UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------------- x E.P. and E.D., on behalf of their son E.P. 14-CV-6032 (ARR)
Plaintiff, NOT FOR ELECTRONIC OR PRINT PUBLICATION -against- OPINION & ORDER THE NEW YORK CITY DEPARTMENT OF EDUCATION,
Defendant.
x ROSS, United States District Judge:
Plaintiffs E.P. and E.D. bring this action against the New York City Department of
Education ("DOE") on behalf of their son, E.P. (collectively with parents, "plaintiffs"), an
autistic student who suffers from significant delays in the development of his cognitive,
linguistic, interpersonal, and motor skills. Plaintiffs contend that the DOE failed to offer E.P. a
"free and appropriate public education" for the 2011-2012 school year as required under the
Individuals with Disabilities Education Improvement Act (the "IDEA"), 20 U.S.C. § 1400 et seq.
Plaintiffs rejected public schooling, enrolled E.P. in a private school for 2011-2012, sought
tuition reimbursement, but were twice denied, and now move for summary judgment in this case,
seeking reversal of the administrative decisions that denied reimbursement. The DOE cross-
moves for summary judgment, contending that the administrative decision should be affirmed.
For the reasons set forth below, Plaintiffs' motion for summary judgment is denied in its entirety
and the DOE's cross-motion is granted.
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Statutory Background
The IDEA grants students with disabilities the right to a "free appropriate public
education ... designed to meet their unique needs." 20 U.S.C. § 1400(d)(l)(A-B). Using the
carrot of federal funding, the act requires states to create an "individualized education program"
("IEP") for each disabled student every school year. The IEP is a written plan that details a
student's current capabilities and deficiencies, sets annual goals and short-term benchmarks, and
prescribes specific educational services for the upcoming school year. D.D. ex rel. V.D. v.
N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006). After the IEP is created, the student
is assigned to a local public school.
In New York, the yearly IEP is created by a local "committee on special education"
("CSE") composed of the student's parents, a special education teacher, a school psychologist, a
representative of the school district, a local parent, and other uniquely informed individuals such
as the student's current or former teachers. See N. Y. Educ. Law § 4402(b)(1 ).
After the CSE drafts the student's IEP, his or her parents may challenge whether the IEP
actually provides a free appropriate public education by requesting an administrative hearing
before an "impartial hearing officer" ("IHO"). At the hearing, parents may be represented by
counsel an call and cross-examine witnesses, including educational experts. The IHO's decision
may be appealed to a "state review officer" ("SRO"), and that decision may, in turn, be appealed
to the district court. See 20 U.S.C § 1415(i)(l)(B); 20 U.S.C. § 1415 (i)(2)(A); N.Y. Educ. Law§
4404(3)(a).
While contesting the adequacy of the educational services proposed in the IEP, parents
may enroll their child in private school and initiate a reimbursement action against the local
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school district for tuition costs. 20 U.S.C. § 1412(a)(10)(C). Under the three-step Burlington I
Carter test, parents are eligible for reimbursement if: 1) the IEP was inadequate to afford the
child an appropriate public education, or had procedural infirmities, 2) the private program met
the student's special education needs and 3) the equities favor reimbursement. See Florence
Cntv. Sch. Dist. Four v. Carter, 510 U.S. 7, 12-14 (1993).
If, on review, the IEP is found adequate - i.e., it was "reasonably calculated to confer an
educational benefit" - there is no need for the IHO, the SRO or the reviewing court to consider
the second and third steps. T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 417-418 (2d
Cir. 2009); M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 (2d Cir. 2000) ("If the challenged
IEP was adequate, the state has satisfied its obligations under the IDEA and the necessary
inquiry is at an end.").
Factual and Procedural Background
1. E.P. 's educational history
E.P., who was born in January 2004, was diagnosed with pervasive developmental
disorder and continues to suffer from deficiencies in his speech, attention, motor skills, and other
functions. IHO Hearing Transcript at 391-392. The IEP under review here was created in March
2011. In July 2010, nine months before the IEP drafting, E.P.'s "cognitive abilities, academic
achievement, [and] social and behavioral functionings" were described in a report as "below age
expectancy." Psycho-Educational Assessment Report, attached as Ex. H to IHO record, at 9.'
The report states that E.P.'s attention span was short and he was "distracted easily from a
task by anything near him, such as a pencil, an eraser or a clock." Id. at 3. E.P. was "short of
verbal communication, and only one-syllable words pronounced repetitively could be spoken by
him, such as cat, tree, or dog." Id.
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For the 2010-2011 school year, E.P. 's parents enrolled him at the Rebecca School
("Rebecca"), a private for-profit school designed specifically for autistic students. A DOE
observer visited E.P.'s class at Rebecca in October 2010 and reported that E.P. laid face down on
a trampoline and was nonresponsive while his teacher explained a calendar and read from a
storybook, but was later roused by a snack, which he ate quietly without interacting with the five
other students at his table. DOE Classroom Observation, attached as Ex. S to IHO record, at 2.
Afterwards, E.P. played with putty and was able to arrange toy numbers in the proper sequence,
starting with one and ending with ten. Id. Throughout the observation, his teacher or one of the
teacher's three assistants encouraged E.P. to pay attention and to comport with classroom norms,
such as putting away toys after use.
A December 2010 progress report by E.P.'s teacher at Rebecca noted that he often
mouthed small objects and would "become upset, run around the classroom in a continuous loop,
or laugh hysterically" when "a limit [was] set, during transitions, or after engaging in an overly
exciting physical interaction." Interdisciplinary Progress Report, attached as Ex. Q to IHO
record, at 1. By this time, E.P. used "one to two word utterances," paired with gestures, in order
to communicate, could sight-read about ten words, and could perform addition for numbers up to
ten. Id. at 2-3. He was able "to navigate throughout the school building," independently use the
bathroom, and "wash his hands with minimal prompts from staff," although his occupational
therapist noted that he was clumsy and often bumped into objects and people. Id. at 5-6.
2. The CSE and the 2011-2012 IEP
On March 9, 2011, the CSE met to edit a draft IEP for E.P.'s 2011-2012 school year.
Present in person or telephonically were E.P.'s father, a DOE special education teacher named
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Feng Ye, a DOE school psychologist, a parent member, E.P.'s then-current teacher at Rebecca,
and a social worker from Rebecca. Tr 33-34. 1 The CSE team reviewed the classroom observation
and progress reports mentioned above. Tr. 35-38.
For the 2011-2012 IEP, the CSE agreed to change E.P.'s classification from Speech
Impairment to Autism, and determined that E.P. needed consistent 12-month schooling rather
than the typical 10-month school year. Tr. 38-39. Next, the group considered staffing ratios,
decided that student I teacher I teacher assistant ratios of 12: 1: 1 and 8: 1: 1 were inappropriate
given E.P.'s distractibility and frequent need for adult guidance, and recommended a 6:1 :1
classroom, with E.P. to be assigned his own additional 1:1 full-time teacher assistant (also
known as a crisis management paraprofessional). Tr. 40-43.
The IEP recommended that E.P. be given extra time for tasks, a visual schedule to ease
difficulties with transitions, extra breaks, and use of sensory tools2 throughout activities. 2011-
2012 IEP, attached as Ex. D to IHO record, at 3. The IEP provided that E.P. should receive
individual speech and language therapy, individual occupational therapy, and individual
counseling, each for thirty minutes twice a week. Id. at 18. The IEP also provided group physical
therapy twice a week, and group speech and occupational therapy, once a week each. Id. The IEP
recommended a Behavior Intervention Plan for E.P. and noted that "[m ]odifications to his
seat/chair may be warranted to help him focus his attention." Id. at 4.
Finally, the IEP listed annual goals for E.P., such as "develop basic math concepts" and
"improve his engagement and pragmatic language skills," coupled with specific short-term
objectives such as "read numbers 1 to 20 with 80% accuracy" and "appropriately gain attention
1 "Tr." refers to the transcript of the proceedings before the Individual Hearing Officer included in the IHO report. 2 Sensory tools are objects such as weighted vests, chew toys, bristled wands, elastic wraps, and aerosol shaving cream, that can help regulate autistic students and others with similar disabilities by providing pleasurable and predictable tactile stimulus.
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by stating the communicative partner's name when provided with an initial phonetic or gestural
cue, in 8/10 opportunities." Id. at 7, 10. The specific school (known as a "placement site") was to
be determined later.
3. Plaintiffs' response to the 2011-2012 IEP
On May 4, 2011, before learning E.P.'s specific public school placement, plaintiffs
enrolled him at Rebecca for the 2011-2012 school year, beginning July 5, 2011. Enrollment
Contract, attached as Ex. K to IHO record, at 1.
On June 15, 2011, the DOE issued a notice confirming the IEP and assigning E.P. to P.S.
226 at P.S. 208, a specialized school for students with severe developmental disabilities. Final
Notice of Recommendation, attached as Ex. E to IHO record.
On June 24, 2011, in a letter to the DOE, plaintiffs rejected the IEP and school
placement. E.P.'s father wrote that he and a teacher from Rebecca had visited the P.S. 226 school
and found it unsatisfactory. According to plaintiffs, "there were lots of materials around the
classroom," insufficient sensory supports, a "noisy and busy cafeteria," and not enough time for
students to eat lunch. Parents' Letter to CSE, attached as Ex. F to IHO record. Plaintiffs
informed DOE that they would continue to enroll E.P. at Rebecca.
A week later, on July 1, 2011, plaintiffs filed the required due process complaint, which
reiterated prior concerns about the IEP. Due Process Complaint, Ex. A, at 3. Plaintiffs alleged
that the P.S. 226 classrooms "contained lots of materials" that would be "highly distracting" and
"overwhelming." Id. According to plaintiffs, there were "no sensory supports or equipment" in
the classroom, the occupational and physical therapy areas "were insufficient to meet [E.P. 's]
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needs" and were "not isolated," and there was not enough time allotted for E.P. to transition
between lunch and classes. Id.
4. The IHO Decision
Having received the plaintiffs' due process complaint, the IHO convened hearings on
January 3 and February 14, 2012. The IHO heard testimony from E.P.'s parents, Samantha
Stabile (E.P.'s then-current teacher at Rebecca), Tina McCourt (program director at Rebecca),
Feng Ye, (the special education teacher from the initial CSE), and Ana Rand, a special education
teacher who likely would have taught E.P., had he attended P.S. 226. Tr., Index.
Ms. Rand provided details about P.S. 226 that were unavailable during the CSE's IEP-
writing process, when E.P. 's school placement had not yet been determined. Ms. Rand testified
that her class had two students at the beginning of the 2011-2012 school year, both of whom
were diagnosed with autism and were learning at a kindergarten level. Tr. 126-127. Ms. Rand
also testified that P.S. 226 was capable of executing the requirements in the IEP. To help E.P.
with transitions, his teacher could develop a personal schedule, discuss changes in the schedule,
and remind him of upcoming transitions. Tr. 134-136. To help E.P. with distractions, his teacher
could remove charts and other posters from the walls and place E.P.' s desk so that he would not
be distracted by classroom materials. Tr. 136-138. Finally, to help with E.P.'s potential problems
with a noisy cafeteria located far from his classroom, his teacher could let him eat in the
classroom with her and the paraprofessional. Tr. 151. Although her current students did not
necessarily require sensory breaks, Ms. Rand provided breaks and her classroom had sensory
tools the students could choose to use, with more tools available from the school's therapists. Tr.
129, 139-140.
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E.P.'s father also testified at the hearing. He stated that his visit to P.S. 226 convinced
him that the building was inadequate for his son, specifically, that the classroom wall materials
would be too distracting, the therapy room would be occupied by too many people, and the lack
of an elevator meant E.P. was at risk of falling on the stairs, possibly injuring himself and others.
Tr. 366-370.
The IHO rendered a decision on April 18, 2012, finding that the IEP and P.S. 226 offered
E.P. a free and appropriate public education, and thus denied reimbursement. The IHO report
summarized the testimony of the witnesses and explained the applicable legal standards. See
IHO Findings of Fact and Decision, at 2-7. The IHO found that the CSE had meaningfully
integrated the concerns of E.P. 's parents and his Rebecca teacher and had tried to "mirror as
closely as possible [E.P.'s] current class setting of 8:1 :3" by placing him in a 6:1: 1 class with his
own 1: 1 paraprofessional and by continuing occupational, physical, and speech therapy at the
same rate and duration provided at Rebecca. Id. at 8.
The IHO noted that plaintiffs were particularly concerned with the specific site, P.S. 226,
not with the IEP itself, but found that most of their complaints could have been addressed by
adapting a classroom to meet E.P.'s needs, as Ms. Rand described in her testimony. Id. The IHO
found that the DOE's set of sensory tools, while limited in comparison to the offerings of a
private autism-specific school, was adequate, and plaintiffs could not show that E.P. needed each
specific device available at Rebecca. Id. at 9. Finally, the IHO found no evidence "that the noise
level in P.S. 226 was so severe that the student could not learn," and no evidence that the stairs
would be an inappropriate safety risk. Id. at 8.
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5. The SRO Decision
Plaintiffs appealed to the State Review Officer, who affirmed the IHO's determination
that E.P. had been provided a free and appropriate public education. The SRO evaluated not only
the plaintiffs' core concerns with the program and school offered to E.P., but also the legal
arguments raised by counsel. Against plaintiffs' contention, the SRO found that the IHO had
properly placed the burden of proof on the DOE. State Review Officer Decision, at 8. The SRO
also found that the CSE had acted properly by not considering private placement after it
determined it could craft a public school program to meet the student's educational needs. Id. at
9.
As to the merits of the IEP, the SRO found that a 6: 1: 1 class with a 1: 1 paraprofessional
would, in the language of the IDEA statute, "confer educational benefits upon the student," by
aiding E.P. with transitions, attention, and self-regulation. Id. at 14.
Because the bulk of plaintiffs' complaints were directed not at the written IEP itself but
instead at P.S. 226's supposed inability to implement the IEP, the SRO engaged in a lengthy
analysis of Second Circuit caselaw to determine whether it would be appropriate to rule on this
speculative, failure-to-implement argument. Id. at 14-16. The SRO concluded that when the
student never attends the assigned public school, the law bars a counterfactual retrospective
analysis of what problems might have arisen. Id. Accordingly, the SRO ruled that plaintiffs could
only challenge the written elements of the IEP and could not prevail on any claims that P.S. 226
would not have properly implemented the IEP. Id. at 16.
In a belt-and-suspenders approach, the SRO then analyzed the failure-to-implement
arguments he deemed inappropriate and found that, even if such arguments were permissible,
E.P.'s IEP goals could have been met at P.S. 226. The SRO found no evidence showing that P.S.
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226 "would have deviated from substantial or significant portions of the student's IEP in a
material way." Id. at 17. The only concerns about P.S. 226's ability to educate E.P. stemmed
from a school visit where E.P. 's father and his Rebecca teacher criticized the layout of the
classroom and school building. Id. The SRO found evidence in Ms. Rand's testimony that the
materials on the walls, the stairs, the noise level in the school, and other issues raised by
plaintiffs could have been accommodated by the teacher and the 1:1 paraprofessional, by moving
or removing materials in the classroom, accompanying the student down the stairs, and letting
him eat in class if he had difficulty with the cafeteria. Id.
In conclusion, the SRO determined that the DOE had offered E.P. a free and appropriate
public education, so there was no need to consider the second and third steps of the Burlington I
Carter reimbursement test. Id. at 18.
Standard of Review
A district court reviewing administrative decisions in IDEA cases '"must engage in an
independent review of the administrative record and make a determination based on a
preponderance of the evidence."' M.H. v. New York City Dep't of Educ., 685 F.3d 217, 240 (2d
Cir. 2012) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)).
Courts lack "the specialized knowledge and experience necessary to resolve ... questions
of educational policy," so they must give "due weight" to the administrative proceedings.
Gagliardo, 489 F.3d at 113 (internal quotation marks omitted). Courts generally "defer to the
final decision of the state authorities, even where the reviewing authority disagrees with the
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hearing officer." 3 M.H., 685 F.3d at 241. "[A] court must defer to the SRO's decision on matters
requiring educational expertise unless it concludes that the decision was inadequately reasoned."
R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189 (2d Cir. 2012). Deference is
particularly appropriate when the state officer's review "has been thorough and careful," but the
court does not "simply rubber stamp administrative decisions." Walczak v. Florida Union Free
Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).
Discussion
The ultimate question for this court is whether, giving appropriate deference to state
administrative officers, the DOE offered E.P. a free appropriate public education when it offered
the accommodations and services listed in the 2011-2012 IEP. This is a two-part inquiry. First,
courts examine "whether the state has complied with the procedures set forth in the IDEA."
Cerra v. Pawling Cent. School Dist .. 427 F.3d 186, 192 (2d Cir. 2005). Second, courts examine
whether the IEP was substantively adequate, i.e., whether it was "reasonably calculated to enable
the child to receive educational benefit[s]." R.E., 694 F.3d at 189-90. Plaintiffs have not
contested the procedural adequacy ofE.P.'s 2011-2012 IEP, instead challenging only its
substantive adequacy.
When determining whether a student was offered a free appropriate public education
under IDEA, "the IEP is the centerpiece of the system" and "must be evaluated prospectively as
of the time it was created." R.E., 694 F.3d at 188. Thus, "speculative" arguments about
implementation of the IEP are forbidden, and "it is error to find that a [free appropriate public
education] was provided ... because of actions that [a] specific teacher would have taken beyond
what was listed in the IEP." Id. at 187 (emphasis added).
3 In this case, the IHO and SRO agreed
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This rule constrains both sides. The school district cannot rehabilitate a facially deficient
IEP by having a teacher testify "that certain services not listed in the IEP would actually have
been provided" at the public school. Id. at 185, 187. At the same time, parents cannot challenge
the IEP on the basis that "the school district will not adequately adhere to the IEP," even if they
show that the student's assigned school has had past difficulties providing the services called for
(such as occupational therapy). Id. at 195. That type of implementation challenge can only be
brought "in a later proceeding to show that the child was denied a [free appropriate public
education] because necessary services included in the IEP were not provided in practice." Id. at
187 n. 3.
Plaintiffs list multiple criticisms of the 2011-2012 IEP, but they neither claim that the
package of services offered by DOE was inadequate, nor do they suggest any additional services
that would have rendered the IEP satisfactory. Instead, plaintiffs question the ability of P.S. 226
to provide the listed services in a satisfactory manner. Although their criticisms are styled as
objections to the written IEP, they are, in substance, objections to the brick-and-mortar school
building and the ethos of the school's special education program. But, because these criticisms
are based on a visit to the specific classroom that E.P. would have attended, they are not entirely
"speculative" in the same sense as vague predictions of IEP implementation failure. Thus, the
plaintiffs' objections to P.S. 226 should be individually evaluated on their merits i!}stead of
broadly dismissed as speculative. See B.K. v. N.Y.C. Dep't of Educ., 12 F. Supp. 3d 343, 371
(E.D.N.Y. 2014) (evaluating "arguably non-speculative" objections based on prior school visit).
First, plaintiffs argue that E.P.'s potential classroom at P.S. 226 was inadequate because
''there were materials on the walls," which could distract E.P., the program "required students to
sit at desks, which E.P. could not do" because he lacked strength in his torso, and there were
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"many items everywhere," "inedible objects all around that he could mouth." Pl. Mem. at 8-9.
The IHO and the SRO reasonably concluded that these concerns could have been remedied by
the teachers and staff at P.S. 226. The IEP did not require E.P. to sit at a desk, although it
provided physical therapy for him to build his core muscles. Ms. Rand's testimony explained that
teachers could have rearranged the classroom to meet E.P. 's unique needs. Removing posters,
rotating desks, repositioning furniture and stowing loose objects are not complex, difficult, or
expensive tasks, so there is no reason to believe the school would have failed to implement these
accommodations. In relying on this testimony, the IHO and SRO did not violate the rule against
curing a deficient IEP through retrospective testimony about additional, unwritten services - they
merely used the testimony to demonstrate the P.S. 226's ability to provide the services already
written into the IEP.
Second, plaintiffs argue that P.S. 226 lacked the sensory tools necessary to keep E.P.
regulated and attentive. Plaintiffs accuse the IHO of erroneously concluding that "the class was
equipped with sensory devices that the student could use," despite there being "no such
testimony from [Ms. Rand]." Pl. Mem. at 12. In reality, Ms. Rand testified that she had sensory
devices in her classroom and had additional devices available through the occupational therapist,
including the weighted vests specifically called for in the IEP. Tr 129-130.
Furthermore, the record does not show that the DOE was unwilling or unable to obtain
the equipment necessary to satisfy the IEP, had E.P. actually attended public school. "The mere
fact that [the student's parent] did not observe 'various [specified] equipment' when he visited
[the assigned public school] is insufficient to establish that the IEP would not have been properly
implemented." B.K., 12 F. Supp. 3d at 372 (quoting N.K. v. N.Y.C. Dep't of Educ., 961 F.Supp.
2d 577, 592 (S.D.N.Y. 2013) ("The fact that Plaintiffs did not observe any sensory equipment on
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their site visit is insufficient to demonstrate that [the proposed placement] lacked such equipment
or that the school would not obtain the equipment necessary to implement [the student's] IEP
should [he] attend the school.")).
Third, plaintiffs argue that it is inappropriate for E.P. to be in a crowded lunchroom or in
a noisy environment, "[y]et those are core features in 6:1:1 programs." Pl. Mem. at 16. It is clear
from the record that E.P.' s specific sensitivity to distractions and noise is an obstacle to his
education, but it is equally clear that his teachers at P.S. 226 could have let him eat in the
classroom to avoid the overstimulating cafeteria. The IEP does not require that E.P. eat in the
cafeteria. As to the "noisy environment," the IHO and SRO concluded that any school or
classroom populated by autistic students would have some degree of noise, which was confirmed
by testimony that E.P. had made progress at Rebecca, even though his classroom there was also
described as noisy. Tr. 204-205.
Fourth, plaintiffs argue that P.S. 226 was structurally inadequate for E.P. because his
classroom would have been on the fourth floor, and he has trouble descending stairs. His father
testified that E.P. needs to hold hands with an adult "when he goes down stairs." Tr. 369. The
IEP addressed this concern by assigning a 1: 1 paraprofessional who would have accompanied
E.P. at all times, and the SRO recognized that this accommodation "mitigates the concern that
stairs or other impediments in the assigned school would have posed a safety hazard." SRO at
17. Plaintiffs' briefs entirely ignore the IEP' s provision of a 1: 1 dedicated paraprofessional, and
fail to explain why an ever-present adult was not sufficient to mitigate the risk of harm.
Finally, plaintiffs argue that the IEP was deficient because it failed to consider private
placement as an alternative. This argument fails as a matter of law because a "free and
appropriate public education" is an absolute standard, not a comparative or relative standard. The
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public education offered is not diminished by the option of higher-quality private schooling, nor
is the public education deemed sufficient because it surpasses the poor quality of local private
schools. Once the CSE has determined that a public program is appropriate, there is no legal
requirement to weigh it against private alternatives. M.C., 226 F.3d at 66 (holding that courts
need not assess adequacy of private placement if IEP is determined to be adequate); Walczak,
142 F.3d at 123.
CONCLUSION
The decisions of the Independent Hearing Officer and State Review Officer are affirmed,
the defendant's motion for summary judgment is granted, and plaintiffs' motion for summary
judgment is denied. The Clerk of Court is directed to enter judgment accordingly.
SO ORDERED.
s/Allyne R. Ross Allyne R. !oss ,,, ~ United S~ s District Judge
Dated: August J3 , 2015 Brooklyn, New York
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