M.W. v. N.Y.C. Dep’t of Educ. 1

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