E.D.N.Y.: E.F. et al. v. New York...

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

E.F. and J.F., individually and on behalf of F.F., MEMORANDUM & ORDER Plaintiffs, 12-CV-2217 (MKB)

NEW YORK CITY DEPARTMENT OF EDUCATION,

Defendant.

MARGO K. BRODIE, United States District Judge:

Plaintiffs E.F. and J.F.1 (the “Parents”), individually and on behalf of their minor son,

F.F., bring this action against the New York City Department of Education (“DOE”), seeking

“declaratory and reimbursement relief” pursuant to the Individuals with Disabilities Education

Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. Plaintiffs seek review and reversal of the State Review

Officer’s (“SRO”) order, which overturned the Impartial Hearing Officer’s (“IHO”) decision

granting Plaintiffs reimbursement for private school pursuant to the IDEA. Plaintiffs move for

summary judgment on their claims and DOE cross-moves for summary judgment. The Court

heard oral argument on August 2, 2013. For the reasons set forth below, Plaintiffs’ motion is

denied and DOE’s cross-motion is granted.

I. Background

a. Statutory Framework for IDEA Cases

Congress enacted the IDEA “to ensure that all children with disabilities have available to

them a free appropriate public education . . . designed to meet their unique needs . . . [and] to

1 E.F. is the mother, and J.F. the father, of F.F.

ensure that the rights of children with disabilities and parents of such children are protected.”

M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 223 (2d Cir. 2012) (alteration in original) (quoting

20 U.S.C. § 1400(d)(1)(A)-(B)). The IDEA mandates that a “state receiving federal funds under

the IDEA must provide disabled children with a free and appropriate public education

(‘FAPE’).” R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 174–75 (2d Cir. 2012), (citations

omitted), cert. denied, 569 U.S. ---, 133 S. Ct. 2802 (2013). The goal of the IDEA is “[t]o ensure

that qualifying children receive a FAPE . . . .” R.E., 694 F.3d at 175. To do so, it mandates that

“a school district must create an individualized education program (‘IEP’) for each [disabled]

child.” Id.; see also 20 U.S.C. § 1414(d). “The IEP 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.’” R.E., 694 F.3d at 175 (quoting D.D. ex rel.

V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507–08 (2d Cir. 2006)). The IEP is required to be

“reasonably calculated to enable the child to receive educational benefits.” R.E., 694 F.3d at 175

(quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)); see also M.H., 685 F.3d at 224.

“Under the IDEA, for a child’s IEP to be adequate, it must be likely to produce progress, not

regression, and [must] . . . afford[ ] the student with an opportunity greater than mere trivial

advancement.” M.H., 685 F.3d at 224 (alterations in original) (internal quotation marks omitted)

(quoting T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir.

2009))). However, the IDEA does not require the IEP to “furnish every special service necessary

to maximize each handicapped child’s potential.” M.H., 685 F.3d at 224 (citations omitted).

“Rather, ‘a school district fulfills its substantive obligations under the IDEA if it provides an IEP

that is likely to produce progress, not regression, and if the IEP affords the student with an

opportunity greater than mere trivial advancement.”’ A.H. ex rel. J.H. v. Dep’t of Educ. of

N.Y.C., 394 F. App’x 718, 721 (2d Cir. 2010) (quoting T.P. ex rel. S.P., 554 F.3d at 254).

“In New York, the state has assigned responsibility for developing IEPs to local

Committees on Special Education (‘CSEs’).” R.E., 694 F.3d at 175 (citing N.Y. Educ. Law

§ 4402(1)(b)(1)). “CSEs are comprised of members appointed by the local school district’s

board of education, and must include the student’s parent(s), a regular or special education

teacher, a school board representative, a parent representative, and others.” R.E., 694 F.3d at 175

(citing N.Y. Educ. Law § 4402(1)(b)(1)(a)). “The CSE must examine the student’s level of

achievement and specific needs and determine an appropriate educational program.” R.E., 694

F.3d at 175 (citations omitted). “If a parent believes that his child’s IEP does not comply with

the IDEA, the parent may file a ‘due process complaint’ (a type of administrative challenge

unrelated to the concept of constitutional due process) with the appropriate state agency.” R.E.,

694 F.3d at 175 (citations omitted); see also 20 U.S.C. § 1415(b)(6); M.W. ex rel. S.W. v. N.Y.C.

Dep’t of Educ., --- F.3d ---, ---, 2013 WL 3868594, at *1 (2d Cir. July 29, 2013). The due

process complaint is heard by an IHO appointed by the school district. 20 U.S.C. § 1415(f);

R.E., 694 F.3d at 175; M.H., 685 F.3d at 224; see also N.Y. Educ. Law § 4404(1). A party can

appeal the IHO’s decision to the SRO. 2 R.E., 694 F.3d at 175; see also N.Y. Educ. Law

2 The administrative hearings use the Burlington/Carter test to determine whether a parent should be reimbursed for a unilateral placement. M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ., ---F.3d ---, ---, 2013 WL 3868594, at *1 (2d Cir. July 29, 2013); R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 185 (2d Cir. 2012). First, the school district must establish that the IEP was appropriate both procedurally and substantively. R.E., 694 F.3d at 185; see also Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998); F.L. ex rel. F.L. v. N.Y.C. Dep’t of Educ., No. 11-CV-5131, 2012 WL 4891748, at *6 (S.D.N.Y. Oct. 16, 2012). An IEP is appropriate substantively if the “IEP was ‘reasonably calculated to enable the child to receive educational benefits.’” Walczak, 142 F.3d at 129 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206–07 (1982)); see also A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009); F.L. ex rel. F.L., 2012 WL 4891748, at *6. If the school district fails it burden, the next step in 3

§ 4404(2); M.W. ex rel. S.W., --- F.3d at ---, 2013 WL 3868594, at *1. After the SRO has

rendered a decision, a party can “then bring a civil action in state or federal court to review the

SRO’s decision.” R.E., 694 F.3d at 175 (citations omitted); see also 20 U.S.C. § 1415(i)(2)(A);

M.W. ex rel. S.W., --- F.3d at ---, 2013 WL 3868594, at *1. “When such an action is brought in

federal district court, the court reviews the records of all of the prior administrative hearings and

must hear additional evidence if so requested by either of the parties.” M.H., 685 F.3d at 225

(citing 20 U.S.C. § 1415(i)(2)(c)).

b. F.F.’s General Background

F.F. has been diagnosed with “Autism Spectrum Disorder, cerebral palsy-hypotonic,

strabismus, and perventicular lukomalacia [‘PVL’] (a neurological condition characterized by

brain lesions and low white matter resulting in significant brain damage).” (Pls. 56.1 ¶ 3.)

“Additionally, F.F. has mobility limitations uses leg braces and a walker, and has blind spots in

his vision.” (Id.) Prior to 2007, F.F. “received Early Intervention Services and then attended

United Cerebral Palsy.” (Id. ¶ 4.) In 2007, F.F. began to attend the Rebecca School. (Id. ¶ 5.)

In April 2008, the Rebecca School issued a multidisciplinary progress report which summarized

F.F.’s educational performance from January 2009 to April 2009. (Ex. J; see also SRO

Decision 2.)

the test requires the parents of the child to establish the appropriateness of the private school placement. See Florence Cnty. Sch. Dist. Four v. Carter By & Through Carter, 510 U.S. 7, 12– 13 (1993); P.K. ex rel. S.K. v. N.Y.C. Dep’t of Educ., (Region 4), --- F. App’x ---, ---, 2013 WL 2158587, at *3 n.5 (2d Cir. May 21, 2013); B.R. ex rel. K.O. v. N.Y.C. Dep’t of Educ., No. 11- CV-8433, 2012 WL 6691046, at *8 (S.D.N.Y. Dec. 26, 2012); E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., No. 11-CV-5510, 2012 WL 5936537, at *13 (S.D.N.Y. Nov. 26, 2012). Lastly, the parents must establish that the equities favor reimbursement of the private school education and the level of reimbursement. See Florence Cnty. Sch. Dist. Four, 510 U.S. at 12–13; P.K. ex rel. S.K., --- F. App’x at ---, 2013 WL 2158587, at *3 n.5; B.R. ex rel. K.O., 2012 WL 6691046, at *8; E.T., 2012 WL 5936537, at *13.

On April 1, 2009, the Parents executed an enrollment contract with the Rebecca School

and remitted a deposit to reserve a place at the school for F.F. for the 2009–2010 school year.

(SRO Decision 2; Parent Ex. M, O.)3 The deposit was $10,000, of which $2,500 was

nonrefundable. (Def. 56.1 ¶ 31; Tr.4 528:18–529:1, 534:17–18; Ex. M.)

On June 2, 2009, DOE special education teacher Bryna Levine conducted a 40-minute

classroom observation of F.F. at the Rebecca School. (Pls. 56.1 ¶ 6; SRO Decision 2.) Levine

“reported . . . that F.F. ‘needs assistance with all activities due to very considerable fine and

gross motor difficulties.’” (Pls. 56.1 ¶ 6; see also Ex. G at 2–3.)

c. Committee on Special Education Meeting

On June 5, 2009, in preparation for the 2009–2010 school year, DOE held an annual

meeting of the CSE to create an IEP for then-six-year-old F.F. (Id. ¶ 7; Def. 56.1 ¶¶ 3–4.) The

CSE included the Parents, DOE school psychologist Rose Fochetta, DOE special education

teacher/district representative Feng Ye and F.F.’s Rebecca School special education teacher

Karin Robertson, who participated by telephone. (Pls. 56.1 ¶¶ 5, 7.) “Ms. Fochetta never met or

observed F.F.” but, Fochetta had been to the Rebecca School and observed other students in its

program. (Id. ¶ 8; Tr. 233:13–234:4.) Ye had never taught students with autism. (Pls. 56.1 ¶ 8.)

As part of the process, the group reviewed documents, including “a Multi-disciplinary Report

update prepared by the Rebecca School, dated April 2009; a report of a classroom observation of

F.F. conducted on June 2, 2009; a psychological evaluation, dated July 28, 2008; and [F.F.’s]

prior IEP” for the 2008–2009 school year. (Def. 56.1 ¶ 6; see also Pls. 56.1 ¶ 9; Tr. 212:12–24.)

3 The exhibits from the Parents are labeled by letter, were submitted to the IHO and the SRO as part of the administrative hearing process and are labeled “Ex.” hereinafter. 4 “Tr.” refers to the transcript from the hearing before the IHO.

According to DOE, “every word of the IEP was discussed at the CSE meeting and everyone,

including the Parents (who were familiar with the CSE process), provided input at the meeting.”

(Def. 56.1 ¶ 8 (citations omitted); see also Tr. 219:16–220:3, 222:23–223:3, 224:21–23, 445:24–

456:23, 483:22–484:1, 531:23–532:7.) DOE also maintains that “the CSE team specifically

discussed how F.F. dealt with significant impairments, and specifically PVL, which impacts his

functioning globally; how he was both non-verbal and non-ambulatory; and that academics were

‘at a minimum’ for F.F. and was not an area being focused on as he was not yet demonstrating

‘readiness skills.’” (Def. 56.1 ¶ 9.)

d. The Individualized Education Program

The IEP recommended that F.F. “be placed in a special class in a specialized school for a

twelve month school year, with a ratio of six students to one teacher with one classroom

paraprofessional” (referred to as “6:1:1”). (Def. 56.1 ¶ 11; see also Pls. 56.1 ¶ 10; Ex. B.) The

IEP also provided for the use of sensory tools, special seating and a paraprofessional specifically

assigned to F.F. in order to provide one-on-one adult support. (Ex. B at 3.) The IEP further

provided for F.F. to receive one-on-one occupational therapy (“OT”) for five sessions each week

for 30 minutes each session, one-on-one physical therapy (“PT”) for five sessions each week for

30 minutes each session and one-on-one speech and language therapy for five sessions each

week for 30 minutes each session. (Id. at 2.) The IEP also included 12 annual goals that were

associated with 26 short-term objectives. (Id. at 6.1–6.7; see also SRO Decision 18.) The goals

and objectives were discussed at the CSE meeting and many of the goals and objectives were

based on the reports from the Rebecca School about F.F. (See Tr. 227:3–228.6, 429:14–433:23,

455:24–456:10.) The IEP did not include a behavioral intervention plan (“BIP”) based on a

functional behavioral assessment (“FBA”). (See generally id.) There was also no provision for

parental counseling or training. (Id.)

e. DOE’s Placements

In a notice dated June 12, 2009, the DOE informed the Parents of the CSE meeting

summary and offered F.F. a placement at P369K@P067K school (“first placement”) to

implement F.F.’s IEP for the 2009–2010 school year. (Def. 56.1 ¶ 27; SRO Decision 2; Ex. F.)

According to Plaintiffs, E.F. visited the first placement and learned that it was located on the

fourth and fifth floors in a building without an elevator. (Pls. 56.1 ¶ 19; Tr. 513:3–514:5; Ex. E.)

After viewing the first placement, the Parents informed DOE in writing that they were rejecting

the first placement and would continue F.F.’s enrollment at Rebecca School but would consider

other options. (Def. 56.1 ¶ 28; Ex. E.)

On June 25, 2009, DOE informed Plaintiffs by telephone that there was a second

placement at PS771@P329 (“second placement”). (Pls. 56.1 ¶ 20; Def. 56.1 ¶ 29; SRO Decision

2.) E.F. immediately tried to schedule a visit to the school, but she was told to call back on

July 6, 2009. (Pls. 56.1 ¶ 20; Ex. A at 3; Ex. D at 1.) The Parents then wrote to DOE to inform

DOE that they would not place F.F. in the second placement until they had visited the location,

until that time they would continue F.F.’s schooling at Rebecca School and they intended to seek

reimbursement. (Pls. 56.1 ¶ 22; Ex. A at 3; Ex. D at 1–2.)

On July 27, 2009, the Parents visited the second placement with a privately retained

behavioral consultant, Dr. Carole Fiorile. (Pls. 56.1 ¶ 21; SRO Decision 2; Tr. 516:5–20,

553:11–21.) On July 29, 2009, the Parents wrote to the DOE rejecting the second placement

because (1) the “staffing ratio was insufficient for F.F.’s needs,” (2) it “could not guarantee the

availability of full-time support from an Orientation and Mobility Paraprofessional, as indicated

in F.F.’s IEP,” (3) it “did not offer sufficient parent training,” (4) it “did not offer sufficient

occupational therapy (‘OT’) services and facilities, and might not be able to fulfill F.F.’s OT

mandates until four months into the school year,” and (5) “F.F. would be confined to a small

trailer, without access to the school’s related service therapy rooms, due to an emergency

elevator breakdown.” (Pls. 56.1 ¶ 22; see also SRO Decision 3; Ex. C at 1–2.) The letter also

informed DOE of the intention to keep F.F. at the Rebecca School and that the Parents would be

seeking reimbursement from the DOE. (Pls. 56.1 ¶ 22; SRO Decision 3; Ex. C. at 2.)

f. The Rebecca School

F.F. was enrolled in the Rebecca School in April 2009 and began the 2009–2010 school

year on July 6, 2009. (SRO Decision 2; Ex. M; Ex. N; Ex. O; see also Pls. 56.1 ¶ 31.) F.F. was

enrolled in a class that had a student-to-teacher ratio of 8:1:6 — meaning eight students, one

teacher, and six teacher assistants — in December, and a ratio of 8:1:3 in May 2010, and he

received one-on-one paraprofessional services. (SRO Decision 2–3; see also Pls. 56.1 ¶¶ 31, 34;

Tr. 311:21–22, 316:14–15, 319:23–320:6, 378:12–25, 397:6–22, 400:22–401:19, 414:14–415:10;

Ex. H at 1, 3–4; Ex. I at 1, 3–7.) F.F. also had OT, PT and speech and language therapy, all in a

one-on-one setting, three times each week for 30 minutes each session, and music therapy in a

one-on-one setting once each week for 30 minutes each session. (SRO Decision 2–3; see also

Pls. 56.1 ¶¶ 31, 34; Tr. 311:21–22, 316:14–15, 319:23–320:6, 378:12–25, 397:6–22, 400:22–

401:19, 414:14–415:10; Ex. H at 1, 3–4; Ex. I at 1, 3–7.)

g. Due Process Complaint

On June 23, 2010, the Parents filed a due process complaint alleging that DOE failed to

provide an appropriate IEP and placement and requesting an impartial hearing and

reimbursement for tuition and costs for F.F.’s fees at Rebecca School. (Pls. 56.1 ¶ 43; Def. ¶ 40;

Ex. A.) The Parents alleged that the CSE was improperly composed because there was no

regular education teacher, additional parent member, social worker or individual qualified to

interpret the results of F.F.’s evaluations. (Ex. A at 2–3; see also SRO Decision 3.) The

complaint also asserted that F.F.’s reading, writing and math skills were not properly assessed.

(Ex. A. at 2–3; see also SRO Decision 3.) The Parents also alleged that the levels of

performance in the IEP were insufficient, the annual goals and short-term goals in the IEP were

inadequate, there was no adaptive technology or adaptive chair, the one-to-one adult support was

vague, there was no individualized parent counseling and training, there was no BIP based upon

a FBA, and the IEP failed to identify a school placement. (Ex. A at 2–3; SRO Decision 3.) The

complaint further alleged that when the Parents were given placements for F.F., the placements

were insufficient. (Ex. at 2–3; SRO Decision 3.) The Parents sought reimbursement for the

Rebecca School tuition, private OT, PT, speech-language therapy and music therapy, and for

transportation services. (Ex. A at 4; SRO Decision 3.)

h. Due Process Hearing and IHO Determination

A hearing before the IHO was held over eight non-consecutive days from December 7,

2010 to August 2, 2011.5 (Pls. 56.1 ¶ 44; Def. 56.1 ¶ 41; SRO Decision 4.) Polina Telerman,

unit coordinator at the second placement, (Tr. 21:17–201:21), and Fochetta, DOE school

psychologist, (Tr. 205:10–273:13), testified on behalf of DOE. Tina McCourt, program director

at the Rebecca School, (Tr. 279:6–363:3), Natalia Kimmelan, speech language pathologist at the

Rebecca School, (Tr. 369:23–401:25), Toni Sheridan, occupational therapist at the Rebecca

School, (Tr. 402:13–437:25), Robertson, F.F.’s special education teacher at the Rebecca School

5 The dates were December 7, 2010, February 7, 2011, February 8, 2011, March 25, 2011, April 14, 2011, June 9, 2011, July 19, 2011, and August 2, 2011. (IHO Findings of Fact and Decision (2d Corrected) at 3.) 9

(Tr. 443:13–503:10), E.F., (Tr. 503:14–534:25), and Fiorile, (Tr. 539:12–580:12), testified on

behalf of Plaintiffs.

The IHO issued an initial decision on September 22, 2011. (Pls. 56.1 ¶ 45; Def. 56.1

¶ 41; SRO Decision 4.) This decision was corrected twice and the final version was published on

October 13, 2011. (Def. 56.1 ¶ 41; SRO Decision 4.) The IHO found that DOE failed to provide

a FAPE for the 2009–2010 school year and that the Parents should be reimbursed for tuition at

the Rebecca School for the 2009–2010 school year in an amount not to exceed $84,900. (Pls.

56.1 ¶ 45; Def. 56.1 ¶ 41.) As part of the findings of fact, the IHO first summarized the

testimony of the various witnesses at the hearings. (IHO Findings of Fact and Decision (2d

Corrected) 3–13.) The IHO then found that:

[T]he IEP developed for [F.F.] for the 2009-10 school year was not reasonably calculated to enable [F.F.] to make measurable gains. . . . the placement recommended by DOE is insufficient to meet [F.F.’s] physical needs and sensory issues. . . . DOE did not make a valid placement offer and did not take all appropriate steps to offer a suitable placement.

(IHO Findings of Fact and Decision (2d Corrected) 13.) The IHO found the academic program

at the Rebecca School “demonstrates consistent progress” and, therefore, it was “reasonably

calculated to provide a meaningful and appropriate academic, social and emotional benefit.”

(Id.) The IHO also found that “[t]he evidence conclusively establishes that the [Parents]

cooperated fully with the DOE,” and, therefore, “the equities support the [Parents’] claim” and

reimbursement was warranted. (Id. at 14.)

i. Appeal to the SRO

DOE appealed the IHO’s decision to the SRO on October 27, 2011. (Def. 56.1 ¶ 43; Pls.

56.1 ¶ 46.) DOE argued that the IEP was reasonably calculated to provide F.F. a FAPE and if

F.F. had enrolled in one of the DOE’s placements, the IEP would have been implemented. (SRO

Decision 4.) DOE asserted that the Rebecca School “was an inappropriate placement for the

student for the 2009–2010 school year because it did not offer the student a 1:1 paraprofessional

and the levels of related services provided by the Rebecca School were lower than those

recommended in [F.F.’s] June 2009 IEP requiring [the Parents] to have to supplement [F.F.’s]

program with outside services.” (SRO Decision 4.) DOE also argued that the IHO’s finding was

“unsupported by citation to the hearing record.” (SRO Decision 4.) The Parents countered that

the IHO correctly determined that DOE failed to provide a FAPE, Rebecca School was an

appropriate placement and equitable considerations supported reimbursement. (SRO

Decision 4.)

j. The SRO Decision

The SRO considered each of the claims raised by Plaintiffs that were alleged in the due

process complaint. By decision dated January 13, 2012, the SRO, after a review of the record,

reversed the IHO and determined that the DOE had offered F.F. a FAPE for the 2009–2010

school year. (Def. 56.1 ¶ 44; Pls. 56.1 ¶ 47.) The SRO determined that the IHO had acted

improperly by granting an excessive number of extensions of the proceedings in violation of the

applicable rules and regulations. (SRO Decision 7–9.) The SRO also found that the IHO “failed

to cite applicable legal standards in rendering her determinations and cited only minimally to the

hearing record, which violates State regulation.” (Id.) The SRO noted that the IHO “failed to

substantiate her findings by citing to specific portions of the hearing record that supported her

determinations, and delivered her findings in four conclusory paragraphs devoid of any

meaningful analysis.” (Id. at 10.) The SRO then considered the merits of the appeal, despite

having found that the IHO did not properly lay out the reasons for her determination, and

considered each of the following claims raised by Plaintiffs in their due process complaint.6 (Id.)

i. Composition of CSE

The Parents asserted that “the June 2009 CSE lacked a regular education teacher, an

additional parent member, and an individual to interpret the instructional implications of [F.F.’s]

evaluations.” (Id. at 11.) DOE argued that CSE did not need a regular education teacher because

F.F. “was not being considered for a general education placement” and since it was an annual

review and not an initial placement, the lack of an additional parent member did not impede the

Parents’ ability to participate in the meeting. (Id.) The SRO found that “a regular education

teacher of the student was not required at the June 2009 CSE meeting because the evidence does

not support the conclusion that there was a reasonable likelihood that the student would have

been assigned to such a teacher.”7 (Id. at 12.) As for the additional parent member, the SRO

noted that an additional parent member is not required by the IDEA but is required under some

instances by New York law, but this requirement can be waived by parents. (Id.) The SRO

found that since the meeting was not an initial meeting of the CSE, meaning the first CSE to be

6 The SRO found that Plaintiffs had asserted several new claims on appeal — including claims that the “IEP was deficient because it failed to indicate whether the student’s related services would be delivered on a push-in pull-out basis, that the assigned school was inappropriate for the student because it did not offer transition support services, and that the parents and Rebecca School teacher were denied meaningful participation at the CSE meeting.” (SRO Decision 10–11.) The SRO declined to consider these claims because they were not asserted in the due process complaint. (Id.) 7 Plaintiffs have not pursued this argument in the proceedings before this Court.

convened for F.F., under New York law, it could have proceeded as a CSE subcommittee, and

subcommittees do not require additional parent members.8 (Id. at 13.) The SRO found that:

[E]ven if an additional parent member had been a required participant at the CSE meeting, the hearing record demonstrates that the absence of an additional parent member did not (a) impede [F.F.’s] right to a FAPE, (b) significantly impede [the Parents’] opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) cause a deprivation of educational benefits.

(Id.) The SRO found that the Parents had full participation and a FAPE was not denied. (Id.)

The SRO based her finding on the testimony of Fochetta, Robertson and E.F. and the CSE

meeting minutes. (Id.) The SRO also noted that the Parents “were familiar with the CSE

process” because they had participated in the CSE meeting for F.F.’s 2008–2009 IEP the prior

year. (Id.)

ii. Assessment of F.F.’s Abilities

The Parents argued that the CSE “improperly relied on ‘teacher observation’ to report

[F.F.’s] skills in reading, writing, and math, without assessing [F.F.].” (Id.) DOE responded that

the CSE “considered appropriate and current evaluative data, including input from [the Parents]

and [Robertson].” (Id.) The SRO found that the CSE considered numerous documents,

including F.F.’s July 28, 2009 “pyschoeducational evaluation,” F.F.’s September 2008 IEP,

F.F.’s April 2009 Rebecca School multidisciplinary progress report and F.F.’s June 2, 2009

classroom observation report, which had all been generated within a year of the meeting. (Id. at

14.) The SRO found “that the evaluation reports, together with input from [the Parents] and

from [Robertson], provided the June 2009 CSE with sufficient functional, developmental, and

8 However, as noted by Plaintiffs, none of the DOE’s documents indicate that the DOE or the participants considered the meeting to be a subcommittee meeting. (Pls. Mem. 8.) 13

academic information about [F.F.] and his individual needs in order to develop an appropriate

IEP.” (Id.)

The SRO then analyzed what the IEP provided. The SRO noted that given the various

inputs, that “emphasis was placed on developing [F.F.’s] ability to maintain a regulated state,

whereby he would remain ‘focused, calm, and available for interaction and engagement.’” (Id. at

16 (citations omitted).) The SRO noted that the IEP reflected F.F.’s diagnosis of multiple

disabilities and his academic abilities and needs. (Id.) The SRO found that the IEP was an

adequate reflection of F.F.’s social/emotional needs and noted that the IEP reflected F.F.’s

“inquisitive demeanor,” “anxiety,” “growth in his ability to attend to peers in his environment,”

“increased intentionality [in] communications,” “ability to two-way problem solve,” “sense of

humor” and “mischievousness.” (Id.) The SRO also found that the IEP “noted that the focus

and attention required for [F.F.] to engage in activities such as sitting in a chair or moving his

body to attain a desired object sometimes led to dysregulation.” (Id.) The IEP also indicated

that F.F. “responded to peer initiated interactions and showed preferences for certain peers in the

classroom” and that F.F. “showed a larger range of emotion and degrees or variations in happy

and sad feelings.” (Id.)

The SRO also found the IEP to be an adequate reflection of F.F.’s “health and physical

development.” (Id.) The SRO noted that in addition to F.F.’s “diagnoses and ambulation and

mobility challenges, the June 2009 IEP described [F.F.] as ‘hypo-responsive’ to physical

sensations, having blind spots in his vision; demonstrating ‘irregular’ auditory processing skills

and EEG readings, and indicated that he was suspected of having ‘absent seizures.’” (Id. at 16–

17.) “The June 2009 IEP also reflected [F.F.’s] gluten-free diet and indicated that he was not

independent in his activities of daily living (ADL) skills, was not toilet trained, and was not

verbal, and that although [F.F.] had no medical/health care needs during the school day, he did

have mobility limitations consistent with [cerebral palsy].” (Id. at 17.) The SRO noted that

according to Fochetta’s testimony, there was no disagreement about the evaluation and

Robertson “expressly agreed with the present levels of performance as developed by the CSE.”

(Id.)

iii. Goals and Objectives

The Parents argued that “the annual goals contained in the June 2009 IEP were deficient

because they were vague, insufficient, and did not identify methods of measurement of [F.F.’s]

progress, and were therefore inappropriate to address [F.F.’s] needs.” (Id.) The SRO made

several findings with regard to the goals and objectives in the IEP. First, she found that based on

Fochetta’s testimony and other evidence in the record, the “pre-academic, PT, OT, and speech-

language annual goals and short-term objectives included in [F.F.’s] IEP were created based on

skills and needs identified in the April 2009 Rebecca School multidisciplinary progress report, in

conjunction with input from [the Parents] and [Robertson].” (Id.) She also found that the 12

annual goals “when considered by themselves, indicate[] they were vague and not measurable;

however, the 26 short-term objectives in the IEP were related to and served to clarify the annual

goals.” (Id. at 18.) She further found that “[s]eventeen of the short-term objectives were

detailed and measurable and addressed [F.F.’s] areas of need specific to pre-academic skills” and

“nine short-term objectives addressed [F.F.’s] speech-language/communication abilities.” (Id.)

The SRO determined that “while [the] particular short-term objectives related to [F.F.’s] speech-

language/communication areas of need were not measurable, . . . that such a procedural error did

not impede [F.F.’s] right to a FAPE, significantly impede [the Parents’] opportunity to

participate in the decision-making process regarding the provision of a FAPE to [F.F.], or cause a

deprivation of educational benefits.” (Id.) She noted that the goals and objectives had been

taken from F.F.’s Rebecca School progress report. (Id.) F.F.’s speech-language pathologist

from the Rebecca School testified that these were the areas F.F. worked on during the 2009–

2010 school year at the Rebecca School. (Id.) The SRO found that these goals were consistent

with the Rebecca School’s multidisciplinary progress reports and did not deny F.F. a FAPE.

(Id.) The SRO also noted that “although none of the annual goals in the June 2009 IEP relating

to pre-academic skills, PT, and OT contained evaluative criteria or schedules, [the SRO found]

that their related short-term objectives contained sufficiently detailed information regarding the

condition under which each objective was to be performed and the frequency, duration, and

percentage of accuracy required for measurement of progress and remedied any deficiencies in

the annual goals.” (Id. at 19 (internal quotation marks omitted) (quoting Tarlowe v. N.Y.C. Bd.

of Educ., No. 07-CV-7936, 2008 WL 2736027, at *9 (S.D.N.Y. July 3, 2008)).)

iv. Program Recommendation

The Parents argued that the program outlined in the IEP was insufficient, including the

fact that they thought “1:1 adult support listed in the June 2009 IEP as an academic management

need was ‘vague,’” the IEP “failed to specify any level of 1:1 instruction” and the 6:1:1 special

class was insufficient to meet F.F.’s needs. (Id. at 20.) The SRO found that “the evidence

contained in the hearing record establishes that the district’s recommended educational program

as embodied in the June 2009 IEP, was at the time of its development, reasonably calculated to

enable [F.F.] to receive educational benefits,” since it addressed his academic, health and

physical needs. (Id. at 20–21.) The SRO also found that the provision of one-to-one adult

support was not vague because it was clear that a paraprofessional would be used to help F.F.

with his mobility issues. (Id.)

v. Assistive Technology

The Parents argued there was no assistive technology in the IEP, making it inappropriate.

(Id. at 21.) The SRO found that a FAPE was not denied because there was no reference to the

use of assistive technology since the Parents stated that they were still evaluating F.F. for

assistive technology at the time of the CSE meeting and the Rebecca School progress reports

made no mention of the use of assistive technology. (Id.)

vi. Parent Counseling and Training

The Parents asserted that there was no parent counseling and training in the IEP rendering

it deficient. (Id.) The SRO found that while parent counseling and training had not been

specifically outlined in the IEP, (a) New York law requires that parent counseling and training be

provided, and, thus its omission from the IEP is not normally a denial of a FAPE and, (b) the

second placement school offered parent workshops and daily communication between parents

and teachers which were similar to the parent counseling and training provided at the Rebecca

School. (Id. at 22.)

vii. Provisions for Interfering Behavior

The Parents also objected to the fact that the IEP did not contain any provisions for

special factors and interfering behavior, specifically that “it lacked a BIP based upon an FBA

for” F.F. (Id.) The SRO found that “the hearing record lacks sufficient evidence to establish that

[F.F.] required a BIP in order to obtain educational benefits” since F.F.’s behavior “did not

seriously interfere with instruction and could be addressed by the special education teacher

through support provided by [F.F.’s] OT, PT, and speech-language services providers.” (Id.

at 25.)

viii. Assigned School

The Parents argued that the assigned school would not be able to implement the IEP and

was therefore not an appropriate placement for F.F. because the class ratio of teachers to students

was inadequate, F.F. would not have a personal paraprofessional, the OT facilities were

insufficient, and the staff did not know American Sign Language. (Id. at 25–29.) The SRO

found that since the Parents never enrolled F.F. in any of the placement schools, the placement

schools could not be a basis for finding a denial of a FAPE. (Id. at 25.) Rather, “[t]he

sufficiency of the district’s offered program is to be determined on the basis of the IEP itself.”9

(Id. at 26.) The SRO also found no support for the contention that a one-on-one paraprofessional

could not have been provided to F.F. other than the testimony of E.F., and all other evidence in

the record contradicted this assertion. (Id.) With regard to the OT services, the SRO found that

while the Parents may have preferred the sensory equipment at the Rebecca School, DOE was

under no obligation to provide “every special service necessary to maximize each handicapped

child’s potential” and the placement school was under no obligation to provide the same

equipment as the Rebecca School. (Id.) The SRO did not “find support in the hearing record for

[the Parents’] contention that the student-to-teacher ratio of the assigned 6:1+1 special class [at

the second placement] was inadequate to enable the student to receive educational benefits.” (Id.

at 27.) The SRO found no evidence that the placement school would be unable to provide the

OT services as indicated in the IEP. (Id. at 29.) The SRO also found the argument that the

placement was inappropriate because the school did not use sign language “unpersuasive”

9 The SRO did note that Plaintiffs could have had a claim if they had enrolled F.F. in a school that actually failed to implement the IEP, rather than just conjecture that the school would have been unable to implement F.F.’s IEP. (SRO Decision 26.) 18

because there was testimony that at least some sign language was used at the second placement.

(Id.)

ix. SRO Conclusion

Consequently, the SRO found that the IEP provided a FAPE to F.F. (Id. at 30.) The

SRO therefore did not determine whether the Rebecca School placement was appropriate or

whether equitable considerations supported the Parents’ request for reimbursement. (Id.)

II. Discussion

a. Standard of Review

Summary judgment in this context is effectively an appeal of the State’s decision. R.E.,

694 F.3d at 184 (“Summary judgment in this context involves more than looking into disputed

issues of fact; rather, it is a pragmatic procedural mechanism for reviewing administrative

decisions.” (internal quotation marks omitted) (quoting A.C. ex rel. M.C. v. Bd. of Educ., 553

F.3d 165, 171 (2d Cir. 2009))); M.H., 685 F.3d at 226 (“Though the parties in an IDEA action

may call the procedure ‘a motion for summary judgment,’ the procedure is in substance an

appeal from an administrative determination, not a summary judgment [motion].” (citations

omitted)). “A reviewing court must engage in an independent review of the administrative

record and make a determination based on a preponderance of the evidence.” M.H., 685 F.3d at

240 (citations and internal quotation marks omitted); see also R.E., 694 F.3d at 184 (“A federal

court reviewing a dispute over an IEP must base its decision on the preponderance of the

evidence.” (citations omitted)). However, a federal court reviewing the administrative decision

“must defer to the administrative decision because ‘the judiciary generally lacks the specialized

knowledge and experience necessary to resolve persistent and difficult questions of educational

policy.’” R.E., 694 F.3d at 184 (citations omitted); M.W. ex rel. S.W., --- F.3d at ---, 2013 WL

3868594, at *4 (“In undertaking this independent review, we are further restrained by our lack of

specialized knowledge and educational expertise; we must defer to the administrative decision

[particularly where] the state officer’s review has been thorough and careful.” (alterations in

original) (internal quotation marks and citations omitted)). “District courts are not to make

‘subjective credibility assessment[s],’ and cannot ‘ch[oose] between the views of conflicting

experts on . . . controversial issue[s] of educational policy . . . in direct contradiction of the

opinions of state administrative officers who had heard the same evidence.’”10 M.H., 685 F.3d at

240 (alteration in original) (citation omitted).

The Second Circuit has held that deference “is particularly appropriate” where the state

administrative review “has been thorough and careful.” R.E., 694 F.3d at 184 (citing Walczak v.

Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998); M.H., 685 F.3d at 241 (same).

Deference does not mean that the federal court “simply rubber stamp administrative decisions.”

R.E., 694 F.3d at 184 (citations omitted). “The SRO’s or IHO’s factual findings must be

‘reasoned and supported by the record’ to warrant deference.” M.H., 685 F.3d at 241 (citations

10 The Second Circuit has given examples of when an opinion of the SRO should be given more or less deference: By way of illustration, determinations regarding the substantive adequacy of an IEP should be afforded more weight than determinations concerning whether the IEP was developed according to the proper procedures. Decisions involving a dispute over an appropriate educational methodology should be afforded more deference than determinations concerning whether there have been objective indications of progress. Determinations grounded in thorough and logical reasoning should be provided more deference than decisions that are not. And the district court should afford more deference when its review is based entirely on the same evidence as that before the SRO than when the district court has before it additional evidence that was not considered by the state agency. M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 244 (2d Cir. 2012) (citations omitted); see also B.R. ex rel. K.O., 2012 WL 6691046, at *4.

omitted). The Supreme Court and the Second Circuit have noted that a federal court’s

independent review is something between de novo review and “limited . . . review for state

compliance with the Act’s procedural requirements [with] no power to review the substance of

the state program.” M.H., 685 F.3d at 241–42 (quoting Rowley, 458 U.S. at 205).

“If the SRO’s decision conflicts with the earlier decision of the IHO, the IHO’s decision

may be afforded diminished weight.” M.H., 685 F.3d at 241 (citations omitted). “Where the

IHO and SRO disagree, reviewing courts are not entitled to adopt the conclusions of either state

reviewer according to their own policy preferences or views of the evidence; courts must defer to

the reasoned conclusions of the SRO as the final state administrative determination.” M.H., 685

F.3d at 246 (citations omitted); see also M.W. ex rel. S.W., --- F.3d at ---, 2013 WL 3868594, at

*4 (“Where an SRO has clearly demonstrated a better command of the record and supported her

conclusions through better legal and factual analysis than an IHO, we will have little difficulty

deferring to the SRO’s opinion.”); T.L. v. N.Y.C. Dep’t of Educ., No. 12-CV-4483, 2013 WL

1497306, at *10 (E.D.N.Y. Apr. 12, 2013) (“When, as in the present case, the IHO and SRO

disagree, the general rule is that courts must defer to the reasoned conclusions of the SRO as the

final state administrative determination.” (internal quotation marks omitted) (quoting R.E., 694

F.3d at 189)).

b. Procedural Deficiencies

“The initial procedural inquiry in an IDEA case ‘is no mere formality,’ as ‘adequate

compliance with the procedures prescribed would in most cases assure much if not all of what

Congress wished in the way of substantive content in an IEP.’” Davis v. Wappingers Cent. Sch.

Dist., 431 F. App’x 12, 14 (2d Cir. 2011) (alteration omitted) (citing A.C. ex rel. M.C., 553 F.3d

at 172). Not “every procedural error in the development of an IEP renders that IEP legally

inadequate under the IDEA.” Davis, 431 F. App’x at 14–15 (quoting Grim v. Rhinebeck Cent.

Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003)); see also A.C. ex rel. M.C., 553 F.3d at 172

(quoting Grim for the same proposition). For procedures to be sufficient, they must provide

“[a]n 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 of a free appropriate public education to

such child, and to obtain an independent educational evaluation of the child.” 20 U.S.C. § 1415;

see also see also F.L. ex rel. F.L. v. N.Y.C. Dep’t of Educ., No. 11-CV-5131, 2012 WL 4891748,

at *6 (S.D.N.Y. Oct. 16, 2012) (quoting 20 U.S.C. § 1415). Procedural deficiencies only require

reimbursement when “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.’” R.E., 694 F.3d at 190 (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)); see also

Davis, 431 F. App’x at 15 (outlining the factors that make procedural factors sufficient for

reimbursement). “Multiple procedural violations may cumulatively result in the denial of a

FAPE even if the violations considered individually do not.” R.E., 694 F.3d at 190.

Plaintiffs argue that there were six procedural errors in the development of F.F.’s IEP

plan rendering it defective: (1) the CSE was improperly convened; (2) the CSE failed to

consider the continuum of programming for F.F. and to consider his individual needs; (3) the

goals and objectives were not appropriate; (4) DOE failed to consider assistive technology;

(5) there was no parent counseling and training provided for in the IEP; and (6) the IEP failed to

address F.F.’s behavioral needs. (See generally Pls. Mem. 6–16.) The SRO found that none of

the alleged procedural deficiencies resulted in a denial of a FAPE. (SRO Decision 11–25.) As

set forth below, the SRO’s opinion is supported by a preponderance of the evidence in the

record, and the Court affirms the SRO’s determination.

i. Committee on Special Education

Plaintiffs argue that the CSE was improperly convened because there was no “individual

to interpret the instructional implications of F.F.’s evaluation results” and there was no parent

member. (Pls. Mem. 7–8.) The SRO found that Plaintiffs’ argument that there was no one on

the CSE to interpret the instructional implications of F.F.’s evaluation results was without merit

and not supported by the record. (See SRO Decision 11 n.6.) The SRO noted that both Fochetta,

who is a school psychologist, and Ye, who is a special education teacher, could have performed

this function. (Id.)

New York State law requires that the CSE include:

[A]n individual who can interpret the instructional implications of evaluation results. Such individual may also be the individual appointed as the regular education teacher, the special education teacher or special education provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student when such member is determined by the school district to have the knowledge and expertise to fulfill this role on the committee . . . .

N.Y. Comp. Codes R & Regs. tit. 8 (hereinafter referred to as “8 N.Y.C.R.R.”) § 200.3(a)(1)(vi).

Given that two members of the CSE could have functionally performed this role, the SRO’s

determination is supported by preponderance of the evidence and F.F. was not denied a FAPE.

See, e.g., C.T. v. Croton-Harmon Union Free Sch. Dist., 812 F. Supp. 2d 420, 430–31 (S.D.N.Y.

2011) (“Courts in this Circuit have upheld the validity of an IEP even where a special education

teacher is absent from the CSE meeting. Courts finding that such an error did not deny a student

a FAPE considered whether the participants in the meeting had the requisite expertise to ensure

that a student’s special education options were properly considered.” (citations omitted)); see

also A.D. v. N.Y.C. Dep’t of Educ., No. 12-CV-2673, 2013 WL 1155570, at *7 (S.D.N.Y. Mar.

19, 2013) (declining to find a FAPE denied where the member was qualified and the parents had

provided no evidence that the member was not qualified to fulfill the position); R.C. ex rel. M.C.

v. Byram Hills Sch. Dist., 906 F. Supp. 2d 256, 271 (S.D.N.Y. 2012) (the CSE need only have a

member who can perform the function as outlined by the regulation); J.G. ex rel. N.G. v. Kiryas

Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 646–47 (S.D.N.Y. 2011) (finding that a FAPE

was not denied despite the fact that a “specially designated special education instructor” was not

present at the meeting as “the parents have not [provided evidence] that this shortcoming on the

part of [defendant] obstructed [the student’s] right to a free appropriate public education, limited

their opportunity to participate in the decision making process, or deprived [the student] of any

educational benefit”). Plaintiffs’ counsel at oral argument stated that there “may” have been a

problem with Fochetta and Ye performing the function, since according to counsel, Fochetta was

not familiar with the 6:1:1 program and Ye had not taught students with F.F.’s particular

disabilities.11 (Oral Arg. Tr.12 12:1213:19.) However, counsel conceded that according to the

law, both Fochetta and Ye could have performed the function. (Id.) This claim is without merit.

Plaintiffs’ second argument, that the absence of another parent member rendered the CSE

and therefore the IEP defective, is also without merit. (Pls. Mem. 7–8.) The SRO found that

since the CSE was not considering an initial placement of F.F.,13 the CSE could have proceeded

11 Accepting counsel’s statements that Fochetta was not familiar with the 6:1:1 program and Ye had never taught students with F.F.’s particular disabilities as accurate, counsel did not identify any evidence in the record to support her claim that Fochetta and Ye were not qualified to perform this function. 12 “Oral Arg. Tr.” refers to the transcript from the oral argument before the Court. 13 Both parties agree that a prior IEP was prepared for F.F. for the 2008–2009 school year. (See Pls. 56.1 ¶¶ 9, 11; Def. 56.1 ¶¶ 6, 26.) 24

as a CSE subcommittee. (SRO Decision 12–13.) The SRO also found that even assuming an

additional parent participant had been required “the hearing record demonstrates that the absence

of an additional parent member did not (a) impede [F.F.’s] right to a FAPE, (b) significantly

impede the [Parents’] opportunity to participate in the decision-making process regarding the

provision of a FAPE to [F.F.], or (c) cause a deprivation of educational benefits.” (Id. at 13.)

While the presence of a parent member is required by New York law under certain

circumstances, it is not required by the IDEA and is therefore not a procedural error under the

IDEA. Cf. J.G. ex rel. N.G., 777 F. Supp. 2d at 647 (“The IDEA does not require the presence of

a parent member and the parent member’s absence cannot, therefore, be considered a procedural

defect under the federal statute.” (quoting Bd. of Educ. v. Mills, No. 03-CV-0050, 2005 WL

1618765, at *5 (S.D.N.Y. Jul. 11, 2005))). At the time the CSE for F.F. was convened, New

York state regulations required that a CSE include “an additional parent member of a student

with a disability residing in the school district or a neighboring school district, provided such

parent is not a required member if the parents of the student request that the additional parent

member not participate in the meeting . . . .”14 W.S. v. Nyack Union Free Sch. Dist., No. 09-CV-

10139, 2011 WL 1332188, at *1 (S.D.N.Y. Mar. 30, 2011) (alteration in original) (quoting 8

N.Y.C.R.R. § 200.3(a)(1) (viii)); see also K.S. v. N.Y.C. Dep’t of Educ., No. 11-CV-7443, 2012

WL 4017795, at *1 (S.D.N.Y. Aug. 8, 2012) (quoting 8 N.Y.C.R.R. § 200.3(a)(1)(viii) pre-

amendment); J.A. v. N.Y.C. Dep’t of Educ., No. 10-CV-9056, 2012 WL 1075843, at *1

(S.D.N.Y. Mar. 28, 2012) (same); N.Y.C. Dep’t of Educ. v. V.S., No. 10-CV-05120, 2011 WL

3273922, at *3 n.2 (E.D.N.Y. July 29, 2011) (same).

14 This provision was amended as of January 2, 2013, to require an additional parent member only if requested in writing by the parent, student or member of the committee. 34 N.Y. Reg. 14 (Sept. 26, 2012). 25

As the SRO found, since it was not an initial placement, the CSE could have been held as

a subcommittee. N.Y. Educ. Law § 4402(1)(b)(1)(d); 8 N.Y.C.R.R. § 200.3(c)(2)–(5).

However, Plaintiffs are correct that the meeting technically proceeded as a CSE rather than a

CSE subcommittee, and therefore, technically required an additional parent member.

Nevertheless, the absence of an additional parent member requires reimbursement of a parent’s

unilateral placement in a private school only if it “‘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.’” R.E., 694 F.3d at 190 (citations omitted); see

also W.S., 2011 WL 1332188, at *9 (finding no denial of a FAPE where “[t]here is no evidence

in the record to support [the plaintiff’s] contention that the absence of an additional parent

member ‘result[ed] in insufficient information being available to the CSE team and [ ] a faulty

IEP’” (citations omitted)); Mills, 2005 WL 1618765, at *5 (finding that a FAPE was not denied

where “there [was] no indication that the parent member’s absence resulted in a loss of

educational opportunity”).

As the comments to the amended rule make clear, the purpose in having an additional

parent member on the CSE is to “help parents understand and participate in the meeting by

explaining the procedures, asking questions and clarifying information.” 2012 NY REG TEXT

305185 (NS). Furthermore, as the New York State Assembly Memorandum in Support of the

amended rule makes clear, New York State is the only state that requires an additional parent

member to the CSE and “[a]lthough a parent member may provide insight into the IEP process,

no part of the IEP development is dependent on the additional parent member’s expertise.”

A7216-A, 2011–2012 Reg. Sess., 2012 c.276. Having been through the IEP process the prior

year, the Parents were familiar with the CSE meeting. Also, E.F. testified that she fully

participated in the meeting and made suggestions about many items of interest, including F.F.’s

love of music, that eventually made it into the IEP. (See Tr. 510:13–23, 511:10–21, 531:23–

532:7; Ex. B at 3.) In addition, the goal related to having F.F. ambulate was included in the IEP

at the Parents’ request. (Tr. 225:17–23.) Robertson, F.F.’s then special education teacher at the

Rebecca School, testified that she fully participated and tried to help the Parents throughout the

CSE meeting. (Tr. 456:15–23.) While Robertson ultimately disagreed with the placement of

F.F. in a 6:1:1 class in a special school, the evidence demonstrates that there was full

participation by the Parents and Robertson. Thus, although the absence of another parent

member of the CSE was a procedural error, Plaintiffs cannot maintain that it led to the denial of a

FAPE. See McCallion v. Mamaroneck Union Free Sch. Dist., No. 10-CV-6207, 2013 WL

237846, at *10 (S.D.N.Y. Jan. 22, 2013) (“Notably, Parent actively participated in the

development of the October 2008 IEP, both by attending the CSE meeting and by exchanging

several follow-up emails with District personnel. Therefore, any procedural defect with respect

to the composition of the CSE ‘was not alone sufficient to result in the loss of educational

opportunity.’” (citations omitted)); see also W.S., 2011 WL 1332188, at *9 (“There is no

evidence in the record to support Plaintiff’s contention that the absence of an additional parent

member ‘result[ed] in insufficient information being available to the CSE team and [ ] a faulty

IEP.’” (citations omitted)); Mills, 2005 WL 1618765, at *5 (“[T]here is no indication that the

parent member’s absence resulted in a loss of educational opportunity for M.S. or infringed on

W.S.’s ability to participate in the CSE.”).

ii. F.F.’s Continuum of Programming and Treatment of Parents

Plaintiffs state that the continuum of programing in F.F.’s IEP denied F.F. a FAPE for

two reasons: (1) the IEP’s provision of a 6:1:1 special class in a special school placement was

inadequate for F.F., and (2) the CSE failed to treat the Parents and Robertson as full members of

the CSE by failing to consider their requests for more one-on-one instruction. (Pls. Mem. 8–9.)

The SRO found the first contention to be without merit and the second to barred because the

Parents failed to raise it in their due process complaint. (SRO Decision 10–11, 20–21.) As set

forth below, Plaintiffs have failed to demonstrated that F.F. was denied a FAPE because of the

continuum of programing in the IEP. The Court finds that the SRO’s decision is supported by a

preponderance of the evidence in the record and affirms the placement decision. In addition, the

Court affirms the SRO’s finding that the Parents did not raise the issue of being treated as full

members of the CSE in their due process complaint. Nevertheless, the Court reviews the merits

of this claim and finds it to be without merit.

1. Continuum of Programming

Plaintiffs assert that “the DOE failed to consider the full continuum of programing which

may have been appropriate for F.F.” because the IEP “offered F.F. a placement in a 6:1:1 special

class in a specialized school” and “no one at the meeting explained how much 1:1 instruction

would be available in the 6:1:1 special class.”15 (Pls. Mem. 8.) Plaintiffs argue that F.F. should

have been considered for other alternatives. (Pls. Mem. 8–9, Ex. A, Oral Arg. Tr. 17:16–18:11,

20:2–22:25.). The SRO found that the IEP “was at the time of its development, reasonably

calculated to enable [F.F.] to receive educational benefits in the [least restrictive environment]

for the 2009–10 school year.” (SRO Decision 20–21.) The SRO also found Plaintiffs’ argument

that it was unclear how much one-on-one instruction F.F. would receive was “unpersuasive”

because the IEP provided for a one-on-one paraprofessional to help F.F. with his mobility issues

15 Plaintiffs challenge the class size as a procedural error. However, in R.E. the Second Circuit examined class size as a substantive issue. See R.E., 694 F.3d at 192. Regardless of whether this challenge to the IEP is considered a procedural or substantive challenge, the Court finds it to be without merit. 28

and the Parents stated at the meeting that they wanted several of his goals in his IEP to relate to

F.F.’s ability to ambulate. (Id.)

Plaintiffs rely on 34 C.F.R. § 300.115 and 8 N.Y.C.R.R. § 206 to support their argument

that the DOE failed to provide F.F. the full continuum of programming for his individual needs.

(Pls. Mem.8–9.) C.F.R. § 300.115 states that “[e]ach public agency must ensure that a

continuum of alternative placements is available to meet the needs of children with disabilities

for special education and related services” and that providing a continuum of alternative

placements includes “the alternative placements listed in the definition of special education

under § 300.38 (instruction in regular classes, special classes, special schools, home instruction,

and instruction in hospitals and institutions)” and “supplementary services (such as resource

room or itinerant instruction) to be provided in conjunction with regular class placement.” 34

C.F.R. § 300.115. Under 8 N.Y.C.R.R. § 200.6, “[a] student with a disability shall be provided

the special education specified on the student’s IEP to be necessary to meet the student’s unique

needs.” 8 N.Y.C.R.R. § 200.6. Among the many provisions of § 200.6, there is a “cap class size

at six for students with ‘highly intensive’ needs ‘requiring a high degree of individualized

attention and intervention,’ and at eight for students with ‘intensive’ needs.” E.H. v. Bd. of Educ.

of Shenendehowa Cent. Sch. Dist., 361 F. App’x 156, 159 (2d Cir. 2009) (quoting 8 N.Y.C.R.R.

§ 200.6(h)(4)(ii)(a)–(b)). “Children whose disabilities do present particular management

concerns are grouped in smaller-than-average size classes of six, eight, or twelve students,

depending on the degree of intervention required.” Walczak, 142 F.3d at 123 (citing 8

N.Y.C.R.R. § 200.6(g)(4)).

“The IDEA ‘expresses a strong preference’ for educating disabled students alongside

their non-disabled peers; that is, in their least restrictive environment.’” M.W. ex rel. S.W., ---

F.3d at ---, 2013 WL 3868594, at *9 (citations omitted); E.S. ex rel. B.S. v. Katonah-Lewisboro

Sch. Dist., 487 F. App’x 619, 621 (2d Cir. 2012) (“The ‘special education and related services

must be provided in the least restrictive setting consistent with a child’s needs.’” (quoting

Walczak, 142 F.3d at 122)). Under the law, once the DOE determined that 6:1:1 was the least

restrictive environment in which F.F. could be educated, it was not obligated to consider a more

restrictive environment, such as the Rebecca School. A.D., 2013 WL 1155570, at *8 (“[O]nce

the CSE determined that a 6:1:1 classroom would be appropriate for the Student, it had identified

the least restrictive environment that could meet the Student’s needs and did not need to inquire

into more restrictive options such as nonpublic programs.”); R.C. ex rel. M.C., 906 F. Supp. 2d at

273 (“While it is natural to assume that a student would benefit from being in a smaller

classroom environment with more support, the IDEA does not require that the District provide an

ideal learning environment, but instead only one where the student can progress. Additionally,

the SRO’s determination is consistent with the IDEA’s strong preference for ‘mainstreaming or

educating children with disabilities to the maximum extent appropriate alongside their non-

disabled peers.’ Thus Plaintiffs have not demonstrated that the IEP’s recommendations would

deny M.C. a FAPE.” (quoting M.H., 685 F.3d at 244)); cf. E.H., 361 F. App’x at 159 (finding the

class size for students with “highly intensive needs” is capped at six).

The SRO found the program in the IEP for a 6:1:1 in a special class in a special school to

be the least restrictive environment that could meet F.F.’s needs. (SRO Decision 21.) The SRO

determined that the IEP addressed F.F.’s “academic needs as identified in the evaluative data

available to the CSE” by recommending sensory tools, special seating, and one-to-one adult

support. (Id. at 20.) The SRO also found that the program addressed F.F.’s “social/emotional

management needs” by providing for “sensory material and adaptive seating,” and addressed his

“health and physical needs through recommendations for an accessible program, adapted

physical education with a 6:1+1 staffing ratio, continuation of OT and PT, and provision of an

oral motor protocol prior to eating.” (Id.) The SRO further found that the Parents’ assertion that

the IEP “‘failed to specific any level of 1:1 instruction’ or support for” F.F. to be “unpersuasive”

because Fochetta testified that F.F. would be provided a one-on-one paraprofessional to help him

with mobility and that a few of the goals advocated by the Parents and Robertson were to help

F.F. with ambulation. (Id. at 20–21.) In making her determination, the SRO relied on the

testimony of Fochetta at the hearing, the IEP and the CSE meeting minutes. (Id.)

The SRO’s determination is supported by the record before the SRO, since Fochetta

testified at length as to why she believed a 6:1:1 program in a special school would provide F.F.

with the appropriate classroom setting, with the addition of a one-on-one paraprofessional and

daily therapy sessions. (Tr. 234:6–235:10, 244:7–17, 245:15–20, 256:11–18.) In addition, the

IEP clearly provides for a one-on-one paraprofessional. (Ex. B at 2, 7, 9.) In their due process

complaint and their moving papers before the Court, Plaintiffs question whether F.F. would have

been provided a one-on-one paraprofessional as required by the IEP. (Ex. A. at 4; Pls. Mem.

19.) However, Plaintiffs had no reason to question whether the DOE would have provided F.F.

with a paraprofessional as required by the IEP, since, according to the Rebecca School contract,

a paraprofessional was not provided by the Rebecca School, (Ex. M; Tr. 256:3–257:7), and DOE

was already providing a paraprofessional for F.F. at the Rebecca School, (Tr. 256:3–257:7).

Moreover, Tellerman testified that in the class that would probably have been F.F.’s class, there

were several personal paraprofessionals for students, and they could have provided F.F. with his

own mobility paraprofessional. (Tr. 35:1–9, 40:8–16.) She also testified that the

paraprofessionals helped the teachers with instruction. (Tr. 95:6–16.)

Given that the SRO’s determination is supported by a preponderance of the evidence in

the record and her determination of appropriate school program is the type of educational policy

determination to which the Court affords great deference to the SRO, the Court affirms the

SRO’s determination that the program in the IEP did provide the appropriate continuum of

programming for F.F. and gave him a FAPE in the least restrictive environment as mandated by

the IDEA.16 See, e.g., K.L. ex rel. M.L. v. N.Y.C. Dep’t of Educ., --- F. App’x ---, ---, 2013 WL

3814669, at *5 (2d Cir. July 24, 2013) (“The adequacy of 1:1 paraprofessional support as

opposed to 1:1 teacher support is precisely the kind of educational policy judgment to which we

owe the state deference if it is supported by sufficient evidence, as is the case here.” (quoting

R.E., 694 F.3d at 192)); T.B. v. Haverstraw-Stony Point Cent. Sch. Dist., No. 11-CV-5421, 2013

WL 1187479, at *20 (S.D.N.Y. Mar. 21, 2013) (finding that despite the parents desire for a more

restrictive classroom setting, “there [wa]s insufficient evidence to overcome the SRO’s”

determination that the IEP provided for the least restrictive environment and “the [p]laintiff bears

the burden of demonstrating that the SRO’s determination is not supported by the preponderance

of the evidence”); A.D., 2013 WL 1155570, at *7–8 (agreeing with SRO “that the CSE’s failure

to consider non-public school placements was not a procedural violation”); J.L. v. City Sch. Dist.

of N.Y.C., No. 12-CV-1516, 2013 WL 625064, at *9 (S.D.N.Y. Feb. 20, 2013) (“[T]he SRO

[found that the] intensive, specialized classroom instruction in a general school setting addressed

C.L.’s academic and social needs in the least restrictive environment in which he could be

16 The Court notes that while there is other testimony in the record that 6:1:1 in a special school may not have been appropriate for F.F., it is not the Court’s function to weigh the credibility of various witnesses at the administrative level, but rather, to determine whether there is a preponderance of the evidence in the record to support the SRO’s determination. M.H., 685 F.3d at 240 (holding that it is the SRO’s purview to “subjective credibility assessment[s]” and “ch[oose] between the views of conflicting experts on . . . controversial issue[s] of educational policy” (alteration in original) (citation omitted)).

expected to make progress. This is precisely the sort of expert assessment to which a reviewing

court must give deference in the IDEA context.”); E.M. v. N.Y.C. Dep’t of Educ., No. 09-CV-

10623, 2011 WL 1044905, at *10 (S.D.N.Y. Mar. 14, 2011) (finding that “the SRO evaluated

evidence from both sides and made assessments of credibility and appropriate educational policy

[,and] [t]he Second Circuit is clear that in such circumstances, a district court may not second-

guess the reasoned judgments of an SRO” and therefore upholding the SRO’s finding that 6:1:1

class was appropriate (citations omitted)).

2. Participation of the Parents and Robertson in the CSE

Plaintiffs assert that “[t]he DOE also failed to consider the Parents’ and Ms. Robertson’s

requests, and in so doing, failed to treat them as full and equal IEP Team members.” (Pls. Mem.

8–9.) The SRO found that Plaintiffs’ contention that they were not treated as full members was

barred from review because it was not raised directly in the due process complaint. (SRO

Decision 10–11.) Under case law in this Circuit, “[t]he scope of the inquiry of the IHO, and

therefore the SRO and this Court, is limited to matters either raised in the [p]laintiffs’ impartial

hearing request or agreed to by Defendant.”17 B.P. v. N.Y.C. Dep’t of Educ., 841 F. Supp. 2d

605, 611 (E.D.N.Y. 2012) (citing 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. § 300.511(d); 8

N.Y.C.R.R. § 200.5(j)(1)(ii)); see also R.E., 694 F.3d at 187–88 (the due process complaint

“must list all of the alleged deficiencies in the IEP . . . parents are precluded in later proceedings

from raising additional defects in the IEP that they should have raised from the outset”); J.C.S. v.

17 The reason for this requirement is to give the school districts thirty days to remedy any issues raised in the due process complaint without any penalty and it is only after this period has lapsed that parents of a student can continue with the complaint. R.E., 694 F.3d at 187–88 (“An important feature of the IDEA is that it contains a statutory 30–day resolution period once a ‘due process complaint’ is filed. That complaint must list all of the alleged deficiencies in the IEP. The Department then has thirty days to remedy these deficiencies without penalty. . . . The adequacy of the IEP will then be judged by its content at the close of the resolution period.”).

Blind Brook-Rye Union Free Sch. Dist., No. 12-CV-2896, 2013 WL 3975942, at *8 (S.D.N.Y.

Aug. 5, 2013) (“‘[T]he party requesting the hearing [must] lay out specifically in the [DPC] the

issues that will be before the hearing officer,’ and courts have authority to review only those

issues.” (citations omitted)); Dirocco ex rel. M.D. v. Bd. of Educ. of Beacon City Sch. Dist., No.

11-CV-3897, 2013 WL 25959, at *23 (S.D.N.Y. Jan. 2, 2013) (“The IDEA and federal and state

regulations require that the party requesting the impartial hearing lay out specifically in the due

process complaint the issues that will be before the hearing officer. The party who [requests] an

impartial hearing is restricted to the issues raised in their due process complaint, unless the

complaint is amended prior to the hearing or the other party consents.” (internal quotation marks

and citations omitted)). The issue was not raised in the due process complaint, and, therefore,

the SRO’s decision that it was barred from review is supported by the record and case law.

J.C.S., 2013 WL 3975942, at *8–9 (S.D.N.Y. Aug. 5, 2013) (holding that the district court

lacked subject matter jurisdiction to hear a claim not properly presented to the IHO and SRO);

Dirocco ex rel. M.D., 2013 WL 25959, at *23 (“‘The party who [requests] an impartial hearing is

restricted to the issues raised in their due process complaint, unless the complaint is amended

prior to the hearing or the other party consents.’ Therefore, the [plaintiffs’] failure to raise the

lack of spelling goals in their amended due process complaint ‘foreclosed its proper

consideration.’” (citations omitted)); B.P., 841 F. Supp. 2d at 611 (holding that the plaintiffs

“have waived the argument they and Ms. Goldfrank were denied meaningful participation in the

development of the IEP” by not raising it the due process complaint).

Plaintiffs argue that the issue was vaguely referred to in the complaint and raised by the

DOE in the hearing testimony and is therefore not barred from review by the Court. (Pls. Mem.

8–9.) Even assuming that the Court agreed with Plaintiffs that the issue was properly before the

IHO, the SRO and the Court, the claim lacks merit. Under the law, “parents [must be given the]

opportunity to meaningfully participate in the IEP development process.” Dirocco ex rel. M.D.,

2013 WL 25959, at *18. However, as long as the parents are listened to, this burden is met even

if the DOE ultimately decides not to follow the parents’ suggestions. Dirocco ex rel. M.D., 2013

WL 25959, at *20 (“[T]he District considered their suggestions as they were explicitly discussed

in the final IEP. ‘The fact that the District staff ultimately disagreed with the opinions of

plaintiffs and their outside professionals does not mean that plaintiffs were denied the

opportunity to participate in the development of the IEP[ ], or that the outcome[ ] of the CSE

meeting[ ][was] ‘pre-determined.’ A professional disagreement is not an IDEA violation.’”

(quoting P.K. ex rel. P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y.

2008))). “Parental participation requires an opportunity to examine records, participate in

meetings, and to obtain an independent evaluation.” Dzugas-Smith v. Southold Union Free Sch.

Dist., No. 08-CV-1319, 2012 WL 1655540, at *27 (E.D.N.Y. May 9, 2012) (quoting T.L. ex rel.

B.L. v. Dep’t of Educ. of N.Y.C., No. 10-CV-3125, 2012 WL 1107652, at * 14 (E.D.N.Y.

Mar. 30, 2012))).

The three members of the CSE who testified before the IHO consistently said that

everyone had input in the creation of the IEP and the entire content of the IEP was discussed at

the meeting. (See Tr. 219:20–220:3, 222:23–223:3, 224:21–23, 258:16–19; 483:22–484:1,

531:23–532:7.) E.F. testified that she had input and she thought the CSE members were “nice.”

(Tr. 531:23–532:7.) Robertson specifically testified that the IEP meeting “was a very long

meeting.” (Tr. 456:15–23.) Robertson agreed with the academic and social emotional

performance segments of the IEP. (Tr. 449:8–451:1, 452:13–454:5.) The IEP included F.F.’s

love of music because of a request from E.F. (Ex. B; Tr. 508:24–509:4.) All of the goals of the

IEP were determined with Robertson’s input and based on reports from therapists at the Rebecca

School and suggestions by the Parents, including adding ambulation as a goal at the Parents’

request. (Tr. 455:24–456:10; Ex. 7.) The record illustrates that the Parents and Robertson had

full participation in the CSE meeting even though DOE ultimately decided not to renew F.F.’s

placement in the Rebecca School and instead suggested a 6:1:1 placement in public school. See,

e.g., T.P. ex rel S.P., 554 F.3d at 253 (“There is . . . evidence that the parents meaningfully

participated in the July meeting, for example the Committee’s adoption in the IEP of the parents’

recommendations that Mamaroneck staff observe S.P. over the summer and meet with his home

providers, and that Mamaroneck staff receive training on how to educate S.P. We find that the

parents meaningfully participated in the development of S.P.’s IEP . . . .”); J.L., 2013 WL

625064, at *9 (finding that where the CSE accepted “nearly all of [the parents’ expert]

recommendations,” except for “the recommendation for private school,” there was no denial of a

FAPE); Dirocco ex rel. M.D., 2013 WL 25959, at *20 (noting that having the parents input at the

meeting is sufficient even if all of the parents’ recommendations are not adopted). The Parents

participated in the CSE, and F.F. was not denied a FAPE.

iii. Goals and Objectives

Plaintiffs argue that the SRO failed to adequately evaluate the goals and objectives in the

IEP because: (1) “The SRO failed to address [the Parents’] concern that the proposed IEP

offered insufficient Goals and Objectives for F.F.,” and (2) “the proposed IEP did not include the

methods of measuring F.F.’s progress, as is required.” (Pls. Mem. 9–11.) The SRO determined

the goals were vague on their own but were clarified by the objectives and, as a unit, the goals

and objectives did not deny F.F. a FAPE. (SRO Decision at 17–19.)

In looking at the goals of an IEP, “what is required . . . is that the goals be designed both

to ‘meet the child’s needs that result from the child’s disability to enable the child to be involved

in and make progress in the general education curriculum’ and to ‘meet each of the child’s other

educational needs that result from the child’s disability.’” C.H. v. Goshen Cent. Sch. Dist., No.

11-CV-6933, 2013 WL 1285387, at *12 (S.D.N.Y. Mar. 28, 2013) (quoting 20 U.S.C.

§ 1414(d)(1)(A)(i)(II)); see also Handberry v. Thompson, 446 F.3d 335, 350 (2d Cir. 2006)

(“[T]he IDEA requires that the IEP includes ‘a statement of measurable annual goals, including

academic and functional goals . . . .’” (quoting 20 U.S.C. § 1414(d)(1)(A)(i)(II)(aa)-(bb)). “In

this Circuit, courts are ‘reluctant to find a denial of a FAPE based on failures in IEPs to [identify]

goals or methods of measuring progress.’” J.L., 2013 WL 625064, at *13 (quoting P.K. v.

N.Y.C. Dep’t of Educ., 819 F. Supp. 2d 90, 109 (E.D.N.Y. 2011)); R.R. v. Scarsdale Union Free

Sch. Dist., 615 F. Supp. 2d 283, 295 (S.D.N.Y. 2009)); see also J.A., 2012 WL 1075843, at *8

(S.D.N.Y. Mar. 28, 2012) (“[C]ourts in this district have held that similar omissions of [goals

and objectives] on the IEP do not result in the loss of educational opportunity or lead to the

denial of a FAPE.”). “[A]s to the propriety of the goals themselves, deference to the reasoned

conclusions of the SRO as the final state administrative determination is appropriate. Indeed,

‘the sufficiency of goals and strategies in an IEP is precisely the type of issue upon which the

[IDEA] requires deference to the expertise of the administrative officers.’” C.H., 2013 WL

1285387, at *12 (alteration in original) (quoting Grim, 346 F.3d at 382); see also A.D., 2013 WL

1155570, at *10 (“[T]he sufficiency of goals and strategies in an IEP is precisely the type of

issue upon which the IDEA requires deference to the administrative officers.” (alteration in

original) (quoting Grim, 346 F.3d at 382)); J.L., 2013 WL 625064, at *13 (“The sufficiency of

goals and strategies in an IEP is quintessentially the type of issue on which deference to the

expertise of administrative officers is appropriate.”).

The SRO found that while the goals were vague, they were modified by more specific

objectives that could be implemented. (SRO Decision 17–20.) She determined that the 12