 4
parents had not articulated how R.K. would have been harmed by 5
not having a BIP in place before entering the class. 6
5. Proceedings in the District Court 7
R.K.’s parents then initiated the present action seeking a 8
reversal of the SRO’s decision and full tuition reimbursement. 9
On January 21, 2011, Magistrate Judge Roanne L. Mann issued a 10
recommendation that summary judgment be granted for the parents. 11
R.K. ex rel. R.K. v. N.Y.C. Dep’t of Educ., No. 09-CV-4478 (KAM), 12
2011 WL 1131492 (E.D.N.Y. Jan. 21, 2011). She concluded that the 13
Department’s failure to conduct an FBA and develop a BIP was 14
significant because the record plainly established that R.K.’s 15
behavioral problems impeded her learning. Id. at *17-20; see 16
also N.Y. Comp. Codes R. & Regs. tit. 8, § 200.4(b)(1)(v). She 17
found that the goals and objectives in the IEP were not adequate 18
because they did not provide specific strategies for addressing 19
problem behaviors. R.K., 2011 WL 1131492, at *19; see also N.Y. 20
Comp. Codes R. & Regs. tit. 8, § 200.22(b)(4). Judge Mann 21
rejected as insufficient Perez’s testimony that she would have 22
created a BIP once R.K. was in her class. R.K., 2011 WL 1131492, 23
at *20. 24

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23
Notably, Judge Mann rejected testimony offered by the 1
Department to attempt to overcome omissions in the IEP: “More 2
broadly, the Court rejects, as fundamentally flawed, the DOE’s 3
invitation to the Court to overlook deficiencies in the IEP based 4
on subsequent testimony that the recommended placement might have 5
later sought to cure those deficiencies.” Id. Following similar 6
reasoning, Judge Mann rejected the SRO’s reliance on testimony 7
that, despite being omitted in the IEP, parent counseling and 8
speech and language therapy would have been provided in practice. 9
Id. at *21. 10
Judge Mann also rejected the SRO’s conclusion that the 11
proposed 6:1:1 placement was sufficient. She noted that, 12
although R.K. would have received 25 minutes of 1:1 ABA per day, 13
the consensus view of the professional evaluations was that this 14
amount of 1:1 support would be insufficient. Id. at *23. She 15
further noted that 1:1 instruction is not inconsistent with a 16
small group setting. Id. at *24. 17
Ultimately, Judge Mann concluded that the IEP was inadequate 18
and R.K. had been denied a FAPE. She determined that the SRO had 19
ignored the clear consensus of R.K.’s evaluators and failed to 20
consider the cumulative effect of the numerous procedural 21
deficiencies. Id. at *24-25. She disagreed with the IHO’s 22
partial award determination and recommended that the parents 23
receive full reimbursement. Id. at *27-30. On March 28, 2011, 24

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24
the United States District Court for the Eastern District of New 1
York (Kiyo A. Matsumoto, Judge) adopted the magistrate’s 2
recommendation in full, over the Department’s objection. R.K. ex 3
rel. R.K. v. N.Y.C. Dep’t of Educ., No. 09-CV-4478 (KAM) (RLM), 4
2011 WL 1131522 (E.D.N.Y. Mar. 28, 2011). The Department 5
appeals. 6
7
C. E.Z.-L., No. 11-655-cv 8
1. Background 9
E.Z.-L., the daughter of R.L. and A.Z., is an autistic child 10
born in 2002. Since September 2005, E.Z.-L. has attended the 11
Rebecca School, a private school located in Manhattan. In 2007, 12
the Department offered E.Z.-L. a placement for the 2007-08 13
school year. The parents rejected this placement and re-enrolled 14
her at the Rebecca School. The parents then sought tuition 15
reimbursement. During the due process hearing, the Department 16
conceded that it had failed to provide a FAPE, but argued that 17
the Rebecca School was not an appropriate placement. The IHO 18
concluded that the Rebecca School was appropriate and awarded the 19
parents tuition for the 2007-08 school year. The Department did 20
not appeal. 21
2. The IEP 22
On April 30, 2008, a CSE met to create an IEP for E.Z.-L. 23
for the 2008-09 school year. Present at the meeting were Feng 24

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25
Ye, a special education teacher acting as the Department’s 1
representative; a Department general education teacher; a parent 2
representative; a social worker from the Rebecca School; and 3
Rebecca Starr, E.Z.-L.’s teacher at the Rebecca School. The CSE 4
reviewed numerous documents from the Rebecca School and private 5
clinicians, including a January 2, 2008 occupational therapy 6
progress report, which described E.Z.-L.’s ability to use a 7
sensory gym; a January 2008 progress report from the Rebecca 8
School detailing E.Z.-L.’s progress in a number of areas; a 9
February 6, 2008 speech and language progress report recommending 10
continued speech interventions; a March 30, 2008 occupational 11
therapy progress report, which recommended occupational therapy 12
three times per week individually and once per week in a dyad 13
(group of two); an April 2008 speech and language progress 14
report, which recommended continued speech and language therapy 15
in three 30-minute sessions per week (two sessions individually, 16
one in a dyad); and a May 2008 progress report, which showed 17
notable progress in most areas. 18
The resulting IEP offered E.Z.-L. a place in a specialized 19
public school with a staffing ratio of 6:1:1. It also included 20
occupational therapy, speech and language therapy, and 21
counseling. The IEP did not include an FBA or BIP because it 22
found that E.Z.-L.’s behavior did not seriously interfere with 23
instruction. On May 8, 2008, the Department issued an FNR 24

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1 DIR stands for “Developmental Individual-difference
Relationship-based” therapy. Unlike ABA, which is a behavioral
therapy, DIR is primarily based on helping the child build
relationships and reach a higher developmental level. See A.D.
v. Bd. of Educ. Of City Sch. Dist. of City of N.Y., 690 F. Supp.
2d 193, 198-99 (S.D.N.Y. 2010).
26
placing E.Z.-L. at the Children’s Workshop School in Manhattan. 1
On May 22, 2008, the parents sent a letter to the Department 2
stating that, after visiting the proposed school, they rejected 3
the Department’s recommendation. The letter stated that the 4
parents would consider other programs, but in the absence of 5
another offer, would seek reimbursement for tuition at the 6
Rebecca School. On June 25, 2008, the parents sent a followup 7
letter reiterating their view that the proposed placement was 8
inappropriate and notifying the Department that they would seek 9
reimbursement for physical therapy and related services in 10
addition to R.K.’s private tuition. 11
3. The Due Process Hearing and IHO Determination 12
On June 27, 2008, the parents filed a Demand for Due Process 13
formally seeking reimbursement. A hearing was held before IHO 14
Gary D. Peters over the course of five non-consecutive days in 15
2008 and 2009. At the hearing, Tina McCourt, the program 16
director at the Rebecca School, testified about the school’s 17
methodology. The school uses the “DIR/Greenspan/floor time” 18
approach, which involves sensory gyms and frequent assessments 19
aided by video monitoring. 1 McCourt testified that the sensory 20

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27
gym is particularly important for E.Z.-L. Rebecca Starr, E.Z.- 1
L.’s teacher at the Rebecca School, testified about E.Z.-L.’s 2
class. The class contains seven or eight students, and three 3
assistant teachers, all of whom have at least a bachelor’s 4
degree. Starr described E.Z.-L. as very rigid and explained that 5
she required a large amount of floor time to overcome this. 6
Starr also described the speech therapy and DIR therapy provided 7
at the Rebecca School. 8
A.Z., E.Z.-L.’s mother, testified that she had visited the 9
Children’s Workshop and had been told that it did not contain a 10
sensory gym or offer DIR support. She recalled being told that 11
the school conducted occasional parent training events that she 12
could attend. A.Z. also described the “Throwback Sports” 13
program, a recreational therapeutic program in which she had 14
enrolled E.Z.-L., and for which she was seeking reimbursement 15
from the Department. 16
Feng Ye, a Department special education teacher, explained 17
that, although E.Z.-L. had a history of biting her hands and 18
hitting herself, the IEP team declined to create an FBA or BIP 19
because it believed E.Z.-L.’s behaviors could be addressed by the 20
classroom teacher. Susan Cruz, an assistant principal at P.S. 21
94, testified about the Children’s Workshop (which was an off- 22
site part of P.S. 94). Cruz testified about the classroom in 23
which E.Z.-L. would have been placed. She explained that E.Z.- 24

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28
L.’s teacher would have used TEACCH methodology with some ABA. 1
Cruz opined that a sensory diet could have been implemented by an 2
occupational therapist and that the school contained a sensory 3
room. She further stated that most of the teachers at the school 4
do use floor time. Finally, Cruz testified that the school 5
provides training for parents on an as-needed basis. 6
On March 24, 2009, the IHO issued a decision awarding 7
reimbursement to E.Z.-L.’s parents. The IHO found that the 8
Department should have conducted an FBA and created a BIP in 9
light of Ye’s admission that E.Z.-L. exhibited self-injurious 10
behaviors. He also found that the IEP failed to include the 11
required parent training and counseling. The IHO concluded that 12
the Department’s failure to recommend a specific placement at the 13
IEP meeting was a procedural violation because parents may join 14
“any group that makes decisions on the educational placement of 15
their child.” 20 U.S.C. § 1414(e). The IHO was skeptical of 16
Ye’s testimony, noting that she had never worked with autistic 17
children and that she had attended approximately 200 CSE meetings 18
in the spring of 2008 and thus had difficulty remembering exactly 19
what occurred at this particular meeting. The IHO also faulted 20
the Department’s failure to create a transition plan. He 21
rejected Cruz’s testimony that such a plan would have been 22
created, noting that transition plans necessarily must be 23
completed in advance. 24

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29
For these reasons, the IHO concluded that E.Z.-L. had been 1
denied a FAPE. He further determined that the Rebecca School, 2
along with E.Z.-L.’s additional services, were appropriate and 3
that the parents were entitled to reimbursement. 4
4. The SRO Decision 5
The Department appealed, and on June 26, 2009, SRO Kelly 6
issued an opinion reversing the IHO and denying tuition 7
reimbursement. The SRO found that the failure to conduct an FBA 8
or create a BIP was not a violation because Rebecca Starr, E.Z.- 9
L.’s teacher, felt that one was not necessary. He further found 10
that the failure to include parent training in the IEP was not a 11
violation because training would have been provided by the school 12
as needed. 13
With regard to parent involvement in placement decisions, 14
the SRO found that the failure to recommend a specific school 15
during the CSE meeting was not a violation because the 16
requirement of parent involvement only applies to the general 17
structure of a placement, not the choice of a specific site. He 18
also found that the failure to develop a transition plan did not 19
amount to a denial of a FAPE because there was no evidence that 20
E.Z.-L. had been harmed by the lack of a plan and the record 21
showed that the proposed school would have been responsive to any 22
issues arising from her transfer. 23

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30
After examining the IEP, the SRO concluded that the proposed 1
program adequately took into account E.Z.-L.’s difficulties and 2
abilities and was reasonably calculated to confer educational 3
benefit. Based on Cruz’s testimony about the Children’s 4
Workshop, he concluded that it would have met E.Z.-L.’s needs. 5
5. Proceedings in the District Court 6
E.Z.-L.’s parents then instituted this action seeking 7
reversal of the SRO’s decision. On January 24, 2011, the United 8
States District Court for the Southern District of New York 9
granted summary judgment in favor of the Department. E.Z.-L. ex 10
rel. R.L. v. N.Y.C. Dep’t of Educ., 763 F. Supp. 2d 584 (S.D.N.Y. 11
2011). The district court agreed with the SRO that the 12
Department had provided a FAPE and had not committed any 13
procedural or substantive violations, and accordingly denied 14
reimbursement. The parents appeal. 15
16
DISCUSSION 17
Although each of the three cases on appeal involves 18
individualized and unrelated facts, we address them in a single 19
opinion because they involve common issues of law. Accordingly, 20
we first examine these common issues before applying the law to 21
each individual case. 22
23
24

-- 30 of 58 --

2 Although the Supreme Court has not decided whether a state-
imposed burden in an initial hearing also applies in a subsequent
federal suit, see Schaffer v. Weast, 546 U.S. 49, 62 (2005), we
need not decide that issue here, see M.H. v. N.Y.C. Dep’t of
Educ., 685 F.3d 217, 225 n.3 (2d Cir. 2012).
31
I. Legal Framework 1
“We review de novo the district court’s grant of summary 2
judgment in an IDEA case. Summary judgment in this context 3
involves more than looking into disputed issues of fact; rather, 4
it is a ‘pragmatic procedural mechanism’ for reviewing 5
administrative decisions.” A.C. ex rel. M.C. v. Bd. of Educ., 6
553 F.3d 165, 171 (2d Cir. 2009) (internal citations omitted). A 7
federal court reviewing a dispute over an IEP must base its 8
decision on the preponderance of the evidence. Id. Moreover, we 9
must defer to the administrative decision because “the judiciary 10
generally lacks the specialized knowledge and experience 11
necessary to resolve persistent and difficult questions of 12
educational policy.” Id. Deference is particularly appropriate 13
when the state officer’s review “has been thorough and careful,” 14
but still we do not “simply rubber stamp administrative 15
decisions.” Walczak, 142 F.3d at 129. 16
Under New York’s Education Law § 4404(1)(c), the local 17
school board bears the initial burden of establishing the 18
validity of its plan at a due process hearing. 2 If the board 19
fails to carry this burden, the parents bear the burden of 20
establishing the appropriateness of their private placement and 21

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32
that the equities favor them. Cerra, 427 F.3d at 192. This 1
framework is known as the Burlington/Carter test. See Florence 2
Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of 3
Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985). 4
The parties have presented four common questions of law that 5
we must resolve before turning to each case individually: First, 6
when, if ever, is it permissible for a district to augment the 7
written IEP with retrospective testimony about additional 8
services that would have been provided at the proposed placement; 9
second, when an IHO and SRO reach conflicting conclusions, what 10
deference should a court pay to each; third, at what point do 11
violations of state regulations governing the IEP process amount 12
to a denial of a FAPE entitling the parents to reimbursement; and 13
finally, must parents be involved in the selection of a specific 14
school for their child? 15
16
Retrospective Testimony 17
This appeal primarily calls upon us to consider the 18
appropriateness of what we have labeled “retrospective 19
testimony,” i.e., testimony that certain services not listed in 20
the IEP would actually have been provided to the child if he or 21
she had attended the school district’s proposed placement. In 22
each of the cases now before us, the Department offered 23
retrospective testimony at the IHO hearing to overcome 24

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33
deficiencies in the IEP, and the SRO relied on this retrospective 1
testimony in varying degrees to find that the Department had 2
provided a FAPE. 3
The parents urge us to adopt a rigid “four corners” rule 4
prohibiting any testimony about services beyond what is written 5
in the IEP. The Department counters that review should focus on 6
the services the child would have actually received and therefore 7
should include evidence of services beyond those listed in the 8
IEP. Although we decline to adopt a four corners rule, we hold 9
that testimony regarding state-offered services may only explain 10
or justify what is listed in the written IEP. Testimony may not 11
support a modification that is materially different from the IEP, 12
and thus a deficient IEP may not be effectively rehabilitated or 13
amended after the fact through testimony regarding services that 14
do not appear in the IEP. 15
The permissibility of retrospective testimony is an open 16
question in this circuit. See D.F. ex rel. N.F. v. Ramapo Cent. 17
Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (“[T]his court 18
has not, as yet, decided if it is error to consider retrospective 19
evidence in assessing the substantive validity of an IEP.”). 20
Three of our sister circuits have addressed similar, though not 21
identical, questions and have disfavored retrospective evidence. 22
See Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999) (“[W]e 23
examine the adequacy of [the IEPs] at the time the plans were 24

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34
drafted.”); Carlisle Area Sch. v. Scott P., 62 F.3d 520, 530 (3d 1
Cir. 1995) (holding that an IEP must be judged prospectively from 2
the time of its drafting); Roland M. v. Concord Sch. Comm., 910 3
F.2d 983, 992 (1st Cir. 1990) (“[A]ctions of school systems 4
cannot . . . be judged exclusively in hindsight. An IEP is a 5
snapshot, not a retrospective.”). They are in agreement that the 6
IEP should be evaluated prospectively as of the time of its 7
drafting. 8
The same conclusion has been reached by a number of district 9
courts in this circuit. See R.E., 785 F. Supp. 2d at 41-42; 10
R.K., 2011 WL 1131492, at *20; J.R. v. Bd. of Educ. of City of 11
Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004); 12
Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724 (S.D.N.Y. 13
2003). But see E.Z.-L., 763 F. Supp. 2d at 597-98 (finding that 14
lack of parent training provision in IEP did not amount to a 15
violation because hearing testimony established that school would 16
have provided training); M.N. v. N.Y.C. Dept. of Educ., 700 F. 17
Supp. 2d 356, 368 (S.D.N.Y. 2010) (same). 18
We now adopt the majority view that the IEP must be 19
evaluated prospectively as of the time of its drafting and 20
therefore hold that retrospective testimony that the school 21
district would have provided additional services beyond those 22
listed in the IEP may not be considered in a Burlington/Carter 23
proceeding. 24

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35
The Supreme Court has long recognized that the IDEA allows 1
parents to reject an IEP they feel is inadequate, place their 2
child in an appropriate private school, and seek tuition 3
reimbursement from the school district. See Burlington, 471 U.S. 4
at 369-70 (construing IDEA’s authorization for courts to award 5
“appropriate” relief); see also Forest Grove Sch. Dist. v. T.A., 6
557 U.S. 230, 242-43 (2009) (finding that amendments to the IDEA 7
do not abrogate the Burlington decision). In order for this 8
system to function properly, parents must have sufficient 9
information about the IEP to make an informed decision as to its 10
adequacy prior to making a placement decision. At the time the 11
parents must choose whether to accept the school district 12
recommendation or to place the child elsewhere, they have only 13
the IEP to rely on, and therefore the adequacy of the IEP itself 14
creates considerable reliance interests for the parents. Under 15
the Department’s view, a school district could create an IEP that 16
was materially defective, causing the parents to justifiably 17
effect a private placement, and then defeat the parents’ 18
reimbursement claim at a Burlington/Carter hearing with evidence 19
that effectively amends or fixes the IEP by showing that the 20
child would, in practice, have received the missing services. 21
The Department’s view is incorrect. By requiring school 22
districts to put their efforts into creating adequate IEPs at the 23
outset, IDEA prevents a school district from effecting this type 24

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36
of “bait and switch,” even if the baiting is done 1
unintentionally. A school district cannot rehabilitate a 2
deficient IEP after the fact. 3
We reject, however, a rigid “four corners” rule prohibiting 4
testimony that goes beyond the face of the IEP. While testimony 5
that materially alters the written plan is not permitted, 6
testimony may be received that explains or justifies the services 7
listed in the IEP. See D.S. v. Bayonne Bd. of Educ., 602 F.3d 8
553, 564-65 (3d Cir. 2010) (“[A] court should determine the 9
appropriateness of an IEP as of the time it was made, and should 10
use evidence acquired subsequently to the creation of an IEP only 11
to evaluate the reasonableness of the school district’s decisions 12
at the time they were made.”). For example, if an IEP states 13
that a specific teaching method will be used to instruct a 14
student, the school district may introduce testimony at the 15
subsequent hearing to describe that teaching method and explain 16
why it was appropriate for the student. The district, however, 17
may not introduce testimony that a different teaching method, not 18
mentioned in the IEP, would have been used. Similarly, if a 19
student is offered a staffing ratio of 6:1:1, a school district 20
may introduce evidence explaining how this structure operates and 21
why it is appropriate. It may not introduce evidence that 22
modifies this staffing ratio (such as testimony from a teacher 23

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3 However, evidence that the school district did not follow the
IEP as written might be relevant in a later proceeding to show
that the child was denied a FAPE because necessary services
included in the IEP were not provided in practice. See K.E. ex
rel. K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 811 (8th
Cir. 2011); Bend-Lapine Sch. Dist. v. D.W., 152 F.3d 923, 1998 WL
442952, at *3 (9th Cir. 1998) (table).
It is true that, if an IEP is determined to be inadequate, the
37
that he would have provided extensive 1:1 instruction to the 1
student). 2
The prospective nature of the IEP also forecloses the school 3
district from relying on evidence that a child would have had a 4
specific teacher or specific aide. At the time the parents must 5
decide whether to make a unilateral placement based on the IEP, 6
they may have no guarantee of any particular teacher. Indeed, 7
even the Department cannot guarantee that a particular teacher or 8
aide will not quit or become otherwise unavailable for the 9
upcoming school year. Thus, it is error to find that a FAPE was 10
provided because a specific teacher would have been assigned or 11
because of actions that specific teacher would have taken beyond 12
what was listed in the IEP. The appropriate inquiry is into the 13
nature of the program actually offered in the written plan. 14
Contrary to the Department’s assertions, this rule does not 15
unfairly skew the reimbursement hearing process. Parents who end 16
up placing their children in public school cannot later use 17
evidence that their child did not make progress under the IEP in 18
order to show that it was deficient from the outset. 3 See Scott 19

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parents may provide evidence that the child made actual progress
at their chosen private placement to support the adequacy of that
placement. See Frank G. v. Bd. of Educ., 459 F.3d 356, 364-65
(2d Cir. 2006). However, review of the private placement at that
stage of Burlington/Carter review is more informal than review of
the original IEP: a private placement need not meet the IDEA
requirement for a FAPE and is not subject to the same
mainstreaming requirement as a public placement. Id. at 364.
Additionally, the primary problem with retrospective testimony –
namely, that it prevents parents from making a fully informed
decision about whether to make a unilateral private placement –
will usually not apply to private placements, because the school
district does not rely in any way on the adequacy of the
alternative program.
4 The parents must state all of the alleged deficiencies in the
IEP in their initial due process complaint in order for the
resolution period to function. To permit them to add a new claim
38
P., 62 F.3d at 530. In determining the adequacy of an IEP, both 1
parties are limited to discussing the placement and services 2
specified in the written plan and therefore reasonably known to 3
the parties at the time of the placement decision. See Fuhrmann 4
ex rel. Fuhrmann v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1039- 5
40 (3d Cir. 1993) (“Rowley requires, at the time the initial 6
evaluation is undertaken, an IEP need only be ‘reasonably 7
calculated to enable the child to receive educational benefits.’ 8
. . . [T]he measure and adequacy of the IEP can only be 9
determined as of the time it is offered to the student, not at 10
some later date.” (quoting Rowley, 458 U.S. at 206-07)). 11
An important feature of the IDEA is that it contains a 12
statutory 30-day resolution period once a “due process complaint” 13
is filed. 20 U.S.C. § 1415(f)(1)(B). That complaint must list 14
all of the alleged deficiencies in the IEP. 4 The Department then 15

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after the resolution period has expired would allow them to
sandbag the school district. Accordingly, substantive amendments
to the parents’ claims are not permitted.
39
has thirty days to remedy these deficiencies without penalty. 1
If, at the end of the resolution period, the parents feel their 2
concerns have not been adequately addressed and the amended IEP 3
still fails to provide a FAPE, they can continue with the due 4
process proceeding and seek reimbursement. The adequacy of the 5
IEP will then be judged by its content at the close of the 6
resolution period. 7
Because of this resolution period, there is no danger that 8
parents will take advantage of a school district by failing to 9
alert it to IEP deficiencies and subsequently recover tuition 10
based on those deficiencies. A school district that 11
inadvertently or in good faith omits a required service from the 12
IEP can cure that deficiency during the resolution period without 13
penalty once it receives a due process complaint. If, however, 14
the school district fails to rehabilitate an inadequate IEP 15
within the resolution period, it may not later benefit from the 16
use of retrospective evidence - that is, evidence showing that a 17
child’s public education would have been materially different 18
than what was offered in the IEP. Similarly, parents are 19
precluded in later proceedings from raising additional defects in 20
the IEP that they should have raised from the outset, thus giving 21
the school district a chance to cure the defects without penalty. 22

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40
Our holding today is not inconsistent with our previous 1
holding in T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 417-19 2
(2d Cir. 2009). In T.Y., after finding the IEP appropriate, the 3
IHO and SRO amended it to include additional required services 4
that had been omitted. We upheld this decision. The Department 5
contends that our endorsement of a retroactive amendment to the 6
IEP implicitly allows the use of retrospective evidence. 7
Crucially, however, in T.Y. the IEP was never found to be 8
defective. Thus, neither the IHO nor the SRO used retrospective 9
evidence to remedy a defective IEP; instead they altered an 10
adequate IEP. See id. at 417 (“[T]he IHO determined that [the 11
lack of certain services] alone did not establish that the 12
overall program recommended by the CSE was inappropriate.”). 13
When an IEP adequately provides a FAPE, it is within the 14
discretion of the IHO and SRO to amend it to include omitted 15
services. 16
Accordingly, we hold that, with the exception of amendments 17
made during the resolution period, an IEP must be evaluated 18
prospectively as of the time it was created. Retrospective 19
evidence that materially alters the IEP is not permissible. This 20
rule recognizes the critical nature of the IEP as the centerpiece 21
of the system, ensures that parents will have sufficient 22
information on which to base a decision about unilateral 23
placement, and puts school districts on notice that they must 24

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41
include all of the services they intend to provide in the written 1
plan. If a school district makes a good faith error and omits a 2
necessary provision, they have thirty days after the parents’ 3
complaint to remedy the error without penalty. 4
5
II. Deference to State Decision Makers 6
In each of the cases before us, the IHO’s decision was 7
reversed on appeal by the SRO. The parties dispute the degree of 8
deference that should be afforded to these two state officers. 9
The Department contends that we should defer entirely to the 10
SRO’s views and give no weight to the earlier IHO’s opinion. The 11
parents urge that the SRO’s opinions were not sufficiently 12
reasoned to warrant deference and that consideration of the IHO’s 13
opinion is appropriate. 14
“[T]he role of the federal courts in reviewing state 15
educational decisions under the IDEA is circumscribed.” 16
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112-13 (2d 17
Cir. 2007). We must give “due weight” to the state proceedings, 18
mindful that we lack “the specialized knowledge and experience 19
necessary to resolve . . . questions of educational policy.” Id. 20
at 113. It is not for the federal court to “ch[oose] between the 21
views of conflicting experts” on such questions. Grim v. 22
Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 383 (2d Cir. 2003). 23
When an IHO and SRO reach conflicting conclusions, “[w]e defer to 24

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42
the final decision of the state authorities,” that is, the SRO’s 1
decision. A.C., 553 F.3d at 171. But the question remains: how 2
much deference? 3
In a recent opinion, this Circuit resolved the deference 4
question now posed by the parties. See M.H. v. N.Y.C. Dep’t of 5
Educ., 685 F.3d 217 (2d Cir. 2012). Synthesizing our precedent 6
on this issue, we concluded that the deference owed to an SRO’s 7
decision depends on the quality of that opinion. Reviewing 8
courts must look to the factors 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.” Id. at 244. However, 13
courts must bear in mind the statutory context and the 14
administrative judges’ greater institutional competence in 15
matters of educational policy. Id. The M.H. opinion offers 16
several illustrative examples: 17
[D]eterminations regarding the substantive adequacy of 18
an IEP should be afforded more weight than 19
determinations concerning whether the IEP was developed 20
according to the proper procedures. Decisions 21
involving a dispute over an appropriate educational 22
methodology should be afforded more deference than 23
determinations concerning whether there have been 24
objective indications of progress. Determinations 25
grounded in thorough and logical reasoning should be 26
provided more deference than decisions that are not. 27
And the district court should afford more deference 28
when its review is based entirely on the same evidence 29
as that before the SRO than when the district court has 30

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43
before it additional evidence that was not considered 1
by the state agency. 2
3
Id. Where, as in our case, the IHO and SRO disagree, the general 4
rule is that “courts must defer to the reasoned conclusions of 5
the SRO as the final state administrative determination.” Id. at 6
246. 7
However, when . . . the district court appropriately 8
concludes that the SRO’s determinations are 9
insufficiently reasoned to merit that deference, and in 10
particular where the SRO rejects a more thorough and 11
carefully considered decision of an IHO, it is entirely 12
appropriate for the court, having in its turn found the 13
SRO’s conclusions unpersuasive even after appropriate 14
deference is paid, to consider the IHO’s analysis, 15
which is also informed by greater educational expertise 16
than that of judges, rather than to rely exclusively on 17
its own less informed educational judgment. 18
19
Id. Therefore, a court must defer to the SRO’s decision on 20
matters requiring educational expertise unless it concludes that 21
the decision was inadequately reasoned, in which case a better- 22
reasoned IHO opinion may be considered instead. 23
24
III. Procedural Violations 25
In determining whether an IEP complies with the IDEA, courts 26
make a two-part inquiry that is, first, procedural, and second, 27
substantive. At the first step, courts examine whether there 28
were procedural violations of the IDEA, namely, “whether the 29
state has complied with the procedures set forth in the IDEA.” 30
Cerra, 427 F.3d at 192. Courts then examine whether the IEP was 31

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44
substantively adequate, namely, whether it was “‘reasonably 1
calculated to enable the child to receive educational 2
benefit[s].’” Id. (quoting Rowley, 458 U.S. at 206-07). 3
Substantive inadequacy automatically entitles the parents to 4
reimbursement. Procedural violations, however, only do so if 5
they “impeded the child’s right to a [FAPE],” “significantly 6
impeded the parents’ opportunity to participate in the 7
decisionmaking process,” or “caused a deprivation of educational 8
benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii); A.C., 553 F.3d at 172. 9
Multiple procedural violations may cumulatively result in the 10
denial of a FAPE even if the violations considered individually 11
do not. See Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 12
2d 656, 659 (S.D.N.Y. 2005). 13
Two specific procedural violations are common to all three 14
cases under review: In each case, the Department failed to 15
complete an adequate functional behavioral assessment (“FBA”) and 16
behavior intervention plan (“BIP”), and failed to include parent 17
counseling in the IEP. New York regulations require the 18
department to conduct an FBA for a student “whose behavior 19
impedes his or her learning or that of others.” N.Y. Comp. Codes 20
R. & Regs. tit. 8 § 200.4(b)(1)(v). The FBA includes “the 21
identification of the problem behavior, the definition of the 22
behavior in concrete terms, the identification of the contextual 23
factors that contribute to the behavior . . . and the formulation 24

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45
of a hypothesis regarding the general conditions under which a 1
behavior usually occurs and probable consequences that serve to 2
maintain it.” Id. § 200.1(r). When a student’s behavior impedes 3
his learning, a BIP must be developed with strategies to deal 4
with the problem behavior(s). Id. § 200.22(b). We have held 5
that failure to conduct an FBA is a procedural violation, but 6
that it does not rise to the level of a denial of a FAPE if the 7
IEP adequately identifies the problem behavior and prescribes 8
ways to manage it. A.C., 553 F.3d at 172. 9
The failure to conduct an adequate FBA is a serious 10
procedural violation because it may prevent the CSE from 11
obtaining necessary information about the student’s behaviors, 12
leading to their being addressed in the IEP inadequately or not 13
at all. As described above, such a failure seriously impairs 14
substantive review of the IEP because courts cannot determine 15
exactly what information an FBA would have yielded and whether 16
that information would be consistent with the student’s IEP. The 17
entire purpose of an FBA is to ensure that the IEP’s drafters 18
have sufficient information about the student’s behaviors to 19
craft a plan that will appropriately address those behaviors. 20
See Harris v. District of Columbia, 561 F. Supp. 2d 63, 68 21
(D.D.C. 2008) (“The FBA is essential to addressing a child’s 22
behavioral difficulties, and, as such, it plays an integral role 23
in the development of an IEP.”). 24

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46
The failure to conduct an FBA will not always rise to the 1
level of a denial of a FAPE, but when an FBA is not conducted, 2
the court must take particular care to ensure that the IEP 3
adequately addresses the child’s problem behaviors. See A.C., 4
553 F.3d at 172 (finding that IEP provided appropriate strategies 5
for student’s problem behaviors when it (1) addressed student’s 6
attention problem by providing a personal aide to keep child 7
focused and (2) addressed child’s “minimal” tangential and 8
fantasy speech with psychiatric and psychological services). Our 9
precedents have considered the efficacy of IEPs’ treatment of 10
behaviors in particular cases; they should not be read as 11
approving the practice of routinely omitting an FBA. New York 12
regulations do not permit this shortcut. 13
Additionally, New York regulations require that an IEP 14
provide for parent counseling and training for the parents of 15
autistic children. N.Y. Comp. Codes R. & Regs. tit. 8 §, 16
200.13(d). “Parent counseling and training means assisting 17
parents in understanding the special needs of their child; 18
providing parents with information about child development; and 19
helping parents to acquire the necessary skills that will allow 20
them to support the implementation of their child’s 21
individualized education program.” § 200.1(kk). 22
Although violating New York’s regulations, the failure to 23
include parent counseling in the IEP is less serious than the 24

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47
omission of an FBA. Whereas the FBA must be conducted in advance 1
to ensure that the IEP is based on adequate information, the 2
presence or absence of a parent-counseling provision does not 3
necessarily have a direct effect on the substantive adequacy of 4
the plan. See K.E., 647 F.3d at 811. Moreover, because school 5
districts are required by section 200.13(d) to provide parent 6
counseling, they remain accountable for their failure to do so no 7
matter the contents of the IEP. Parents can file a complaint at 8
any time if they feel they are not receiving this service. In 9
contrast, the sole value of an FBA is to assist in the drafting 10
of the IEP. Therefore the failure to conduct an FBA at the 11
proper time cannot be rectified by doing so at a later date. 12
Though the failure to include parent counseling in the IEP may, 13
in some cases (particularly when aggregated with other 14
violations), result in a denial of a FAPE, in the ordinary case 15
that failure, standing alone, is not sufficient to warrant 16
reimbursement. 17
We emphasize again that even minor violations may 18
cumulatively result in a denial of a FAPE. School districts are 19
well-advised to ensure the IEP complies with the checklist of 20
requirements specified by state regulations. 21
22
23
24

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48
IV. Specificity of Placement Decisions 1
The parents also contend that the Department committed a 2
procedural violation in each of these cases by failing to inform 3
them of the exact school at which their child would be placed at 4
the IEP meeting or in the final IEP. The Department’s practice 5
is to provide general placement information in the IEP, such as 6
the staffing ratio and related services, and then convey to the 7
parents a final notice of recommendation, or FNR identifying a 8
specific school at a later date. The parents are then able to 9
visit the placement before deciding whether to accept it. 10
The parents argue that this practice violates 20 U.S.C. § 11
1414(e), which mandates that: “Each local educational agency or 12
State educational agency shall ensure that the parents of each 13
child with a disability are members of any group that makes 14
decisions on the educational placement of their child.” Federal 15
regulations further specify that parents must be part of any 16
group making a “placement decision.” 34 C.F.R. § 300.501(c)(1). 17
We have held, however, that the term “educational placement” 18
refers “‘only to the general type of educational program in which 19
a child is placed.’” T.Y., 584 F.3d at 419 (quoting Concerned 20
Parents v. N.Y.C. Bd. of Educ., 629 F.2d 751, 756 (2d Cir. 21
1980)). “[T]he requirement that an IEP specify the ‘location’ 22
does not mean that the IEP must specify a specific school site.” 23
Id. The Department may select the specific school without the 24

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5 The parents also allege that they were entitled to participate
directly in school-specific placement decisions due to a
stipulation reached in a 1979 class action suit. See Jose P. v.
Ambach, 557 F. Supp. 1230 (S.D.N.Y. 1983). However, the
certified class in Jose P. encompassed “all handicapped children
between the ages of five and twenty-one living in New York City
. . . who have not been evaluated within thirty days or placed
within sixty days of [notification to the Department].” Id. at
1239-40. Since the plaintiffs in these cases were timely
evaluated, the Jose P. stipulation does not apply to them. See
R.E., 785 F. Supp. 2d at 43-44.
49
advice of the parents so long as it conforms to the program 1
offered in the IEP. Id. at 420. 5
2
3
Application of Relevant Law to the Three Cases 4
A. R.E. and M.E., No. 11-1266-cv 5
The parents of J.E. allege that the IEP was substantively 6
deficient because their child required 1:1 teacher support and 7
the IEP offered only 1:1 support by a paraprofessional aide. 8
They further allege procedural violations because the Department 9
failed to conduct an adequate FBA and did not include parent 10
counseling in the IEP. The district court agreed with the IHO 11
that there had been a substantive violation. It rejected the 12
SRO’s conclusion that 1:1 paraprofessional support would be 13
sufficient, saying that such a conclusion lacked evidentiary 14
support and ignored uncontradicted evidence that J.E. needed 1:1 15
teacher support. R.E., 785 F. Supp. 2d at 42. We disagree. 16
17
18

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50
1. Substantive Adequacy 1
The SRO relied heavily on retrospective testimony by Peter 2
De Nuovo, who would have been J.E.’s teacher if he had accepted 3
the Department’s placement. The SRO cited specific classroom 4
techniques that De Nuovo used, and noted that if J.E. required 5
more 1:1 instruction than his paraprofessional provided, De Nuovo 6
would have provided it. The SRO’s reliance on De Nuovo’s 7
testimony was inappropriate. At the time the parents made their 8
placement decision, they had no way of knowing, much less a 9
guarantee, that J.E. would be taught by De Nuovo as opposed to a 10
different teacher who did not provide additional 1:1 instruction 11
and did not use the same classroom techniques. The IEP provided 12
for a 6:1:1 classroom with a dedicated aide and must be evaluated 13
on that basis. 14
Despite his reliance on improper testimony, the SRO also 15
based his decision on an appropriate finding: he found no 16
evidence in the record that J.E. actually required 1:1 teacher 17
support, as opposed to 1:1 support by a dedicated aide, to make 18
educational progress. Similarly, although J.E. had been taught 19
previously with ABA, the SRO found no evidence that he could not 20
make progress with another methodology and 1:1 paraprofessional 21
support. In so finding, the SRO reversed the IHO’s conclusion, 22
based on the same evidence, that J.E. required 1:1 teacher 23
support. The adequacy of 1:1 paraprofessional support as opposed 24

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to 1:1 teacher support is precisely the kind of educational 1
policy judgment to which we owe the state deference if it is 2
supported by sufficient evidence, as is the case here. Because 3
we find this portion of the SRO’s decision to be adequately 4
reasoned, we owe it deference as the final decision of the state. 5
We therefore find that the IEP was substantively adequate to 6
provide J.E. with a FAPE. 7
2. Procedural Violations 8
J.E.’s parents also allege that the Department’s failure to 9
conduct an adequate FBA and to provide for parent counseling in 10
the IEP deprived J.E. of a FAPE. With regard to the FBA, the SRO 11
found that the IEP contained adequate strategies to address 12
J.E.’s problem behaviors. He cited the use of “a visual 13
schedule, verbal support, redirection, prompting, positive 14
reinforcement, and the provision of a 1:1 paraprofessional to 15
target the student’s scripting, fleeing, and anxiety behaviors,” 16
as well as the use of a token economy and a consistent routine. 17
SRO Opinion at 20, J.A. 757. The SRO also relied, however, on 18
retrospective testimony from De Nuovo as to how he would have 19
developed a BIP and how he would have specifically addressed 20
certain behaviors. This retrospective testimony must be 21
disregarded. In spite of this error, however, we conclude that 22
the failure to create an adequate FBA did not amount to a denial 23
of a FAPE. We note that, although they did not meet state- 24

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52
imposed criteria, an FBA and BIP were created. In addition, the 1
McCarton reports reviewed by the CSE contained unusually 2
extensive documentation of J.E.’s behaviors, and the IEP included 3
numerous specific strategies to address those behaviors, 4
including the use of a 1:1 aide to help him focus. The SRO’s 5
reliance on the foregoing information was permissible and is 6
entitled to deference. 7
The SRO’s reliance on retrospective testimony that parent 8
training would have been offered at J.E.’s placement was 9
inappropriate. However, we conclude that the failure to include 10
parent training in the IEP did not rise to the level of a denial 11
of a FAPE, even when considered cumulatively with the 12
deficiencies in the FBA. 13
We have reviewed J.E.’s parents’ other claims and find that 14
they have not demonstrated that J.E. was denied a FAPE for the 15
2008-09 school year. Accordingly, the judgment of the district 16
court is reversed. 17
18
B. R.K., No. 11-1474-cv 19
R.K.’s parents allege that R.K. was denied a FAPE because 20
(1) the Department failed to conduct an FBA despite R.K.’s 21
serious behavioral problems; (2) the IEP lacked the required 22
provisions for parent counseling and speech and language therapy; 23
and (3) the proposed placement offered insufficient 1:1 remedial 24

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53
instruction and ABA instruction. The district court adopted a 1
recommended ruling from the magistrate judge, relying on the 2
conclusions of the IHO, finding that R.K. had been denied a FAPE 3
for those reasons. We agree. 4
1. Substantive Adequacy 5
The IHO concluded that “there is no one unanimous theory as 6
to whether this student needs 1:1 or just a highly structured 7
environment. There is a consensus that the student needs an ABA 8
program, speech and language and occupational therapy.” IHO 9
Opinion at 5, J.A. 677. The SRO disagreed. He concluded that 10
the evidence only indicated that R.K. needed a small, structured 11
setting, which he found to be satisfied by a 6:1:1 placement. He 12
also found that she did not necessarily need ABA because some 13
evaluations did not specify a teaching method. The SRO also 14
cited extensive testimony from Leonilda Perez, who would have 15
been R.K.’s teacher at the proposed placement, about techniques 16
she used in the classroom. The SRO noted that Perez conducted at 17
least 25 minutes of daily 1:1 ABA instruction, including manding, 18
with each student. The SRO emphasized this testimony in 19
concluding that the placement was appropriate, finding “the 20
student would have received individual instruction and that 21
instruction would have been ABA-based.” SRO Opinion at 19. 22
The SRO’s reliance on Perez’s testimony was inappropriate. 23
R.K.’s parents had no knowledge or guarantee from the IEP that 24

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R.K. would have received a teacher who conducted daily 1:1 ABA 1
sessions with each student. The rest of the SRO’s decision on 2
this issue was based on permissible evidence. However, we agree 3
with the magistrate judge that the SRO’s conclusion is contrary 4
to the overwhelming weight of the evidence. R.K., 2011 WL 5
1131492, at *23. As described in detail by Judge Mann, the 6
majority of the reports recommended 1:1 instruction. Even those 7
reports that did not specifically recommend a 1:1 ratio 8
emphasized that R.K. needed a high level of support. Further, 9
almost all of the reports found that R.K. needed continued ABA 10
therapy. The fact that some reports did not mention a specific 11
teaching methodology does not negate the clear consensus that 12
R.K. required ABA support. However, the plan proposed in her IEP 13
offered her a 6:1:1 classroom with no dedicated aide and no 14
guarantee of ABA therapy or any meaningful 1:1 support. Because 15
the SRO’s conclusion was against the weight of the evidence and 16
thus flawed, deference to it is not warranted. But having 17
reviewed the record, we conclude that the IHO’s decision was 18
sufficiently supported, and we therefore defer to the IHO’s 19
conclusion that the IEP was not reasonably calculated to create 20
educational benefit for R.K. 21
2. Procedural Violations 22
Our conclusion that the IEP was inadequate is reinforced by 23
the CSE’s failure to create an FBA or BIP for R.K. As noted 24

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earlier, failure to conduct an FBA is a particularly serious 1
procedural violation for a student who has significant 2
interfering behaviors. The IEP itself notes that R.K. exhibited 3
“self-stimulatory behaviors which interfere with her ability to 4
attend to tasks and to socially interact with others.” IEP at 3, 5
J.A. 610. All of the reports considered by the CSE agreed that 6
R.K. had behavioral difficulties. See R.K., 2011 WL 1131492, at 7
*18 (summarizing record evidence of R.K.’s interfering 8
behaviors). The SRO concluded that an FBA was not required 9
because R.K.’s behaviors were “not unusual for a student with 10
autism” and because R.K.’s preschool teacher did not think an FBA 11
was necessary. SRO Opinion at 22, J.A. 765. However, New York 12
regulations mandate that an FBA be developed when a student has 13
behaviors that impede her learning. N.Y. Comp. Codes R. & Regs. 14
tit. 8, § 200.4(b)(1)(v). Record evidence that R.K. did have 15
such behaviors was clear and uncontradicted. The SRO’s reliance 16
on Perez’s retrospective testimony that she would have created a 17
BIP once R.K. was in her class was not appropriate and must be 18
disregarded. Accordingly, we conclude that the failure to create 19
an FBA compounded the IEP’s substantive deficiency, resulting in 20
the denial of a FAPE. Our conclusion that the IEP was inadequate 21
is buttressed by the CSE’s failure to include statutorily 22
mandated speech and language therapy and parent training in the 23
IEP. 24

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56
We further affirm the district court’s conclusion that BAC 1
was an appropriate school placement and that the equities favor 2
reimbursement. We conclude that the partial reduction of the 3
award by the IHO for perceived inadequacies in the BAC program 4
was erroneous for the reasons cited by Judge Mann. R.K., 2011 WL 5
1131492, at *26-27. Accordingly, we affirm the judgment of the 6
district court awarding full reimbursement. 7
8
C. E.Z.-L., No. 11-655-cv 9
E.Z.-L.’s parents allege that E.Z.-L. was denied a FAPE 10
because (1) the Department failed to conduct an FBA, (2) the IEP 11
did not include parent training, and (3) the proposed placement 12
was inadequate because that school did not provide its students 13
with the appropriate occupational therapy. The district court 14
affirmed the SRO and found that E.Z.-L. was not denied a FAPE. 15
We agree. 16
1. Substantive Adequacy 17
We conclude that the Department’s proposed placement was 18
substantively adequate. Unlike the other two cases before us, 19
E.Z.-L.’s parents do not seriously challenge the substance of the 20
IEP. Instead, they argue that the written IEP would not have 21
been effectively implemented at P.S. M094 because “defendant’s 22
own internal documents show that a large percentage of students 23
at P.S. M094 have been and continue to be ‘underserved’ for 24

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57
related services, particularly as to occupational therapy.” 1
Appellant’s Br. at 44-45. Our evaluation must focus on the 2
written plan offered to the parents, however. Speculation that 3
the school district will not adequately adhere to the IEP is not 4
an appropriate basis for unilateral placement. A suggestion that 5
some students are underserved cannot overcome the “particularly 6
important” deference that we afford the SRO’s assessment of the 7
plan’s substantive adequacy. See Cerra, 427 F.3d at 195. An IEP 8
need only be reasonably calculated to provide likely progress, 9
id., and after reviewing the record, we conclude that the SRO had 10
ample evidence to find that the IEP met this standard. 11
E.Z.-L.’s parents also challenge the IEP’s lack of a 12
transition plan, but they have not identified any legal 13
requirement that an IEP contain a transition plan, nor have they 14
articulated why the absence of such a plan was so significant as 15
to deny E.Z.-L. a FAPE. 16
2. Procedural Violations 17
With regard to the FBA, the SRO concluded that there was no 18
violation because the CSE, relying in part on testimony from 19
Rebecca Starr, E.Z.-L.’s teacher, found that her behavior “does 20
not seriously interfere with instruction.” IEP at 4, J.A. 556. 21
This is not a case where an FBA was required but not conducted. 22
Instead, the CSE considered the evidence of E.Z.-L.’s behaviors 23
and determined that they were not severe enough to warrant an 24

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FBA. The SRO concluded that the CSE’s decision was appropriate 1
based on the evidence. Because the record adequately supports 2
this conclusion, we defer to the SRO. 3
With regard to the absence of parent training in the IEP, 4
the SRO found no violation because training services were 5
available at the proposed placement. Although the SRO’s use of 6
retrospective evidence was inappropriate, we find that this 7
violation on its own does not establish denial of a FAPE. 8
Accordingly, we agree with the district court that E.Z.-L. 9
was not denied a FAPE for the 2008-09 school year. The judgment 10
of the district court is affirmed. 11
12
CONCLUSION 13
We reiterate our principal holding that courts must evaluate 14
the adequacy of an IEP prospectively as of the time of the 15
parents’ placement decision and may not consider “retrospective 16
testimony” regarding services not listed in the IEP. However, we 17
reject a rigid “four-corners rule” that would prevent a court 18
from considering evidence explicating the written terms of the 19
IEP. 20
In light of this holding, and for the other reasons stated 21
above, we AFFIRM the judgment of the district court in R.K. v. 22
N.Y.C. Dep’t of Educ., No. 11-1474-cv and E.Z.L. v. N.Y.C. Dep’t 23
of Educ., No. 11-655-cv, and REVERSE the judgment of the district 24
court in R.E. v. N.Y.C. Dep’t of Educ., No. 11-1266-cv. 25

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