UNITED STATES DISTRICT COURT BROOKLYN O""'Cti EASTERN DISTRICT OF NEW YORK MEMORANDUM, M.W., by his parents, S.W. and E.W., ORDER, AND JUDGMENT Plaintiffs,
- against - ll-CV-5846 NEW YORK CITY DEPARTMENT OF EDUCATION,
Defendant.
Appearances: / For the Plaintiff:
Gary S. Mayerson Tracy Spencer Walsh Mayerson & Associates NewYork,NY
For the Defendant:
Michael A. Cardozo John Bubta Corporation Counsel of the City of New York NewYork,NY
JACK B. WEINSTEIN, Senior United States District Judge:
Table of Contents I. Introduction ............................................................................................................................. 2 II. Facts and Procedural History ................................................................... " ............................. 3 A. M.W.'s Background and Education ...................................................................... 3 B. The June 2010 IEP Meeting and the Placement Offer .......................................... 3 C. IRO Proceedings ................................................................................................... 5 D. SRO Proceedings ................................................................................................... 8 E. Federal Court Proceedings .................................................................................. 10 lll. Law .................................................................................................................................... 10
Summary Judgment Standard and Standard of Review in IDEA Context.. ........ 10 A. Individuals with Disabilities Education Act and Relevant State Law ................ 11 B. 1. Individualized Education Program Requirement ............................................ 11 2. State Administrative Review ofIEP Offered .................................................. 13 3. Judicial Review ofiEP Offered ....................................................................... 14 IV. Application of Law to Facts ................................. " ............................................................ 18 A. Procedural Adequacy .......................................................................................... 18 B. Substantive Adequacy ......................................................................................... 22 C. Burden of Proof................................................................................................... 25 D. Appropriate Scope of Reimbursement ................................................................ 25 V. Conclusion ............................................................................................................................ 26
I. Introduction
S. W. and E.W. sued the New York City Department of Education (the "Department") on
behalf of their son, M.W., who has learning disabilities. They contend that the Department failed
to offer M.W. a free appropriate public education, as it was required to do by the Individuals
with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq.
Plaintiffs seek partial reversal of the decision of a state review officer ("SRO"). The
SRO found that the Department had offered M.W. an appropriate public school education. On
review, the SRO overruled an order of the impartial hearing officer ("IHO"), see id. § 1415(1),
who had granted to the parents full funding for special education in a religious school. See
Application of the New York City Department of Education, No. 11-70 ("SRO Opinion"), M.W.
et al. v. N.Y.C. Dep't of Educ., No. II-CV -5846 (E.D.N.Y. Feb. 15, 2012), CMlECF No. 11-3.
Both plaintiffs and the Department have filed motions seeking summary judgment.
Putting aside sympathy for the plaintiffs' plight and the constitutional question posed by the
IHO's inclusion of the costs of religious education in the initial reimbursement order, the facts,
the law, and the deference given to administrative expertise require that the case be dismissed.
The Department's motion is granted and plaintiffs' motion is denied.
2 •
Attached as Appendix A is a glossary of the acronyms used in this opinion and in
documents pertinent to the case.
II. Facts and Procedural History
A. M.W.'s Background and Education
M.W., a nine-year-old boy, is autistic. See Defendant's Local Rule 56.1 Statement of
Undisputed Material Facts ("Def. 56.1 Stmt.") ~ I, M.W. et al. v. N.Y.C. Dep't ofEduc., No. 11-
CV-5846 (E.D.N.Y. Mar. 14,2012), CMlECF No. 18. He also suffers from a variety of other
ailments, including Tourette's syndrome and attention deficit hyperactivity disorder. See
Findings of Fact and Decision ("IRO Opinion") 6, M.W. et al. v. N.Y.C. Dep't ofEduc., No. 11-
CV-5846 (E.D.N.Y. Feb. 15,2012), CMlECF No. 11-2. M.W. and his parents have worked with
a private therapist for years so that they can integrate into their lives lessons M. W. absorbs at
school, as well as strategies to help him regulate his behavior. See Def. 56.1 StInt. ~ 3.
The child attended the Luria Academy of Brooklyn ("Luria Academy"), a private school
that offers religious instruction, during the 2009-2010 school year. See id. fil2, 57. In January
2010, M.W.'s mother sent an email to a Luria Academy representative. In it, she stated that she
was "very interested" in M.W.'s reenrolling at Luria during the following school year, and that
she wanted to "secure a spot for him" there. Id. ~ 34. Shortly thereafter, she submitted an
application-including a tuition contract-for returning students, reenrolling M.W. at the Luria
Academy for the 2010-2011 term. See id ~ 35.
During the summer of 20 1O----since the Luria Academy offered a ten-month program-
M. W. attended the religious Simcha Day Camp, which did not offer academic instruction. See
id ~~ 38-40.
B. The June 2010 IEP Meeting and the Placement Offer
3 ,•
In Jooe 2010, a meeting was held by the committee on special education ('"CSE")
responsible for devising M.W.'s Individualized Education Program ("IEP") for the 2010-2011
school year. See id. ~ 5. Participants in the meeting (the "IEP Team") included M.W.'s mother
and his Luria Academy teacher, as well as a school psychologist and a special education teacher
from the Department. See id. ~ 6. Testimony offered before the IRO indicates that the Luria
Academy teacher actively participated in the meeting; M.W.'s mother emphasized at the meeting
the importance of in-school therapy for M.W. and the positive effect that the environment of
Luria Academy had had on her son. See id. mI 7-8. A number of program options were
considered in light ofM.W.'s needs. See id. ~ 10. M.W.'s mother had the opportunity to state
her concerns. She did not object to any aspect of the IEP at that time. See id. ,,23-24.
Ultimately recommended for M. W. by the IEP team was a placement in one of the
Department's integrated co-teaching ("leT") classes-one in which a special education teacher
assists the teacher normally placed in the classroom-on a ten-month basis; the recommended
class had a 12:1 student-teacher ratio. See id., II & n.2; IHO Opinion 8-9. The IEP Team also
recommended that M. W. receive the services of a full-time individual behavior management
paraprofessional-an educational assistant responsible for providing concentrated help to a
student-and that M.W. have (1) one thirty-minute session weekly of counseling in a group of
three, (2) three thirty-minute sessions per week of individual occupational therapy, (3) two
thirty-minute sessions weekly of individual physical therapy, (4) two thirty-minute sessions per
week of individual speech and language therapy, and (5) one thirty-minute session each week of
speech and language therapy in a group of two. See Def. 56.1 StInt." 13-14.
The proposed IEP contained goals in a number of subject areas; it offered M.W. the
opportunity to work with a variety of school personnel. See id. ~~ 17-18. The IEP Team also
4
developed a behavior intervention plan ("BIP") for M. W. to assist his teachers and
paraprofessional in meeting some of his behavioral difficulties; M. W.' s mother had not requested
such a plan. See id. " 19-22.
Offered to M.W. in July 2010 by letter was a placement in an leT class at a public school
located a short distance from the family home. Included in the letter were the school's address
and the phone number of a placement officer with whom the parents could discuss the placement
offered or request another IEP meeting. See id. ~ 25. The leT class offered to M.W. was to be
co-taught by a special education teacher with thirty years of teaching experience; she
communicates daily with the parents of her students. See id. "26-27. During the 2010-2011
school year, the school at which M.W. was offered a placement provided numerous workshops
for parents to help them deal with the educational needs of their children. See id. ~ 33.
Shortly after the placement offer was made, M.W.'s mother visited the school at which
her son had been offered a placement. See id. ~ 36. A short time after the visit, M.W.'s parents
informed the Department that they were rejecting the offered placement and that they intended to
reenroll their child at the Luria Academy for the 2010-2011 school year. See id. '37.
C. IHO Proceedings
M. W.'s parents filed an administrative complaint in July 2010 challenging the
recommended IEP and the placement offered by the Department. They sought funding for a
unilateral placement at the Luria Academy, and for the services of a paraprofessional and a
behavioral therapist. See IHO Opinion 4. An IHO was designated. In mid-September 2010, the
IHO ordered the Department, pursuant to 20 U.S.C. § 14150), to provide the parents funding that
they had requested until the conclusion of the impartial hearing. See id.
5
The parents filed an amended impartial hearing request in September 2010. They
requested an order directing the Department to reimburse them for all Luria Academy tuition
costs, as well as the costs of therapy and private paraprofessional services that they had selected
on their own. See Def. 56.1 Stmt. , 50.
An impartial hearing commenced in August 2010 and concluded in March 2011, after
twelve meetings. See id. ,51. In May 2011, the IRO Opinion was issued. See IHO Opinion 30.
The IRO concluded that the Department had failed to offer M.W. a free appropriate public
education. It stated that the Department failed to demonstrate the appropriateness of the IEP
offered. The IRO found that:
1. Numerous procedural flaws impaired the June 2010 development of the IEP, including:
a. A lack of discussion ofIEP goals, which prohibited M.W.'s mother and his Luria
Academy teacher from helping to develop them, see id. at 26;
b. The lack of consideration of the student's current placement at the Luria
Academy, see id.;
c. Predetennination of the lEP program that would be offered to M.W., which
significantly impeded the parents' opportunity to participate in the
decisionmaking process regarding the provision of a free appropriate public
education, see id.;
d. A failure by the CSE to provide M.W.'s mother and his Luria Academy teacher
with copies of CSE assessments of the student, see id.;
e. No evidence had been presented by the CSE to support the offered lCT placement
in a class larger in size than that to which M.W. was accustomed, see id. at 27;
f. No functional behavior assessment was developed, see id. at 28;
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g. The BIP was developed without parent or teacher involvement, see id; and
2. The IEP and placement offered were substantively inappropriate, according to the IHO,
because:
a. The CSE presented no reason to justify placing M.W. in a lO-month, rather than a
12-month, program, see id. at 26;
h. The Department "presented no documentary evidence to support the
appropriateness of the leT placement," especially in light ofM.W.'s delays in
developing language and social skills, see id. at 27;
c. No evidence supported the IEP's failure to include adaptive physical education
for the student, see id. at 26;
d. The IEP lacked appropriate academic goals, see id.;
e. The IEP was predetermined by the Department, see id.;
f. The IEP "omitted parent training and counseling," id. at 27;
g. The BIP developed for M.W. was inappropriate. See id. at 28.
Additionally, the IHO found that the unilateral placement by the parents at Luria
Academy, with a paraprofessional, was appropriate, as was the procurement of the services of a
therapist by the parents, and that M. W. had demonstrated social and educational progress by
virtue of his placement at Luria Academy. It was also detennined by the IHO that equitable
considerations supported the parents' claim for reimbursement; it was found that M. W.' smother
fully cooperated with the Department, and she testified that she would have considered a public
school placement had a free appropriate education been offered. See id at 28-30; Def. 56.1
Stmt,,56,
7
Ordered by the IRO was: (1) the repayment by the Department of$14,300 to the
plaintiffs for tuition at Luria Academy, with no reduction for time used for religious instruction,
(2) reimbursement to M. W. 's parents for funds expended for the services of a therapist and of a
paraprofessional who had aided M.W. during the 2010-2011 school year, (3) funding by the
Department for M.W.'s continued therapy until July 2011, and (4) reimbursement for the costs of
transportation to and from Luria Academy. See IHO Opinion 30.
D. SRO Proceedings
The Department appealed. See 20 U.S.C. § 1415(g). The SRO reversed. It was
detennined that:
1. The IHO should not have addressed the parents' claim of substantive inappropriateness
based upon the IEP's failure to recommend adaptive physical education, since that
argument was not raised in the parents' due process complaint or before the IHO at oral
argwnent, see SRO Opinion 8 (citing 20 U.S.C. § 1415(1)(3)(8»;
2. With respect to the parents' claims of procedural inadequacy,
a. Even assuming that the CSE did not discuss annual goals for M. W. in fonnulating
his IEP, the lack of discussion did not, without more, deny him a free appropriate
public education, see id. at 10;
b. M.W.'s mother and his Luria Academy teacher had the opportunity to-and did in
fact-actively participate in the IEP process, and that they had the chance to
review CSE assessments, see id.;
c. The evidence in the record did not support the IRQ's conclusion that the IEP was
predetennined, see id. at 11;
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d. The Department's failure to conduct a functional behavior assessment before
developing the BIP did not automatically render the BIP deficient, and, even
assuming that the BIP was not discussed at the June 2010 meeting, that failure did
not deny M.W. a free appropriate public education, see id. at 18-20; and
3. With respect to the IHO's determination that the IEP and placement offered were
substantively inappropriate,
a. The annual goals contained in the IEP "were aligned to the student's needs as
described in the evaluative data available to the June 2010 CSE at the time of the
meeting," id at 16; see also id. at 11-15 (describing the information available to
the CSE in June 2010);
h. The IEP's recommendation for M. W. of a class larger in size than the one his
mother had requested-to be supplemented by the services of a full-time behavior
management paraprofessional-was appropriate and reasonably calculated to
enable him to receive educational benefits, given the related services
recommended for him, see id. at 16-17;
c. The Department's failure to provide for parent training in the IEP did not deny
M. W. a free appropriate education-though it did not comport with state
regulations-since the SIP provided for parent collaboration with M. W.'s teacher
and paraprofessional, the school at which M.W. was offered a placement provided
parent workshops and in-school counseling for parents, and M. W.' s parents had
received training from a private therapist for years, see id. at 20-22; and
d. The Department's offer of a 10-month program did not constitute a denial of a
free appropriate public education, since there was insufficient evidence in the
9 •
record to suggest that M. W. would have experienced substantial regression during
the summer months. See id at 22-23.
The SRO also concluded that the IHO's award of transportation services was not
supported by the hearing record. See id at 23.
Since it was detennined that the Department had offered M. W. a free appropriate public
education for 2010-2011, the SRO did not consider whether the parents' unilateral placement
was appropriate or whether equitable considerations favored the parents. Accordingly, the
portion of the IHO Opinion requiring reimbursement for Luria Academy tuition and the services
of the privately-hired therapist was "annulled." Also reversed was the portion of the IHO
opinion requiring payment for transportation services. See id. at 24.
E. Federal Court Proceedings
In December 2011, M.W.'s parents timely commenced an action in this court, seeking
reversal of the SRO Opinion. See 20 U.S.C § 1415(i)(2)(B); N.Y. Educ. Law § 4404(3)(a). In
February 2012, they filed a motion for summary judgment; the Department filed its own
summary judgment motion the following month.
Argument on the summary judgment motions was heard in May 2012.
III. Law
A. Summary Judgment Standard and Standard of Review in IDEA Context
Summary judgment in the IDEA "context involves more than looking into disputed issues
offact; rather, it is a pragmatic procedural mechanism for reviewing administrative decisions."
T.P. ex rei. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per
curiam) (internal quotation marks omitted). A district court must base its decision on the
preponderance of the evidence and give due weight to the outcome of the state administrative
10
proceedings. fd. (citing 20 U.S.C. § 1415(i)(2)(C)(iii»; see. e.g., Cerra v. Pawling Cent. Sch.
Dist., 427 F.3d 186, 191 (2d Cir. 2005) (describing the "substantial deference" federal courts
owe "to state administrative bodies on matters of educational policy"), Deference to the result of
the state administrative proceedings "is particularly warranted when the district court's decision
is based solely on the administrative record," Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d
105, 113 (2d Cir. 2007).
If there is a conflict between the original and appellate administrative rulings, deference
is due to the state appellate decision. "If a final state detennination conflicts with an earlier
decision, the earlier decision may be afforded diminished weight." Id. at 113 0.2; see also Karl
ex rei. Karl v. Bd. ofEduc. of Geneseo Cent. Sch. Dist., 736 F.2d 873, 877 (2d Cir. 1984) (noting
that federal courts must "defer to the final decision of the state authorities," even if "the
reviewing authority disagrees with the hearing officer").
While the parties may label a dispositive motion filed in an IDEA action one for
summary judgment, it is in substance an appeal from a state administrative detennination. See
Lillbask ex rei. Mauc/aire v. Conn. Dep't ofEduc., 397 F.3d 77, 83 n.3 (2d Cir. 2005). The court
is not ruling in a typical summary judgment setting. It must detennine whether the
administrative record and any additional evidence produced demonstrate compliance with the
IDEA. See Wall ex reI. Wall v. Mattituck-Cutchogue Sch. Disf., 945 F. Supp. SOl, 508
(E.D.N. Y. 1996).
B. Individuals with Disabilities Education Act and Relevant State Law
1. Individualized Education Program Requirement
"The IDEA is the most recent Congressional enactment in an ambitious federal effort to
promote the education of handicapped children," Gagliardo, 489 F.3d at 107 (internal quotation
11
marks omitted). Enacted to effectuate a variety of goals, the statute is intended, inter alia, "to
ensure that all children with disabilities have available to them a free appropriate public
education that emphasizes special education and related services designed to meet their unique
needs and prepare them for future education, employment, and independent living," and "to
ensure that the rights of children with disabilities and parents of such children are protected." 20
U.S.C. § 1400(d)(l)(A)-(B).
"Under the IDEA, states receiving federal funds are required to provide "all children with
disabilities' a 'free appropriate public education.'" Gagliardo, 489 F.3d at 107 (quoting 20
U.S.C. § 1412(a)(1)(A)). "To meet these requirements, a school district's program must provide
special education and related services tailored to meet the unique needs of a particular child, and
be reasonably calculated to enable the child to receive educational benefits." Id. (internal
quotation marks omitted).
Services must be administered according to an IEP, which must be reviewed-and
revised, if necessary-at least once each year. See 20 U.S.C. § 1414(d)(4).
The IEP is the "centerpiece of the IDEA's educational delivery system." D.D. ex reI.
VD. v. N. Y.c. Ed. ofEduc., 465 F.3d 503, 507 (2d Cir. 2006) (internal quotation marks omitted).
It is "a written statement that 'sets out the child's present educational performance, establishes
annual and short-term objectives for improvements in that performance, and describes the
specially designed instruction and services that will enable the child to meet those objectives. '"
Id. at 507-08 (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)).
Parents who are dissatisfied with the IEP and placement offered are permitted to
unilaterally place their child in a private school and then seek the reimbursement of tuition and
other expenses from the relevant local educational agency. See 20 U.S.C. § 1412(a)(10)(C).
12
They do so, however, at their own financial risk. See, e.g., A. C. ex rei. M C. v. Bd of Educ. of
the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009).
2. State Administrative Review of IEP Offered
Pursuant to the IDEA, parents "are specifically entitled to request a due process hearing
in order to present complaints as <to any matter relating to the identification, evaluation, or
educational placement ofthe[ir] child, or the provision of a free appropriate public education. ",
Cave v. East Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008) (quoting 20
U.S.c. § 1415(b)(6)(A».
"New York has opted for a two-tier administrative system for review ofIEPs. First, an
impartial hearing officer is selected from a list of certified officers and appointed by the local
board of education or the competent state agency to conduct the initial hearing and issue a
written decision. That decision can then be appealed to [an SRO] of the New York Education
Department." Id.; see also N. Y. Educ. Law § 4404(1 )-(2). "On1y after exhaustion of these
procedures has an aggrieved party the right to file a suit in a federal or state court .... Failure to
exhaust the administrative remedies deprives the court of subject matter jurisdiction." Cave, 514
F.3d at 245; see also 20 U.S.C. § 1415(i)(2).
The IDEA provides that an SRO's review of an IRO decision is de novo; the "officer
conducting such review shall make an independent decision upon completion of such review."
20 U.S.C. § 1415(g)(2) (emphasis added). The relevant New York statute, echoing in substance
the standard of review set forth in the IDEA, provides that an SRO reviewing the decision of an
IRO "shall review and may modify, in such cases and to the extent that the review officer deems
necessary, . .. any determination o/the impartial hearing officer relating to the detennination of
the nature of a child's handicapping condition, selection of an appropriate special education
13
program or service and the failure to provide such program[,] and require such board to comply
with the provisions of such modification." N.Y. Educ. Law § 4404(2) (emphasis added).
This system of review-i.e., the provision of an appellate-level administrative adjudicator
possessing the power to modify or set aside the orders of the initial hearing officer without
deferring to them-is consistent with general principles of federal administrative law. See, e.g.,
Richard E. Levy & Robert L. Glicksman, Agency-Specific Precedents, 89 Tex. L. Rev. 499, 548
(2011) (noting that in "many agency adjudications, an initial hearing is conducted by an
[administrative law judge] or other hearing officer even though the agency itself retains de novo
decisional authority").
Pursuant to the court's request at oral argument on the summary judgment motions, letter
briefs, providing additional infonnation regarding this issue, were submitted. The authorities
cited therein make it clear that the SRO's review ofthe IHO's detenninations is essentially de
novo. In analyzing a two-tiered administrative review process similar to that of New York, the
Court of Appeals for the Third Circuit reached a conclusion supporting the analysis in the instant
case. The Third Circuit stated that:
We ... hold that appeals panels reviewing the ... findings of hearing officers in two-tier schemes ... exercise plenary review, except that they should defer to the hearing officer's findings based on credibility judgments unless the non- testimonial, extrinsic evidence in the record would justify a contrary conclusion or unless the record read in its entirety would compel a contrary conclusion.
Carlisle Area Sch. v. Scott P., 62 F.3d 520, 529 (3d Cir. 1995) (Becker, J.). The Third Circuit's
conclusion on this point is consistent with the relevant provision of the IDEA, discussed briefly
above. See 20 U.S.C. § 1415(g)(2).
3. Judicial Review of IEP Offered
14
As noted above in Part III.A, supra, in the IDEA context, substantial deference is given
by federal courts to the final state administrative determination. See, e.g., Bd. ofEduc. v.
Rowley, 458 U.S. 176,206-08 (1982). This is so, at least in part, due to the fact that federal
judges generally "lack the specialized knowledge and experience necessary to resolve persistent
and difficult questions of educational policy." Id at 208 (internal quotation marks omitted).
Nonetheless, the federal judiciary does have a role in reviewing state administrative
determinations in the IDEA context. See generally 20 U.S.C. § 1415(i). Compliance with the
IDEA is established-that is, a free appropriate public education is offered-if (1) the procedural
requirements set forth in the statute are complied with, and (2) the student's IEP is reasonably
calculated to enable the child to receive educational benefits. See, e.g., Cerra v. Pawling Cent.
Sch. Dist., 427 F.3d 186, 192-95 (2d Cir. 2005).
Parents challenging a proposed IEP bear the burden of persuasion as to both the
inappropriateness of the IEP offered and the appropriateness of private services obtained. See
T.P. ex rei. s.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per
curiam). To determine whether parents are entitled to reimbursement pursuant to the IDEA,
courts engage in a multistep review process. A. C. ex rei. M C. v. Bd. of Educ. of the Chappaqua
Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009).
First, courts are to "examine whether the state has complied with the procedures set forth
in the IDEA." Id. This inquiry is "no mere formality," since "adequate compliance with the
procedures prescribed w[ill] in most cases assure much if not all of what Congress wished in the
way of substantive content in an IEP." Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129
(2d Cir. 1998) (internal quotation marks omitted). "However, it does not follow that every
procedural error in the development of an IEP renders that IEP legally inadequate under the
15
IDEA." A.C., 553 F.3d at 172 (internal quotation marks and bracketing omitted). Procedural
errors will not render an IEP inadequate in cases in which the child's educational opportunities
were not affected and if the parents were not deprived of the chance to participate meaningfully
in the development of the IEP. See 20 U.S.C. § 1415(f)(3)(E)(ii); Cerra v. Pawling Cent. Sch.
Dist., 427 F.3d 186, 192-94 (2d Cir. 2005); cf JD. ex rei. JD. v. Pawlet Sch. Dist., 224 F.3d 60,
69-70 (2d Cir. 2000). Procedures required by the IDEA in the development ofiEPs include:
An opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision ofa free appropriate public education to [the] child, and to obtain an independent educational evaluation of the child.
20 U.S.C. § 1415(b)(1); see also Cerra, 427 F.3d at 192. Additionally, since the IDEA
"incorporates some but not all state law concerning special education," Bay Shore Union Free
Sch. Dist. v. Kain, 485 F.3d 730, 734 (2d Cir. 2007), courts are to consider in their procedural
analysis whether the development of the IEP and the resulting program complied with state law.
See A.C., 553 F.3d at 172 & n.!.
Second, after reviewing a school district's actions for procedural compliance, courts are
to "consider whether the IEP developed through the [IDEA's] procedures is reasonably
calculated to enable the child to receive educational benefits." Cerra, 427 F.3d at 192 (internal
quotation marks and bracketing in original omitted). A school district offers a free appropriate
public education "by providing personalized instruction with sufficient support services to pennit
the child to benefit educationally from that instruction." Bd. ofEduc. v. Rowley, 458 U.S. 176,
203 (1982). "A school district is not, however, required to furnish every special service
necessary to maximize each handicapped child's potential." Cerra, 427 F.3d at 195 (internal
quotation marks omitted). "Rather, a school district fulfills its substantive obligations under the
16
IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP
affords the student an opportunity greater than mere trivial advancement." Id. (internal quotation
marks omitted). In determining substantive adequacy, courts must also weigh heavily the
statute's requirement that the education of disabled children take place in a minimally restrictive
environment; "there is a strong preference for children with disabilities to be educated, to the
maximum extent appropriate, together with their non-disabled peers." A. c., 553 F.3d at 173
(internal quotation marks omitted); see 20 U.S.c. § 1412(a)(5).
A "district court must examine the record for any objective evidence indicating whether
the child is likely to make progress or regress under the proposed plan. Because administrative
agencies have special expertise in making judgments concerning student progress, deference is
particularly important when assessing an IEP's substantive adequacy." Cerra, 427 F.3d at 195
(internal quotation marks and citation omitted).
If it is determined that the IEP offered was procedurally and substantively adequate, "the
State has complied with the obligations imposed by Congress and the courts can require no
more." Id. at 192 (internal quotation marks omitted). If, however, the IEP is procedurally or
substantively deficient, the court must determine "whether the private schooling obtained by the
parents is appropriate to the child's needs." Id. "Parents seeking reimbursement for a private
placement bear the burden of demonstrating that the private placement is appropriate, even if the
proposal in the IEP is inappropriate. Nonetheless, parents are not barred from reimbursement
where a private school they choose does not meet the IDEA definition of a free appropriate
public education." Frank G. v. Ed. oj Educ. oj Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)
(citation omitted). Thus,
[a]n appropriate private placement need not meet state education standards or requirements. For example, a private placement need not provide certified special
17 •
education teachers or an IEP for the disabled student. In addition, parents may not be subject to the same mainstreaming requirements as a school board. . .
Subject to the foregoing exceptions, the same considerations and criteria that apply in determining whether [a] School District's placement is appropriate should be considered in determining the appropriateness of the parents' placement. Ultimately, the issue turns on whether a placement-public or private-is reasonably calculated to enable the child to receive educational benefits.
Id (internal quotation marks and citation omitted).
When it is determined that the IEP offered was deficient, and that the parents' unilateral
placement was appropriate, the "district court enjoys broad discretion in considering equitable
factors relevant to fashioning relief." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112
(2d Cir. 2007); see also Florence Cnty. Sch. Dist. Four v. Carter ex rei. Carter, 510 U.S. 7,16
(1993); Frank G., 459 F.3d at 363-64.
IV. Application of Law to Facts
A. Procedural Adequacy
Two principal challenges are leveled in plaintiffs' summary judgment papers at the
procedure by which M.W.'s IEP was developed. First, the parents contend that the Department's
failure to develop a functional behavior assessment deprived M. W. of his right to a free
appropriate public education. See Plaintiffs-Appellants' Memorandum of Law in Support of
Their Motion for Modified De Novo Review and For Reinstatement of the Impartial Hearing
Officer's Award ("PI. Mem.") 13-15, M.W. et a!. v. N.Y.C. Dep't of Educ., No. II-CV-5846
(E.D.N.Y. Feb. 15,2012), CMIECF No. 13. Second, plaintiffs assert that the Department's
proposed IEP was predetermined. See id at 25.
The SRO determined that neither of these procedural challenges required reimbursement.
See SRO Opinion 10-11 (discussing predetermination), 19 (discussing the lack of a functional
18
behavior assessment). Deference is due to these detenninations. In any event, as noted below,
the SRO's conclusions were substantively correct.
It appears from the record-and the Department concedes-that no functional behavior
assessment was conducted prior to the June 2010 meeting of the eSE. See id at 19; Defendant's
Memorandum of Law in Support of Its Motion for Summary Judgment, Motion to Strike, and in
Opposition to Plaintiffs' Motion for Modified De Novo Review ("Def. Mem.") 13, M.W. et al. v.
N.Y.C. Dep't ofEduc., No. 11-CV-5846 (E.D.N.Y. Mar. 14,2012), CMlECF No. 17.
New York law in effect at the time of the June 2010 meeting required that individual
evaluations of disabled students be perfonned prior to eSE meetings; these evaluations were
required to include, for students "whose behavior impedes his or her learning or that of others," a
functional behavior assessment. N.Y. Compo Codes R. & Regs. tit. 8, § 200.4(b)(1)(v). A
functional behavior assessment is defined as "the process of detennining why the student
engages in behaviors that impede learning and how the student's behavior relates to that
environment"; the end-product of that evaluative process is required to include "the identification
of the problem behavior, the definition of the behavior in concrete tenns. the identification of the
contextual factors that contribute to the behavior ... and the fonnulation of a hypothesis
regarding the general conditions under which a behavior usually occurs and the probable
consequences that serve to maintain it." Id. § 200.I(r).
The Court of Appeals for the Second Circuit has stated that the violation of this
regulation in the development of an IEP "does not compel the conclusion" that the IEP
developed was "legally inadequate," so long as the government complies with its obligation-in
the case of a child whose behavior impairs his or her learning or that of others-to '''consider the
use of positive behavioral interventions and supports, and other strategies, to address that
19
behavior.''' A.C ex rei. MC v. Bd. aJEduc. aJthe Chappaqua Cent. Sch. Dist., 553 F.3d 165,
172 (2d Cir. 2009) (quoting 20 U.S.C. § 1414(d)(3)(B)(i». Noted in A.C was the fact that '~he
sufficiency of [a school district's] strategies for dealing with [disruptive] behavior is precisely
the type of issue upon which the IDEA requires deference to the expertise of the administrative
officers." ld (internal quotation marks omitted).
The IEP and BIP developed for M. W. demonstrate that the Department, despite its failure
to conduct a functional behavior assessment, complied with the IDEA. The IEP noted that
positive reinforcement was needed to deal with M.W,'s behavior and that a BIP was required;
the BIP developed and attached to the IEP included strategies that were to be utilized to
encourage positive behavior on the part of the student. See Individualized Education Program 4,
19, M.W. etal. v. N.Y.C. Dep't ofEduc., No. II-CV-5846 (E.D.N.Y. Apr. 19,2012), CMlECF
No. 26-21.
The Department's failure to conduct a functional behavior assessment was not
detrimental to M.W. This lapse provides no basis for the conclusion that M.W. was deprived a
free appropriate public education.
Plaintiffs' other contention to which they devote substantial argument~that the IEP
developed for M. W. was predetermined-similarly provides no basis for reimbursement. The
transcript of the IHO hearing indicates that all members of the IEP team, including M.W. 's
mother, participated actively in the development ofM.W:s IEP. See Tr. of Dec. 16,2010 Hr'g
382,383,415-16,428,432,434, M.W. et al. v. N.Y.C. Dep't ofEduc., No. II-CV-5846
(E.D.N.Y. Apr. 19,2012), CMlECF No. 26-15. The hearing record also indicates that a number
of potentially appropriate program options were considered for M.W. No one precluded M.W:s
mother from participating fully in the June 2010 meeting. See id at 435-37; Tr. of Mar. to,2011
20 •
Hr'g 1088, 1098-99, M.W. et al. v. N.Y.C. Dep't of Educ., No. II-CV-5846 (E.D.N.Y. Apr. 19,
2012), CMlECF No. 26-19. In short, the fact that the Department participants in the June 2010
meeting were prepared for the discussion does not mean that the rEP developed for M. W. was
predetermined. See, e.g., Nack ex rei. Nack v. Orange City Sch. Dist., 454 F.3d 604, 610-11 (6th
Cir.2006). On the contrary, it was a sign of the seriousness with which they viewed their task.
It should also be noted that plaintiffs' predetermination argument is belied by the fact that
M.W,'s mother, who attended the June 2010 IEP meeting, is a certified special education
teacher. See Def. 56.1 Stmt., 4. Given that expertise, it is likely that she took an active role in
discussing the child's IEP. M.W.'s mother failed to appear in court to be questioned about her
participation in the IEP meeting. This failure violated the court's order requiring her to appear.
See Order, M.W. et aI. v. N.Y.C. Dep'tofEduc., No. II-CV-5846 (E.D.N.Y. Mar. 27, 2012),
CMlECF No. 20. The two family members who did appear for the plaintiffs had knowledge only
of financial details and not of the development of the child's IEP. Plaintiffs' claim that M.W.'s
mother was not afforded the chance to participate in the development of the child's IEP is
rejected as contrary to the facts.
At oral argument, plaintiffs raised for the first time the procedural argument that the
Department had failed had to conduct a threshold evaluation ofM.W. See N.Y. Compo Codes R.
& Regs. tit. 8, § 200.4(b). Even assuming without deciding that this argument has not been
forfeited by plaintiffs' failure to raise it in their moving papers, see, e.g., In re Monster
Worldwide, Inc. Sec. Litig., 251 F.R.D. 132, 137 (S.D.N.Y. 2008), it is without merit. The
SRO's opinion indicates that substantial infonnation regarding M.W.'s background was
available to and was utilized by the CSE at the June 2010 meeting. See SRO Opinion 11-12.
21 •
Any failure to conduct an additional evaluation did not affect M. W.' s educational opportunities
Or impair his parents from participating in the development of the IEP.
B. Substantive Adequacy
Plaintiffs challenge the substantive adequacy of the IEP, offering three principal
arguments. They contend that the IEP offered was substantively inadequate since (1) the
Department failed to offer a 12-month program for M.W., (2) the IEP did not provide for parent
counseling and training. and (3) the class in which M.W. was offered a placement was too large
in size for his needs. None of these contentions have merit.
With respect to plaintiffs' first argument, the relevant New York regulation provides that
students "shall be considered for 12-month special services andlor programs in accordance with
their need to prevent substantial regression," if certain criteria are met. N.Y. Compo Codes R. &
Regs. tit. 8, § 200.6(k)(l). "Substantial regression" is defined to mean "a student's inability to
maintain developmental levels due a loss of skill or knowledge during the months of july and
August of such severity as to require an inordinate period of review at the beginning of the
school year to reestablish and maintain IEP goals and objectives mastered at the end of the
previous school year." Id. § 200.1(aaa).
Plaintiffs' argument that the Department erred by not offering M.W. a 12-month
educational program is belied by their own voluntary emollment ofM.W. in a private lO-month,
rather than a 12-month, program after their rejection of the IEP. See Def. 56.1 Stmt." 37-38.
Also weighing against plaintiffs' position is the fact that M. W.'s mother explicitly stated at the
IHO hearing that reimbursement for a 10-month program, rather than 12-month program, was
sought. See Tr. of Mar. 10, 2011 Hr'g 11 09. Given plaintiffs' actions indicating that a 10-month
22 •
program was appropriate for M.W., deference to the SRO's detennination on this point is
particularly appropriate. See SRO Opinion 22-23.
Notable with respect to this argument of plaintiffs is the fact that the child was sent by the
parents for two months to a summer camp, the Simcha Day Camp, during the summer 0[2010.
See Def. 56.1 Stmt. , 39. At the hearing in this court, it was argued by the plaintiffs that the
child did receive some extra educational help at the camp. See Tr. of May 15, 2012 Hr'g.
Assuming this was the case, it does not suffice to show that M. W. would have experienced
substantial regression without such instruction, or that the Luria Academy's ten-month program
was more efficacious than the public school's ten-month program.
There is no substantial evidence in the administrative record suggesting that M.W. would
have experienced substantial regression during the summer months had the parents accepted the
offered IEP program. See SRO Opinion 23. Plaintiffs had the burden of persuasion on this
point. See, e.g., TP. ex reI. s.P. v. Mamaroneck Union Free Sch. Dis!., 554 F.3d 247, 252 (2d
Cir. 2009) (per curiam).
The IEP's failure to recommend parent counseling and training also does not provide a
basis for reimbursement. New York's regulations require that in the development ofIEPs for
autistic children, "[p ]rovision shall be made for parent counseling and training ... for the
purpose of enabling parents to perfonn appropriate follow-up intervention activities at home."
N.Y. Compo Codes R. & Regs. tit. 8, § 200.13(d). IEPs are required to state "the extent to which
the student's parents will receive parent counseling and training ... , when appropriate." ld
§ 200.4(d)(2)(v)(b)(S).
The Court of Appeals for the Second Circuit has ruled that the failure of an IEP to
provide for parent counseling and training does not necessarily render an IEP substantively
23
deficient. TY ex rei. TY v. N.YC. Dep'( of Educ., 584 F.3d 412, 419 (2d Cir. 2009). M.W.'s
IEP states that "[t]he teacher, para[professional] and parent[s] will collaborate to implement and
reinforce the desired behaviors," Individualized Education Program 19, M.W. et al. v. N.Y.C.
Dep't ofEduc., No. 11-CV-5846 (E.D.N.Y. Apr. 19,2012), CMlECF No. 26-21. The school at
which M.W. was offered a placement provided numerous workshops and other opportunities to
help train parents and to assist them in dealing with their child's educational needs. See Def.
56.1 StInt., 33. Given the opportunities that were offered for the parents, and considering the
mother's professional ability to evaluate and take advantage of them, deference is appropriate to
the SRO's conclusion on this point, i.e., that the failure of the IEP to explicitly provide for parent
training did not render it substantively inadequate. See SRO Opinion 20-22.
Plaintiffs contend additionally that the class in which M.W. was offered a placement was
"way too large ... (especially considering that he would not have a one-to-one aide)." PI. Mem.
22. The IEP proposed that M.W. receive the services oftwo teachers and a full-time
paraprofessional. That the size of the class in which M. W. was offered a placement was larger
than his parents desired does not mean that the placement was not reasonably calculated to
provide educational benefits. The extensive extra help to be offered individually and in small
groups to M.W. was well designed to meet his educational needs. Deference is due to the SRO's
conclusion that the IEP's recommended ICT class did not deny M. W. a free appropriate public
education. See SRO Opinion 16.
Raised for the first time at oral argument was the contention that the Department failed to
offer M. W. an education in a minimally restrictive environment, i. e., one in which he would be
educated with non-disabled children to the maximum extent appropriate. See 20 U.S.C.
§ 1412(a)(5). Assuming that this argument was not forfeited by the failure to raise it in the
24 •
./
summary judgment papers, it is without merit. The IEP offered to M.W. provided for his
placement in a class of23 students, one-third of whom had IEPs. See SRO Opinion 16. The
Department complied with the statute's mainstreaming requirement. See P. ex reI. Mr. & Mrs.
P. v. Newington Bd of Ed, 546 F.3d 111, 120-21 (2d Cir. 2008).
C. Burden of Proof
Plaintiffs' last argument raised in their summary judgment papers-that the SRO
improperly shifted the burden of proof onto them from the Department-is not an attack on the
adequacy of the IEP offered. In any event, it is without merit. "The burden of proof in an
administrative hearing challenging an IEP is properly placed upon the party seeking relief."
Schaffer ex reI. Schaffer v. Weast, 546 U.S. 49, 62 (2005); see also Gagliardo v. Arlington Cent.
Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).
Since M.W. and his parents challenged the IEP offered, they bore the burden of
persuasion. That the IHO initially decided the dispute adversely to the Department does not
mean that the burden of proving adequacy shifted to the Department when an appeal was taken
to the SRO,just as an appeal in a judicial proceeding does not serve to shift the burden of proof
to an appellant with respect to a claim on which the appellee bore that burden in the trial court.
In any event, were the burden placed on the Department, the outcome of the instant case
would remain the same.
D. Appropriate Scope of Reimbursement
At the hearing held on the summary judgment motions, plaintiffs admitted that a portion
of their request for tuition reimbursement was improperly sought. See Tr. of May 15,2012 Hr'g.
This inappropriate request included expenditures for religious education. In view of the
25
dismissal of the case, there is no need to detennine whether the other educational expenditures
made by the parents were justified.
V. Conclusion
Plaintiffs' contentions are without merit. The IEP offered to M.W. was devised in a
procedurally sound fashion. It was reasonably calculated to provide the statutorily-required
educational benefit.
Given these conclusions, it need not be detennined whether the parents' unilateral
placement ofM.W. at the Luria Academy was appropriate, or whether equitable considerations
support the parents' claim for reimbursement. Nevertheless, the record suggests that the equities
favor the Department and not the plaintiffs.
Plaintiffs' motion for summary judgment is denied. The defendant's motion for
summary judgment is granted, and its motion to strike is denied. No costs or disbursements are
awarded.
SO ORDERED.
Jack B. Weinstein Senior United States District Judge
Date: June 11,2012 Brooklyn, New York
26 Appendix A, No. Il-CV-5846
APPENDIX A: GLOSSARY OF ACRONYMS M_W_ ET AL. v. NEW YORK CITY DEPARTMENT OF EDUCATION NO. ll-CV-5846
• BIP: Behavior Intervention Plan. See 20 U.S.C. § 1414(d)(3)(B)(i); N.Y. Compo Codes R. & Regs. tit. 8, § 200.4(d)(3)(i).
• CSE: Committee on Special Education. See N.Y. Educ. Law § 4402(l)(b)(I).
• FAPE: Free Appropriate Public Education. See 20 U.S.c. § 1401(9). (This acronym was used extensively in the briefs and at oral argument, but it is not used in the court's memorandum, order, and judgment.)
• ICT: Integrated Co-Teaching. See N.Y. Compo Codes R. & Regs. tit. 8, § 200.6(g).
• IDEA: The Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.
• IEP: Individualized Education Program. See 20 U.S.C. § 1414(d).
• IRO: Impartial Hearing Officer. See 20 U.S.C. § 1415(1); N.Y. Educ. Law § 4404(1).
• SRO: State Review Officer. See 20 U.S.C. § 1415(g); N.Y. Educ. Law § 4404(2).