UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------------x
P.L. and M.L., individually and on behalf of M.L.,
Plaintiffs, MEMORANDUM & ORDER -against- 12-CV-2097 (PKC) (VMS)
NEW YORK CITY DEPART OF EDUCATION.,
Defendant.
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PAMELA K. CHEN, United States District Judge:
Plaintiffs P.L. and M.L., individually and on behalf of M.L. (“Plaintiffs”), bring this
action against the Defendant New York City Department of Education (the “DOE”) pursuant to
the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. §1400 et seq.
Specifically, Plaintiffs seek reimbursement of M.L.’s 2010-11 tuition at the Imagine Academy, a
private school for students with autism spectrum disorders in Brooklyn. Having exhausted the
state administrative process, which terminated in the DOE’s favor, Plaintiffs now seek review of
those proceedings in this Court. The parties have cross-moved for summary judgment based
solely on the state administrative record.
Because the DOE has not carried its burden of demonstrating that the program it
proposed for M.L. was reasonably calculated to enable M.L. to make meaningful educational
gains, the DOE did not provide M.L. with a free and appropriate public education. Therefore,
Plaintiffs’ motion is granted and the DOE’s motion is denied.
BACKGROUND
I. The Legal Framework
The facts surrounding the instant litigation are better understood after a review of the
procedures and remedies available to IDEA-qualified students and their parents.
Under the IDEA, New York state is required to provide disabled children with a free and
appropriate public education (“FAPE”). M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725
F.3d 131, 135 (2d Cir. 2013). “To ensure that qualifying children receive a FAPE, a school
district must create an individualized education program (“IEP”) for each [disabled] child.” R.E.
ex rel. J.E v. New York City Dep’t of Educ., 694 F.3d 167, 175 (2d Cir. 2012). An IEP is a
written statement that “describes the specially designed instruction and services that will enable
the child to meet stated educational objectives and is reasonably calculated to give educational
benefits to the child.” M.W., 725 F.3d at 135 (citing R.E., 694 F.3d at 175) (internal quotation
marks omitted); see also 20 U.S.C. § 1414(d). In New York, local Committees on Special
Education (“CSE”) are responsible for determining whether a child is entitled to educational
services under the IDEA and, if so, developing an appropriate IEP. N.Y. Educ. Law §
4402(1)(b)(1); M.W., 725 F.3d at 135; R.E., 694 F.3d at 175.
If parents believe that the recommendations in the prepared IEP will not provide their
child with a FAPE, those parents may unilaterally place the child in a private school or program
at the parents’ own expense and later seek tuition reimbursement. M.W., 725 F.3d at 135
(citation omitted); see also 20 U.S.C. §1400(d)(1)(A). In New York, a parent may initiate the
tuition reimbursement process by filing a due process complaint with the DOE. M.W., 725 F.3d
at 135. The due process complaint commences administrative proceedings that initially involves
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a hearing before an Impartial Hearing Officer (“IHO”). Id. (citing 20 U.S.C. §§ 1415(b)(6), (f);
N.Y. Educ. Law § 4404(1)).
The IHO applies the three-pronged Burlington/Carter test, under which: “(1) the DOE
must establish that the student’s IEP actually provided a FAPE; should the DOE fail to meet that
burden, the parents are entitled to reimbursement if (2) they establish that their unilateral
placement was appropriate and (3) the equities favor them.” Id. (citing R.E., 694 F.3d at 184-
85).1 “An IHO’s decision may, in turn, be appealed to a State Review Officer (“SRO”), who is
an officer of the State’s Department of Education.” M.H. v. New York City Dep’t of Educ., 685
F.3d 217, 225 (2d Cir. 2012). Any party aggrieved by the SRO’s final administrative decision
has the right to seek review of the decision by bringing a civil action in federal court. See
M.W.,725 F.3d at 135-36; 20 U.S.C. § 1415(i)(2)(A).
II. Relevant Facts
The material facts in this case, drawn primarily from the administrative record, are not in
dispute. M.L. has been classified by the DOE’s CSE as a student with autism who is entitled to
receive appropriate special education and related services under the IDEA. (Pl. 56.1 ¶ 1-2.)2 A
2007 private psychological investigation found that M.L.’s “speech-language, socialization, and
communication impairments ‘clearly’ impeded his ability to function at home and at school.”
(SRO Dec.3 at 2.) Beginning in November 2007 and through the 2010-11 school year, M.L.’s
1 The Burlington/Carter test is derived from a pair of Supreme Court cases: Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359, 369-70 (1985) and Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 12-13 (1993). 2 Citations to “Pl. 56.1” refer to Plaintiffs’ Statement of Material Facts pursuant to Local Rule 56.1. (Dkt. 20.) Citations to “Def. 56.1” refer to the DOE’s Statement of Material Facts pursuant to Local Rule 56.1 (Dkt. 23). 3 Documents from the administrative record have been filed with the Court under seal. 3
parents unilaterally placed M.L. at Imagine Academy, a private school for autistic students that
has not been approved by the New York State Commissioner of Education as a school with
which districts may contract to instruct students with disabilities.4 (Def. 56.1 ¶ 7; Pl. 56.1 ¶ 4.)
While at Imagine Academy, M.L. received 1:1 classroom instruction. (IHO Dec. 6.)
In May 2010, when M.L. was thirteen years old (Pl. 56.1 ¶ 17), the CSE developed an
IEP for M.L. for the 2010-11 school year. (Def. 56.1 ¶ 8.) In drafting the IEP, the CSE relied on
various data regarding M.L.’s levels of performance at Imagine Academy, as well as the input of
M.L.’s parents, and his teacher, speech-language pathologist, occupational therapist, and
principal from the 2009-2010 school year. (Id. ¶¶ 10-11.)
M.L.’s speech-language pathologist found that M.L.’s language and conversational skills
were improving, but certain disruptive behaviors remained, such as a propensity to spit, scratch,
or pinch when frustrated with a task, and recommended that M.L. receive continued speech-
language therapy throughout the next 12-month period. (SRO Dec. 3.) M.L.’s occupational
therapist similarly noted certain improvements in M.L.’s behaviors, such as being more relaxed
and able to enjoy physical challenges, but recommended the provision of twice weekly 45-
minute sessions of 1:1 occupational therapy (“OT”) and twice weekly 45-minute sessions of
group OT to work toward improved body awareness, self-regulation, and bilateral hand usage.
(Id. at 4.) M.L.’s classroom teacher reported the same types of behavioral problems as noted by
the speech-language pathologist, and reported that M.L. needed consistent supervision and
encouragement in the classroom. (Id.) The teacher recommended that M.L. would benefit from
continued provision of 1:1 instruction at Imagine Academy. (Id.)
4 Neither party has raised an issue about M.L.’s IEP for the years prior to the 2010-11 school year. It is, in any event, not directly relevant given that Plaintiffs seek reimbursement only for the 2010-11 school year. 4
The IEP that the CSE developed in May 2010 recommended a 12-month program with
placement in a class at a specialized school consisting of a 6:1:1 student-to-teacher-plus-
paraprofessional classroom ratio, along with twice weekly 1:1 OT, twice weekly small-group
OT, three times weekly 1:1 speech-language therapy, and twice weekly small group speech-
language therapy. (Id. at 5.)
In a letter dated June 25, 2010, the school district (the “District”) summarized the
recommendations of the May 2010 CSE, and notified M.L.’s parents of the public school to
which M.L. was assigned for the 2010-11 school year. (Id. at 5.) On August 18, 2010, M.L.’s
mother wrote a letter to the CSE advising that she had yet to receive notice of the assigned
school for M.L. (Id.) In addition, the letter stated that M.L.’s parents were rejecting the May
2010 IEP as deficient in its evaluation and the goals set for M.L. (Id.) It also notified the
District of the parents’ intent to re-enroll M.L. at Imagine Academy for the 2010-11 school year,
and requested an impartial hearing before the IHO to seek the reimbursement of the costs of
M.L.’s tuition. (Id.)
Shortly thereafter, M.L.’s parents received a Final Notice of Recommendation offering
M.L. a placement in a 6:1:1 classroom at P. 141@35K (“P.S. 141”), a local public school. (IHO
DOE Ex. 3.) M.L.’s mother visited P.S. 141 on September 14, 2010. (SRO Dec. 5.) By letter
dated September 28, 2010 to the CSE, M.L.’s parents stated that the proposed school was “too
overwhelming,” and that M.L. would have difficulty navigating the stairs frequently during the
day. (Id. at 5.) The letter also noted that M.L.’s social and emotional needs differed from those
of the students in the recommended program. (Id.) M.L.’s parents restated their rejection of the
May 2010 IEP on the grounds that it did not meet the social, emotional, or behavioral needs of
M.L., nor did the assigned school have sufficient support to meet them. (Id.) Finally, the parents
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reiterated that they planned to enroll M.L. at Imagine Academy, and seek reimbursement through
an impartial hearing. (Id. at 6.)
M.L. attended Imagine Academy for the entire 2010-11 school year. (Pl. 56.1 ¶ 57.)
M.L.’s parents assert that they paid the required $77,500 tuition amount in full. (IHO Dec. 3.)
III. Due Process Complaint Notice
In their due process complaint notice dated February 16, 2011, M.L.’s parents contended
that the DOE denied M.L. a FAPE during the 2010-11 school year. (SRO Dec. 6.) M.L.’s
parents raised the followings issues with respect to the May 2010 IEP: (1) the IEP’s description
of M.L.’s present levels of performance were insufficient to provide an adequate baseline from
which to determine M.L.’s progress, “as there is minimal to no information regarding [M.L.’s]
academic and living skills;” (2) the lack of evaluation of M.L.’s academic and living skills
resulted in the development of insufficient goals, particularly with respect to academics,
independent living skills and socialization; (3) the District failed to provide for parent training
and counseling in the IEP, in violation of State regulations; and (4) despite developing a
behavioral intervention plan (“BIP”) to address M.L.’s aggressive behaviors, the CSE failed to
conduct a functional behavioral assessment (“FBA”) to determine the causes of these behaviors.
(IHO Parents’ Ex. 1 at 1-2.)
With respect to the insufficiency of the proposed placement (P.S. 141), M.L.’s Parents
contended that the “school is too large and overwhelming given [M.L.]’s speech and language
needs;” M.L. would have difficulty navigating the stairs; and the students in the recommended
class had different needs than M.L. (Id. at 2.) The parents also pointed out that the proposed
program could not meet M.L.’s behavioral needs, specifically:
“The program does not offer sufficient 1:1 instruction and support to address [M.L.]’s delays. Further, the parent was informed that [M.L.]’s related
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service mandates as per the May 14, 2010 IEP would [not] be met at the recommended placement. The program would require [M.L.] to travel independently with a Metro Card to alternate placements in order to receive related services. This is inappropriate given [M.L.]’s delays.”
(Id.)
As a proposed resolution, the Parents requested tuition reimbursement for the
2010-11 school year at Imagine Academy. (Id.)
IV. IHO Proceedings
The IHO held a hearing over the course of four days in June and July 2011. (IHO Dec. 2)
The DOE presented two witnesses: (1) Benjamin Shu (“Mr. Shu”), a special education teacher
assigned to the CSE who conducted an observation of M.L. and who participated in the CSE
review; and (2) Grace Schaefer (“Ms. Schaefer”), the teacher of the class in which M.L. would
have been placed at P.S. 141 had M.L.’s parents accepted the IEP. (Id.) Mr. Shu was the sole
DOE witness to testify concerning the formulation of the IEP. (Id. at 5.)
Applying the Burlington/Carter test, the IHO conducted a thorough analysis regarding
prong one, namely whether the services offered by the DOE to M.L. in the IEP were adequate.
(Id at 4-8.) In summarizing her conclusions that were favorable to the DOE, the IHO noted that
the testimony of M.L.’s parents indicated that M.L.’s present levels of academic performance
and learning characteristics were accurately depicted in the May 2010 IEP. (Id. at 6.) The IHO
further found that goals for M.L. were discussed at the May 2010 CSE meeting, and noted that
the attending parent did not object at that time, and that Imagine Academy’s principal deemed
the goals appropriate. (Id.) She further found unavailing the parents’ claim that the May 2010
IEP was deficient because it did not provide for parent training and counseling, noting that some
parent training was provided by the proposed assigned school. (Id.)
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Notwithstanding those peripheral findings in favor of the DOE, with respect to the
primary substantive defect alleged, the IHO concluded that the DOE failed to establish that the
program it proposed, namely 6:1:1, was reasonably calculated to enable M.L. to make
meaningful educational gains. (Id. at 7.) In support of this finding, the IHO wrote:
“The CSE acknowledged that [M.L.] had substantial deficits including severe global delays in expressive and receptive language as well as various aggressive and elopement behaviors. (Ex. 5) Although the IEP fails to specify [M.L.]’s academic levels, [Imagine Academy] staff testified that they were at pre- kindergarten to kindergarten levels for reading, math and listening comprehension. (T. 414-417) That testimony was not contested. [M.L.] has been receiving [a] one to one program at [Imagine Academy]. [The DOE] acknowledged that [Imagine Academy] staff informed the CSE that [M.L.] continued to require one to one instruction.”
(Id.)
Importantly, with respect to the weight of her conclusion, the IHO noted that “the CSE
virtually relied upon [Imagine Academy] to prepare a substantial portion of the IEP[,] which it
incorporated into the IEP without alternation.” (Id.) The CSE nevertheless rejected Imagine
Academy’s ultimate recommendation that M.L. receive 1:1 supervision. (Id.) The IHO found
that the documents considered by the CSE did not provide a basis to conclude that the program it
had recommended for M.L. would be appropriate. (Id.) In analyzing those documents, the IHO
found that:
“[The] Educational Progress Report (Ex. 8) notes behaviors including spitting, scratching, pinching and kicking for a variety of reasons including escape from challenging work, attention and frustration[,] and the use of these behaviors to express himself. It also notes leaving the room without permission and unresponsiveness to adult instructions to stop[,] as well as difficulty in remaining attentive during work sessions. The Speech and Language Annual review (Ex. 9) confirms this. The only psychological evaluation before the CSE (Ex. 6) was conducted in October 2007[,] and does not contradict these reports.”
(Id.)
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In her determination that M.L. required one-to-one support, the IHO noted the persuasive
testimony of Dr. Zingervic, M.L.’s occupational therapist (T. 277); Ms. Heyman, M.L.’s speech
therapist (T. 311); Ms. Coles, the Applied Behavior Analysis (“ABA”) Director at Imagine
Academy (T. 462, 469-471); Ms. Chem, the principal of Imagine Academy principal (T. 398-
399, 403, 414); and M.L.’s mother (T. 356-357). (IHO Dec. 8.) The decision also noted that the
IEP recommended 1:1 instruction for M.L.’s summer program. (Id.)
Mr. Shu was the only DOE witness at the hearing who had been involved in the
preparation of M.L.’s IEP. With respect to the IEP, the IHO concluded that, “[a]lthough Shu
observed [M.L.], the observation was done solely when [M.L.] was receiving one to one ABA
instruction,” and Mr. Shu did not observe M.L. in any other situation in preparation for the CSE
review. (Id.) Moreover, the IHO noted the significance of the CSE’s conclusion having been
based solely on Mr. Shu’s report and the fact that Mr. Shu’s last observation of a 6:1:1 class had
occurred five years earlier.5 Further, Mr. Shu acknowledged “he had virtually no experience
teaching autistic students (T. 107)[,] and there was no testimony concerning the participation and
experience of the other DOE CSE member.” (Id.) Finally, although the Imagine Academy staff
reported, and the CSE agreed, that M.L.’s behaviors interfered with learning, no FBA was
prepared to determine the extent and circumstances of M.L.’s behavioral issues. (Id.) As such,
there was no support for the CSE’s determination that M.L.’s behaviors could be adequately
addressed in a 6:1:1 program. (Id.)
Accordingly, on September 15, 2011, the IHO ruled that the DOE had failed to offer
M.L. a FAPE on the basis that the DOE had failed to establish that the IEP’s proposed 6:1:1
program was reasonably calculated to enable M.L. to make meaningful educational gains, and
5 The 6:1:1 class that Mr. Shu observed was not one in which M.L. was enrolled. 9
was therefore “substantively defective.” (Id.) As such, the IHO did “not consider the other
claims made by the parents concerning the IEP and the recommended placement.” (Id.)
With respect to the second prong of the Burlington/Carter test, the IHO concluded that
Imagine Academy was an appropriate placement. She found that evidence had shown that the
Imagine Academy provides a “highly structured program” for M.L., primarily because he was
receiving “one to one instruction all day.” (Id. at 9.) Moreover, M.L.’s “expressive and
pragmatic language needs were addressed. (T. 295, 297, 308) [M.L.]’s vocational and
independent living needs were addressed (T. 407, 477-478) as were physical and sensory needs
(T. 257-275). Parent training and counseling were provided. (T. 361, 409).” (IHO Dec. 9.) In
fact, the “CSE acknowledged that progress was made in the 2010-11 school year (T. 33, 89, Ex.
D),” which was also confirmed by the evidence. (IHO Dec. 9 (citing T. 463-464, 466-467, 477-
478, Exs. 14, 16).)
During the hearing before the IHO, the DOE’s “sole claim” with respect to Imagine
Academy being an inappropriate placement was that M.L. required a 12-month program, which
would include school during the summer, and Imagine Academy only provides a 10-month
program. (Id.) Though the IHO agreed that M.L.’s need for a 12-month program was “well
established,” she found that this fact did not provide a basis for concluding that the 2010-11
program at Imagine Academy was inappropriate because by the time M.L.’s parents received the
DOE placement offer, a 10-month program was sufficient to cover the remainder of the 2010-11
school year. (Id. at 10.)
With respect to the third prong of the Burlington/Carter test, the IHO found that the
equities in the case favored Plaintiffs. In support of this conclusion, the IHO wrote:
“There has been no claim that the parents failed to cooperate with the CSE in the development of the IEP. There is no claim or evidence that the parents were
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informed that utilization of the summer program even absent a DOE placement offer would foreclose reimbursement for a unilateral placement that was not a 12 month program. Further, the parent credibly testified that in past years the DOE has provided placement offers late or not at all (T. 341, 343) and I conclude that her failure to make an inquiry was not unreasonable and does not indicate a lack of cooperation. I also note that the parent’s credible claim that she did not receive the IEP until sometime in July (T. 366) has not been disputed or explained by the DOE. Further, it is well established that the parents’ preference for a private school is not a bar to reimbursement. Accordingly, I conclude that equitable considerations do not warrant denial of reimbursement in the instant matter.”
(Id.) Therefore, the IHO held that Plaintiffs were entitled to reimbursement from the DOE for up
to $77,500 for the tuition they paid to Imagine Academy for the 2010-11 school year. (Id. at 11.)
V. SRO Proceedings
The DOE appealed the IHO’s ruling to the SRO via verified petition on October 20,
2011, requesting the IHO’s award of tuition reimbursement be vacated. (SRO Pleadings,
Verified Peition.)
The SRO issued a decision, dated December 29, 2011, reversing the IHO’s ruling and
holding that the DOE had offered M.L. a FAPE for the 2010-11 school year, and therefore
rejected Plaintiffs’ request for tuition reimbursement. (SRO Dec. 21) The SRO found that the
evidence in the hearing record showed that the CSE’s recommended 6:1:1 program addressed
M.L.’s needs. (Id. 20-21.) The SRO also concluded that the annual goals and short-term
objectives listed in M.L.’s IEP were appropriate and, for the most part, measurable, and that no
procedural violations significant enough to impede M.L.’s right to a FAPE had been raised by
the CSE’s actions. (Id. at 13-14.) The SRO noted that, as a result of his findings, he did not
need to reach the second and third Burlington/Carter prongs, namely whether Imagine Academy
was an appropriate placement for M.L. or whether equitable considerations supported the
Plaintiffs’ claim for reimbursement. (Id. at 21.) The SRO’s findings are discussed in greater
detail in the Discussion Section infra.
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Plaintiffs filed the instant action in this Court appealing the SRO’s determination on
April 27, 2012. (Dkt. 1.)
DISCUSSION
I. Standard of Review
Although the parties seek relief via cross-motions for summary judgment, such a motion
in the IDEA context is “in substance an appeal from an administrative determination, not a
summary judgment.” Lillbask ex rel. Mauclaire v. Conn. Dept't of Educ., 397 F.3d 77, 83 n. 3
(2d Cir. 2005) (quotation omitted); accord M.W., 725 F.3d at 138 (“Summary judgment in the
IDEA context . . . is only a pragmatic procedural mechanism for reviewing administrative
decisions.”) (internal quotation marks and citation omitted)). The district court must conduct an
independent judicial review to determine whether the SRO’s decision is supported by “the
preponderance of the evidence,” based on the record from the administrative proceedings. Grim
v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380 (2d Cir. 2003) (citing 20 U.S.C. §
1415(i)(2)(B)); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).
“The role of the federal courts in reviewing state educational decisions under the IDEA is
circumscribed.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)
(quotation marks omitted). “While the district court must base its decision ‘on the
preponderance of the evidence, it must give due weight to the administrative proceedings,
mindful that the judiciary generally lacks the specialized knowledge and experience necessary to
resolve persistent and difficult questions of educational policy.” A.C. ex rel. M.C. v. Bd. of
Educ., 553 F.3d 165, 171 (2d Cir. 2009) (internal citations, quotations, and alterations omitted).
Accordingly, a federal court may not “substitute [its] own notions of sound educational policy
for those of the school authorities.” M.W., 725 F.3d at 139. “[D]eterminations regarding the
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substantive adequacy of an IEP should be afforded more weight than determinations concerning
whether the IEP was developed according to the proper procedures.” M.H., 685 F.3d at 244.
Where, as here, the IHO and the SRO reach conflicting decisions, federal courts generally
“must defer to the reasoned conclusions of the SRO as the final state administrative
determination.” M.H, 685 F.3d at 246. However, the deference owed to the SRO’s decision
“depends on the quality of that opinion.” R.E., 694 F.3d 167, 189. Specifically, the district court
must consider “whether the decision being reviewed is well reasoned, and whether it was based
on substantially greater familiarity with the evidence and the witnesses than the reviewing
court.” R.E., 694 F.3d at 189 (quoting M.H., 685 F.3d at 244). Where an SRO’s decision is
insufficiently reasoned to merit the deference to which it is normally entitled, it is appropriate for
the district court “to consider the IHO’s analysis, which is also informed by greater educational
expertise than that of judges, rather than to rely exclusively on its own less informed educational
judgment.” M.H., 685 F.3d at 246.
II. Plaintiffs’ Appeal
Plaintiffs argue that M.L’s IEP was both procedurally and substantively defective.
“In determining whether an IEP complies with the IDEA, courts make a two-part inquiry
that is, first, procedural, and second, substantive.” R.E., 694 F.3d at 189-90. The procedural
inquiry requires courts to examine “whether the state has complied with the procedures set forth
in the IDEA.” Id. at 190 (quoting Cerra v. Pawling Cent Sch. Dist., 427 F.3d 186, 191 (2d Cir.
2005)). Procedural violations warrant reimbursement only if, individually or cumulatively, they
“‘impeded the child’s right to a [FAPE],’ ‘significantly impeded the parents’ opportunity to
participate in the decisionmaking process,’ or ‘caused a deprivation of educational benefits.’” Id.
(quoting 20 U.S.C. § 1415(f)(3)(E)(ii)).
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Substantive inadequacy, on the other hand, “automatically entitles the parents to
reimbursement.” Id. The substantive inquiry requires courts to “examine whether the IEP was
substantively adequate, namely, whether it was reasonably calculated to enable the child to
receive educational benefits.” Id. at 190. The IDEA does not “guarantee any particular level of
education,” or “require that a child be provided with the optimal programmatic alternative.” C.F.
ex rel. R.F. v. New York City Dep't of Educ., 746 F.3d 68, 72 (2d Cir. 2014) (internal quotation
marks and citation omitted). Instead, it requires “selection of a program that provides a basic
floor of opportunity, and that is likely to produce progress, not regression.” Id. (internal
quotation marks and citation omitted).
A. Procedural Violations
Plaintiffs allege three procedural violations: (1) the CSE, in formulating M.L.’s IEP, did
not consider sufficient evaluative material; (2) the CSE did not conduct an FBA before M.L.’s
BIP was drafted; and (3) the IEP did not contain a recommendation for parent training or
counseling. The Court addresses these arguments in turn below.
1. The SRO’s Finding that the CSE Based the IEP on Sufficient Evaluative Data
Plaintiffs argue that the CSE, in formulating M.L.’s IEP, did not consider sufficient
evaluative data and/or did not properly consider the evaluative data available to it. (Dkt. 21 (“Pl.
Br.” 8.) Specifically, Plaintiffs contend that the CSE committed procedural error by: (i) relying
in part on a 2.5 year-old psychological evaluation of M.L., and failing to conduct a reevaluation;
and (ii) failing to conduct an assessment of M.L. to determine M.L.’s preferences and interests
for transitioning into adulthood.
First, with respect to the psychological examination, reexamination is required only if (i)
the school district determines that one is warranted, (ii) M.L.’s parent or teacher requests one, or
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(iii) the evaluation in question is three years old or older. 8 N.Y. Comp. Codes R. & Regs. tit.
(“N.Y.C.R.R.”) § 200.4(b)(4). Here, there is no indication that any party requested reevaluation
(see DOE Ex. 13), and the evaluation in question was only 2.5 years old at the time of its use by
the CSE. Where that is the case, the determination regarding whether reevaluation is warranted
is, pursuant to the rule, expressly left to the school district. Id. (“A [CSE] shall arrange for an
appropriate reevaluation of each student with a disability if the school district determines that . . .
improved academic achievement and functional performance of the student[ ] warrant a
reevaluation . . . .”). Although the additional evaluation certainly could have been useful in
preparation of the IEP, the DOE was “within its discretion to determine, as it did, that no
additional evaluation or testing was necessary.” E.E. v. New York City Dep’t of Educ., 13-CV-
06709 (LGS), 2014 WL 4332092, at *7 (S.D.N.Y. Aug. 21, 2014).
Second, Plaintiffs allege that the CSE’s failure to conduct a vocational assessment caused
M.L.’s IEP to be procedurally inadequate because “essential pre-vocational and independent
living skills were not addressed at all in M.L.’s IEP.” (Pl. Br. 9.) New York regulations require
that covered “students . . . who are age 12 and over . . . receive an assessment . . . to determine
vocational skills, aptitudes, and interests.” 8 N.Y.C.R.R. § 200.4(b)(6)(viii). Plaintiffs are
correct; the CSE’s failure to conduct such an assessment for M.L., who was 13 at the time the
IEP was prepared, constituted a procedural violation.
Nevertheless, the failure to conduct a vocational assessment, in and of itself, does not rise
to the level of a FAPE deprivation. Where, as here, the CSE has sufficient information about the
student to determine the student’s educational needs, “[t]he absence of one single measure
should not itself render an IEP invalid, so long as the CSE team otherwise has sufficient
15
City Dep’t of Educ., 13-CV-01131 (AJN), 2014 WL 1618383, at *7 (S.D.N.Y. Mar. 26, 2014)
(citation and quotation marks omitted). Here, at least six evaluations were considered by the
CSE; ample information regarding M.L. was available. (SRO Dec. 2-4) Plaintiffs’ argument
really boils down to the position that because the IEP is substantively defective, the CSE must
not have had enough information to properly assess M.L. As discussed below, the Court agrees
that the IEP is substantively defective, but this defect stems from a misreading of the available
evidence, not from the lack of the vocational assessment. Because the CSE is only required to
“review existing evaluation data,” 20 U.S.C. § 1414(c)(1), and “[a]ny additional assessments
need only be conducted if found necessary to fill in gaps in the initial review of existing
evaluation data,” S.F. v. New York City Dept. of Educ., 11-CV-870 (DC), 2011 WL 5419847,
*10 (S.D.N.Y. Nov. 9, 2011), the Court finds that the lack of vocational assessment did not result
in the denial of a FAPE.
2. Failure to Conduct an FBA
The IDEA requires that a school district developing an IEP for “a child whose behavior
impedes” his learning must “consider the use of positive behavioral interventions and supports,
and other strategies, to address that behavior.” 20 U.S.C. § 1414(d)(3)(B)(i). In New York, this
rule is implemented through an FBA, which is an evaluative document that includes “the
identification of the contextual factors that contribute to the behavior . . . and the formulation of a
hypothesis regarding the general conditions under which a behavior usually occurs and probable
consequences that serve to maintain it.” 8 N.Y.C.R.R. ¶ 2001(r). An FBA is required under
New York’s regulations when a student exhibits behaviors that “impede[] his or her learning or
that of others.” 8 N.Y.C.R.R § 200.4(b)(1)(v). However, failure to conduct an FBA does not
16
amount to a procedural violation of the IDEA where the IEP sets forth other means to address
M.L.’s problematic behaviors. A.C., 553 F.3d at 172.
Here, M.L.’s disruptive behaviors were well-known and were discussed at the CSE
meeting. Imagine Academy provided a draft of the BIP, which was then “review[ed] and
modif[ied]” by the CSE. (SRO Dec. 15-17; Tr. 50, 434, 437.) The IEP included a BIP that
adequately described M.L.’s behaviors that interfere with learning, the behavior changes that
were expected, strategies to be used to change the behavior and supports that would be employed
to help M.L., including continuing provision of related services, a classroom paraprofessional,
and small classroom environment. (DOE Ex. 5 at 18; Tr. 437.) Or, as the SRO put it, “the BIP
contained information about [M.L.]’s behavior that interfered with learning that typically would
be part of an FBA and BIP.” (SRO Dec. 16.)
In response to that position, Plaintiffs claim that the BIP is defective because it does not
identify “antecedent events” to problem behaviors or “intervention strategies” in sufficient detail.
(Pl. Br. 16-17.) However, the information in the BIP was provided by M.L.’s own teachers, and
it is clear from the testimony at the impartial hearing that the strategies were clear enough to
provide a prospective teacher with enough guidance to implement them. (Tr. 189-90.) In fact,
the IHO, despite finding for the Plaintiffs overall, concluded that the lack of an FBA was not an
issue because the “CSE provided a BIP which included descriptive information provided by
[Imagine Academy] concerning [M.L.]’s behaviors, the causes of those behaviors and various
strategies.” (IHO Dec. 6.) There were no objections to the BIP at the IEP meeting, nor did any
party present (including M.L.’s parent, P.L.) state that further evaluations were needed. Indeed,
Imagine Academy’s principal testified that she agreed with the BIP (although she did not feel it
could be implemented in a 6:1:1 setting). (See DOE Ex. 13; Tr. 420, 437). Ultimately, though it
17
may be considered a “serious procedural violation,” given the circumstances of this case, the
failure to conduct an FBA did not rise to level of denial of a FAPE. R.E., 694 F.3d at 190 (“The
failure to conduct an FBA will not always rise to the level of a denial of a FAPE, but when an
FBA is not conducted, the court must take particular care to ensure that the IEP adequately
addresses the child’s problem behaviors.”) (citing A.C., 553 F.3d at 172).
3. Lack of Parent Training and Counseling
The failure to provide for parent training and counseling constituted a procedural
violation, but did not rise to the level of denial of a FAPE. Under New York regulations,
provision for parent counseling and training is to be made in an IEP, “for the purpose of enabling
parents to perform appropriate follow-up intervention activities at home.” 8 N.Y.C.R.R. §
200.13. “The recommended program and services shall . . . indicate . . . the extent to which the
student’s parents will receive parent counseling and training . . . when appropriate.” Id. at §
200.4(d)(2)(v)(b)(5). These regulations define such counseling and training as “assisting parents
in understanding the special needs of their child; providing parents with information about child
development; and helping parents to acquire the necessary skills that will allow them to support
the implementation of their child’s individualized education program.” Id. at § 200.1(kk).
The Second Circuit, however, as with the failure to conduct an FBA described above, has
instructed that the lack of a provision in an IEP for parent counseling and training does not
inherently result in the denial of a FAPE. In particular:
Although violating New York’s regulations, the failure to include parent counseling in the IEP is less serious than the omission of an FBA. . . . [T]he presence or absence of a parent-counseling provision does not necessarily have a direct effect on the substantive adequacy of the plan. Moreover, because school districts are required by section 22.13(d) to provide parent counseling, they remain accountable for their failure to do so no matter the contents of the IEP. Parents can file a complaint at any time if they feel they are not receiving this service. . . . Though the failure to include parent counseling in the IEP may, in
18
some cases (particularly when aggregated with other violations), result in a denial of a FAPE, in the ordinary case[,] that failure, standing alone, is not sufficient to warrant reimbursement.
R.E., 694 F.3d at 191 (citations omitted).
Here, the IHO rejected the parents’ claim that the May 2010 IEP resulted in the denial of
a FAPE because at least some parent training was provided programmatically by the
recommended placement. (IHO Dec. 6.) The SRO likewise concluded that, “[a]lthough the
provision of parent counseling and training was not incorporated into the May 2010 IEP, the
hearing record reflects that the [IHO] correctly found it was provided programmatically.” (SRO
Dec. 18 (citing IHO Dec. at 6; Tr. 59, 193-94).) After listing some of the specific parent training
programs that would have been provided “programmatically,” the SRO “declined to find that the
district’s failure to incorporate [parent training] into the May 2010 IEP resulted in a denial of a
FAPE to [M.L.].” (Id.)
As an initial matter, the IHO’s and SRO’s consideration of the programmatic parent
training constitutes improper reliance on “retrospective testimony.” See R.E., 694 F.3d at 186
(holding that services beyond those listed in the IEP may not be considered in a
Burlington/Carter analysis.). Specifically, the testimony that parent counseling would have been
provided “programmatically,” or could have been provided based on parent requests is precisely
the kind of testimony may not be used to cure any deficiency on the face of the IEP. See id.; see
also, e.g., P.S. v. New York City Dep’t of Educ., 13-CV-04772 (LGS), 2014 WL 3673603, at *9
(S.D.N.Y. July 24, 2014) (holding that the SRO’s reliance on testimony that parent counseling
was “programmatically” embedded constituted improper “retrospective evidence”).
Nevertheless, the failure to provide for parent counseling and training does not rise to the
level of a FAPE violation. This is largely because school districts are required to provide
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counseling for parents of covered children regardless of whether the counseling is specified in
the IEP. See R.E., 694 F.3d at 191 (“Moreover, because school districts are required . . . to
provide parent counseling, they remain accountable for their failure to do so no matter the
contents of the IEP.”); see also M.W., 725 F.3d at 142 (same). As such, even though the failure
to provide parent counseling constitutes a procedural violation, it does not warrant tuition
reimbursement. See M.W., 725 F.3d at 141-42; T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist.,
752 F.3d 145, 170 (2d Cir. 2014) (holding that “parent counseling and training as part of [the
student’s] . . . program was not a sufficiently serious procedural violation to deny [the student] a
FAPE.”).
4. Cumulative Procedural Errors
In sum, the three procedural flaws with the IEP found by the Court, i.e., the absence of a
vocational assessment, the failure to conduct an FBA, and the lack of provisions for parent
counseling, neither separately nor cumulatively rise to the denial of a FAPE. See, e.g., R.E, 694
F.3d at 193 (concluding that IEP’s failure to provide for parent counseling and deficiencies in
FBA did not cumulatively amount a violation of the IDEA). However, “the presence or absence
of procedural violations informs [the Court’s] determination of substantive adequacy” even when
the violations themselves do not deny a FAPE. C.F., 746 F.3d at 81; see also N.S. v. New York
City Dep't of Educ., 13-CV-7819 (VEC), 2014 WL 2722967, at *10 (S.D.N.Y. June 16, 2014)
(noting that procedural violations “inform” the Court’s analysis of the substantive adequacy of
the IEP.”) Further, any potential prejudice to Plaintiffs based on the above finding is mooted by
the Court’s finding, discussed below, that the IEP was substantively inadequate, which
“automatically entitles the parents to reimbursement.” R.E., 694 F.3d at 190.
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B. Substantive Violations
Plaintiffs contend that the IEP was substantively inadequate in three respects: (1) the
IEP’s proposed staffing ratio of 6:1:1 would not provide M.L. the necessary individualized
attention; (2) the educational needs, goals, and objectives listed in M.L.’s IEP were insufficient;
and (3) the specific placement offered to M.L. at P.S. 141 would not have been appropriate.
Having reviewed the parties’ arguments and the administrative record as a whole, the Court
agrees with Plaintiffs that the DOE failed to show that the proposed 6:1:1 class was reasonably
calculated to enable M.L. to make meaningful educational gains, and therefore the DOE did not
provide M.L. with a FAPE for the 2010-11 school year.
1. Burlington/Carter Prong One: Inadequacy of the 6:1:1 Proposed Placement
Plaintiffs’ primary challenge to the appropriateness of the IEP is ground in their assertion
that the proposed placement of M.L. into a 6:1:1 classroom would not provide M.L. with the
appropriate learning environment required by the IDEA, and thus fails to provide M.L. with a
FAPE. (Pl. Br. 1.)
The hearing before the IHO included myriad testimony and evidence regarding whether
M.L. required one-on-one instruction throughout the day. The witnesses included Imagine
Academy faculty that had instructed and observed M.L. over the course of the 2010-11 school
year, and their testimony uniformly supported the Plaintiffs’ position that M.L. requires 1:1
instruction.
Ms. Heyman, M.L,’s speech therapist, testified that she had provided speech-language
therapy to M.L. for three and a half years, almost entirely in a 1:1 environment, and that M.L.
“really benefited” from the 1:1 instruction. (T. 293, 311.) Ms. Heyman described a particular
instruction session at which one of her staff members had been absent, resulting in there being
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one more student than teacher present at the session. (T. 311.) She testified that M.L. had a
“really hard time” when he was in the 2:1 (two students, one teacher) situation, and walked off
when not receiving individual instruction. (Id.)
Dr. Zingervic, the Director of OT at Imagine Academy, provided occupational therapy to
M.L. three times per week for the 2010-11 school year. (Tr. 254-56.) Dr. Zingerevich testified
that his therapy sessions with M.L. were always 1:1, with a single exception in which the session
was 2:1. (Tr. 277.) At the 2:1 session, Dr. Zingerevich testified that M.L. was “not attentive at
all” and would not participate in the session; Dr. Zingerevich attributed that behavior to the lack
of 1:1 instruction. (Id.)
Ms. Coles, the Applied Behavior Analysis Director at Imagine Academy, testified that
she worked with M.L. three to five times per week, and that M.L. worked “effectively with a
one-on-one approach,” (Tr. 459-62), but progress was much more challenging in a group larger
than one-on-one. (T. 462-470.) She further testified that one “goal” for M.L. is to have him
“move on from the one-on-one,” but, though they have tried, she and her colleagues had not been
able to successfully transition M.L. to 2:1 instruction. (Tr. 469-70.) Ms. Coles stated that during
the attempt, M.L. exhibited problematic behavior such as spitting, hitting and throwing himself
on the floor when he was receiving 2:1 instruction. (Tr. 470-71.)
Ms. Chem, the Principal of Imagine Academy, testified that she had known M.L. for four
years, was formerly M.L.’s primary speech pathologist, and that for the 2010-11 school year she
observed him every day during lunch period. (Tr. 390.) Ms. Chem testified that she did not
think M.L. would learn in a classroom environment without 1:1 instruction due to his tendency
toward distraction. (Tr. 399.) She testified that his distractibility was such that he could not
work independently within a group for more than a minute. (Tr. 438.) She stated that staff at
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Imagine Academy believed that placing M.L. in a 6:1:1 instruction setting was not advisable, as
too much of M.L.’s time would be spent “not engaged in productive, active learning.” (Tr. 414.)
On the basis of this record, and as discussed more fully supra, the IHO concluded that the
[DOE] had not sufficiently established that placing M.L. in a 6:1:1 classroom was appropriate,
and therefore it had not offered M.L. a FAPE. The SRO reversed the IHO’s opinion, finding that
the 6:1:1 classroom setting recommended in the IEP was reasonably calculated to enable M.L. to
receive educational benefits, and therefore that the DOE had provided M.L. with a FAPE. (SRO
Dec. 18-21.)
Marshalling the strongest argument for the SRO’s conclusion, his decision appears to
have relied on two pieces of evidence, although not equally: (1) marginally on Mr. Shu’s
testimony that M.L.’s needs and goals were similar to other students in the proposed 6:1:1 class;
and (2) largely on Ms. Schaefer’s testimony about how she would have implemented the goals
and strategies in M.L.’s IEP at P.S. 141. Mr. Shu’s anemic testimony and Ms. Schaefer’s
hypothetical—and substantially impermissible—testimony, as discussed below, were patently
insufficient to support the SRO’s reversal.
Mr. Shu was the only witness who had met M.L. to testify in support of placing M.L. in
a 6:1:1 setting. (Tr. 58; IHO Ex. 4.) However, Mr. Shu, who was employed by the CSE, based
his recommendation on a thirty-minute assessment of M.L. which took place on May 4, 2010.
(Id.) During this assessment, Mr. Shu only observed M.L. in a 1:1 instruction setting. Perhaps
because his knowledge of M.L. was so limited, Shu was unable to provide a rationale for the
CSE’s decision to offer M.L. a 6:1:1 setting in his IEP. Indeed, at the hearing, the most direct
exchange regarding why the CSE team thought a 6:1:1 setting was appropriate went as follows:
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[DOE Attorney]: [T]urning back to the program recommendation, why did the team believe a 6:1:1 was appropriate for [M.L.]?
[Mr. Shu]: 6:1:1 is a program for the—autistic children, okay. There are a lot of programs—classes, programs 6:1:1. They have autistic children there. We just feel this is the most appropriate [recommendation].
(T. 47.)
Mr. Shu’s testimony throughout the hearing reflected the seeming rationale behind the
CSE’s proposed IEP: the 6:1:1 placement is a standard proposal for children suffering from a
certain kind of autism spectrum disorder, with less attention paid to M.L.’s particular situation.
Mr. Shu’s testimony was so cursory and general that its impact is almost nil, and whatever
weight it could be given is largely nullified by the facts that Mr. Shu only observed M.L. for
thirty-minutes once in 1:1 setting, had not observed a 6:1:1 class in more than five years, and
acknowledged that he had virtually no experience teaching autistic students. (T. 58, 107-08.)
Although acknowledging that testimony regarding what the 6:1:1 placement would have
been like at P.S. 141 was “speculative” (SRO Dec. 19), the SRO nonetheless relied primarily on
the testimony of Ms. Schaefer, the special education teacher of the 6:1:1 class at P.S. 141 where
M.L. had been assigned. (Id. at 20.) The problems with such reliance are two-fold: the
testimony is unavailing, and it is largely impermissible.
First, it is unavailing. Ms. Schaeffer testified to the availability of 1:1 instruction at P.S.
141, but the SRO mischaracterized her testimony. The SRO, in furtherance of his conclusion
that the May 2010 IEP addressed M.L.’s needs, stated that “[Ms. Schaefer] indicated that the
assigned school was able to offer M.L. 1:1 instruction during the school day,” and went on to
imply that the level of instruction could be tailored to meet each student’s needs, i.e., that M.L.
would be provided 1:1 instruction at P.S. 141. (Id.) However, the hearing transcript
demonstrates that Ms. Schaefer testified that students in her class receive some amount of 1:1
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instruction daily, which can vary student to student. (Tr. 168-70.) That variable level of
instruction is quite different from the near-constant 1:1 instruction recommended, and provided,
by the staff of Imagine Academy.
Equally important, Ms. Schaefer’s testimony, even combined with Mr. Shu’s, does
nothing to rebut the testimony of the Imagine Academy witnesses that, based on their extensive
experience with M.L., testified that M.L. required 1:1 instruction to learn new skills. The fact
that some level of 1:1 instruction is available at P.S. 141 does not contradict the assertions by the
Imagine Academy staff that M.L. required consistent 1:1 instruction. The SRO does not provide
a basis for crediting the testimony of one teacher, Mr. Schaefer, who has no personal knowledge
of M.L. over the team who had worked with M.L. for months and years.
Second, the SRO relied impermissibly on “retrospective testimony.”6 See R.E., 694 F.3d
at 186 (holding that the sufficiency of an IEP must be judged on its face, and “retrospective
testimony that the school district would have provided additional services beyond those listed in
the IEP may not be considered in a Burlington/Carter analysis.”) (emphasis added.) This
testimony is precisely the kind that is barred: “if a student is offered a staffing ratio of 6:1:1, a
school district . . . . may not introduce evidence that modifies this staffing ratio (such as
testimony from a teacher that he would have provided extensive 1:1 instruction to the student).”
R.E., 694 F.3d 167 at 187. That is exactly the testimony that Ms. Schaefer gave, and upon which
6 The Court, however, notes that the rule prohibiting “retrospective testimony” only definitively became the applicable law in this Circuit after the SRO rendered his decision in this case.
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the SRO relied.7 Ms. Schaefer’s testimony regarding 1:1 work cannot be used to cure the clear
deficiency in the IEP.8 See id.
For the above discussed reasons, the SRO’s decision with respect to appropriateness of a
6:1:1 class for M.L. was not “well-reasoned” or “based on substantially greater familiarity with
the evidence and the witnesses that the reviewing court,” and therefore merits no deference. See
M.H., 685 F.3d at 244. The Court therefore turns to the IHO’s decision in determining the first
prong of the Burlington/Carter test: the substantive adequacy of M.L.’s IEP. See R.E., 694 F.3d
at 189 (citing M.H., 685 F.3d at 246).
The IHO’s more cogently reasoned decision correctly focuses on the appropriateness of
the IEP’s recommendation that M.L. be placed in a 6:1:1 setting. The rationale supporting the
IHO’s decision is comprehensively set forth in Background Section IV. It is clear that the
opinion reflects a careful consideration of the testimony of the Imagine Academy staff, and takes
into account several factors not addressed by the SRO. For example, the IHO considered the fact
that the CSE relied heavily on input from Imagine Academy staff when crafting much of the
disputed IEP, yet, without explanation, rejected Imagine Academy’s ultimate recommendation
for a 1:1 class for M.L. (IHO Dec. 7.) The IHO’s decision also considered and noted the
limitations of Mr. Shu’s testimony. Finally, the decision weighed the fact that the IEP
recommended 1:1 instruction for M.L.’s summer program, indicating recognition by the DOE
that M.L. required that level of attention. (Id.)
7 It is not totally clear that Ms. Schaefer’s testimony can be characterized as suggesting that M.L. would receive extensive 1:1 instruction. However, were such 1:1 instruction anything other than extensive, then it is, as discussed above, unavailing. 8 Nor, for the same reasons, may the Court consider Mr. Shu’s testimony that a 6:1:1 program would still result in M.L. receiving some 1:1 instruction every day.
26
Based on its own independent review of the administrative record, as discussed above,
the Court agrees with the IHO that M.L. requires 1:1 instruction. The DOE has failed to
establish that the IEP was appropriate to meet M.L’s needs under the first prong of the
Burlington-Carter test. Given that conclusion, the Court need not address Plaintiffs’ alternate
arguments (to the extent it has not already done so) regarding the insufficiency of the educational
needs, goals, and objectives listed in M.L.’s IEP and that placement at P.S. 141 would not have
been appropriate.
2. Burlington/Carter Prong Two: Appropriateness of Imagine Academy
The IHO correctly concluded that Imagine Academy provides a “highly structured
program” for M.L., primarily because he receives “one to one instruction all day.” 9 (Id. at 9.)
Parents need only demonstrate that the placement is “reasonably calculated to enable the child to
receive educational benefits. Frank G v. Bd. of Educ. of Hyde Park Cent. Sch. Dist., 459 F.3d
356, 364 (2d Cir. 2007) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)). Here,
Imagine Academy’s programs and services met M.L.’s expressive and pragmatic language
needs, (T. 295, 297, 308), his vocational and independent living needs (T. 407, 477-478), as well
as his physical and sensory needs (T. 257-275). In addition, parent training and counseling were
provided. (T. 361, 409.) Therefore, Imagine Academy was an appropriate placement for M.L.10
9 As previously discussed, the SRO did not opine on the appropriateness of M.L.’s placement at Imagine Academy given his finding with respect to the first prong of the Burlington Carter test. The IHO’s decision is, therefore, accorded due deference. See, e.g., N.Y.C. Dep't of Educ. v. V.S., 10-CV-05120, 2011 WL 3273922, at *11 (E.D.N.Y. July 29, 2011) (hereinafter “V.S.”). 10 With respect to the DOE’s claim that Imagine Academy is an inappropriate placement because M.L. requires a 12-month program and Imagine Academy provides only a 10-month program, the Court adopts the IHO’s analysis in full. (See IHO Dec. at 9-10.) In short, by the time M.L.’s Parents received the DOE placement offer, a 10-month program was sufficient to cover the remainder of the 2010-11 school year, and was thus completely appropriate. The DOE 27
3. Burlington/Carter Prong Three: Equities
With respect to prong three of the Burlington-Carter test, the Court must determine
whether equitable considerations support Plaintiffs’ claim for reimbursement. See R.E., 694 F.3d
at 185. The IHO found that the equities in the case favored Plaintiffs. In support of this
conclusion, the IHO wrote:
“There has been no claim that the parents failed to cooperate with the CSE in the development of the IEP. There is no claim or evidence that the parents were informed that utilization of the summer program even absent a DOE placement offer would foreclose reimbursement for a unilateral placement that was not a 12 month program. Further, the parent credibly testified that in past years the DOE has provided placement offers late or not at all (T. 341, 343) and I conclude that her failure to make an inquiry was not unreasonable and does not indicate a lack of cooperation. I also note that the parent’s credible claim that she did not receive the IEP until sometime in July (T. 366) has not been disputed or explained by the DOE. Further, it is well established that the parents’ preference for a private school is not a bar to reimbursement. Accordingly, I conclude that equitable considerations do not warrant denial of reimbursement in the instant matter.”
(IHO Dec. 10). The SRO did not review the IHO’s prong three determination on appeal, and the
Court therefore gives due deference to the IHO’s reasoning. See, e.g., V.S., 2011 WL 3273922,
at *11 (holding that the IHO’s determination is due deference where the SRO does not address
an issue reached by the IHO) (citation omitted)); see also C.L., v. New York City Dep't of Educ.,
12-CV-1676 (JSR), 2013 WL 93361, at *7 (S.D.N.Y. Jan. 3, 2013) aff’d, 552 F. App’x 81 (2d
Cir.), as amended (Feb. 3, 2014).
The DOE briefly argues that the IHO erred in concluding that the equities favor
reimbursement, contending that Plaintiffs never “seriously considered” a placement for M.L. in
public school and that Plaintiffs engaged in “foot-dragging in the Summer of 2010.” (Def.’s Br.
(Dkt. 25) 23.) The DOE cites the fact that M.L.’s parents waited until August 18, 2010 to reject
has failed to submit evidence to support their position that M.L.’s parents received notice of his proposed placement but purposely delayed in rejecting the IEP.
28
the IEP, “hoping that [M.L.] would enjoy what they believed was the best of both worlds—a
district-approved summer program and an inappropriate 10-month private school, all at the
public’s expense.” (Id.) The upshot of the DOE’s argument is that the Court should infer bad-
faith on the part of Plaintiffs.
Based on the hearing record, and the points elaborated on by the IHO, the Court declines
to do so. M.L.’s parents were fully cooperative throughout the process. Although the parties
have conflicting stories regarding when the parents received the IEP, Defendants submit no
evidence to support their version of the events. Without any such evidence, and giving due
deference to the findings of the IHO described above, the Court finds that the equities favor
Plaintiffs and reimbursement is justified.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for summary judgment (Dkt. 19) is
GRANTED and the DOE’s cross-motion for summary judgment (Dkt. 22) is DENIED.
Plaintiffs are entitled to tuition expenses for M.L.’s schooling at Imagine Academy for 2010-11
school year. Additionally, pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(I), the Court will award
reasonable attorneys’ fees and costs to Plaintiffs. Plaintiffs are hereby directed to file with the
Court, by no later than October 17, 2014, a particularized request for reasonable attorneys’ fees
and costs, together with supporting documentation, that complies with 20 U.S.C. § 1415(i)(3)(C).
Defendant may file any objections thereto by October 31, 2014, after which the Court will render
its final judgment.
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SO ORDERED:
/s/ Pamela K. Chen PAMELA K. CHEN United States District Judge
Dated: September 29, 2014 Brooklyn, New York
30