E.D.N.Y.: J.B. et al. v. New York...

UNITED STATES DISTRJCT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------------)( J.B. , individually and on behal f of K.B. ,

Plaintiffs, MEMORANDUM AND ORDER 16-CV-398 (RRM) (RLM) -against-

THE NEW YORK CITY DEPARTMENT OF EDUCATION,

Defendant. ------------------------------------------------------------------)( RO SL YNN R. MAUSKOPF, United States District Judge.

On April 15, 20 15, plaintiff J.B. (the "Parent") commenced this action on behalf of her

child , K.B ., pursuant to the Individuals With Di sabilities Education Improvement Act, 20 U.S.C.

§ 1400 et seq. (" IDEA"). (Comp!. (Doc. No I .) The Parent alleges that the New York City

Department of Education ("DO E") fail ed to provide a "free and appropriate public education"

("F APE") for the 20 14-20 15 school year, and that the Parent's p lacement of K.B. at a private

school was the least restrictive environment available to meet her needs.

On January 20, 20 15, the Parent filed a due process complaint seeking tui tion

reimbursement fo r K.B. 's attendance at the Rebecca School for the 2014-20 15 school year. (Id.

at 5 15.) On Jul y 28, 20 15, an Impartial Hearing Officer ("IHO") ru led against the Parent and

found that K.B. was provided a F APE. (Id at 3 1-53 .) T he Parent appealed to the New York

State Education Department Office of State Review, and on November 4, 2015, the State Review

Officer ("SRO") affirmed the IHO's decision. (Id. at 6-29.) The Parent now challenges the

SRO ' s decision in thi s Court.

Before the Court are the parties' cross-motions for summary judgment. For the reasons

set fo rth herein, the Parent 's moti on for summary judgment (Pet' r. Mem. (Doc. No. 24)) is

denied, and the DOE's cross-motion fo r summary judgment (Def. Mem. (Doc. No. 23)) is

granted.

BACKGROUND

I. The IDEA

The IDEA provides federal funds to states that assure all children with di sabilities the

right to a FAPE . 20 U.S.C. §§ 141 2(1), 141 5. A FAPE must include special services tailored to

meet the child 's particular needs. See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 11 9,

122 (2d Cir. 1998); 20 U. S.C. § 140 l (a)( l 8). For an IEP to be adequate under the IDEA, the IEP

must be likely to produce progress rather than regression and afford "an opportunity greater than

mere trivial advancement." M H v. New York City Dep 't ofEduc., 685 F.3d 2 17, 224 (2d Cir.

20 12) (internal quotation marks o mitted). However, the IDEA does not require the IEP to

furni sh every special service necessary to max imize each child's potential. Id.

New York receives federal fund s under the IDEA, and , therefore, must comply w ith its

requirements. Accord ingly, the DO E must, at least annually, set fo rth the student's particular

needs - and the services required to meet those needs - in an IEP that includes descriptions of:

( I ) the student's present levels of academ ic achievement and functional performance; (2) annual

goals, including short-term instructional obj ectives ; (3) how the student is progress ing toward

these annual goals; (4) the special education, related serv ices, and supplementary aids and

devices that the student w ill receive; (5) the extent to which the student wi ll be able to participate

in a regular educational program ; (6) the proposed services' projected initiation date and

duration; and (7) objective criteria, eva luation procedures, and schedules for determining, on at

least an annual basis, whether the student is achieving his instructional obj ectives. 20 U.S.C. §

1414(d).

II. K.B.'s Medical and Educational History

The fo llowing facts are not in dispute. During the relevant period for purposes of this

litigation, 20 14-2015, K.B. was 15 years old . K.B. was first diagnosed with autism in 2008, and

she presents with a variety of severe deficits. (Id ) For example, K.B. has developmental delays,

w hich require fu ll modification of her education curriculum in terms of depth, breadth, and

pacing of curricular activities. (Id. at 625.) 1 She presents with deficits in all areas of language

and communication, visual-spatial perception, sensory processing, and oral motor, fine motor,

and gross motor skills. (Id at 599- 620.) At the time of the CSE meeting, K .B. was not yet fully

toilet trained. (Id at 624.)

K.B. requires adu lt assistance to succeed in a school setting. In order to be successful in

a classroom, K.B . needs a sensory diet at least every two hours. (Id at 468, 604, 6 15.) For

example, she requires brushing protocol , j oint compression, and walking on a treadmill to

prevent dysregul ation. (Id.) When surprised by a loud noise, K.B. physically "freezes" and

becomes unsure of depth percepti on. (Id. at 468, 599, 6 11 .) In addition, K.B. requires an oral-

motor protocol to avoid choking. (Id at 477, 483, 608, 619.)

Due to K.B. 's lack of progress from kindergarten tlu·ough eighth grade, the Parent filed a

due process complaint fo r the 201 2-20 13 school year. (Id. at 255.) On May 2, 201 3, the DOE

autho ri zed the Parent to place K.B. in a state-approved private school. (Id. at 448.) On July 3,

201 3, the Parent placed K.B. at the Rebecca School, and the DOE fu nded such placement for the

20 13- 2014 school year. (Id. at 259.)

III. IEP for the 2014-2015 School Year

1 For ease of reference, citations to the Admi nistrative Record uti lize the Electronic Case Filing System ("ECF")

pagination.

In June 2014, K.B's Comm ittee on Special Education (" CSE") met to establish her IEP

recommendation for the 2014-2015 school year. (Id. at 621 - 22, 641.) The CSE team included:

the Parent; K.B. 's teacher at the Rebecca School, Sara Gerstein; social worker at the Rebecca

School, Bonnie Waring; DOE school psyc hologist and district representative, Rose Fochetta; and

DOE special education teacher, Feng Ye. (Id.) The two DOE members recommended, and the

CSE adopted, a twelve-month, 6: I+ I program (6 students, 1 teacher, and 1 aide) in a District 75 2

program for students with disabilities. (Id. at 642.) The CSE further recommended one

individual 45-minute session and one group 45-minute session of occupational therapy per week,

two individual 45 -minute sessions and one group 45 -minute session of speech-language therapy

per week, two individual 45-minute sessions of physical therapy per week, adapted physical

therapy twice per week, travel training once per week, one individual 45 -minute session of

counseling per week, and one parent counse ling and training session for 60 minutes per month.

(Id. at 627- 628.) The IEP recommended the use of visual cues, teacher prompting, hand over

hand support for writing, and a sensory diet. (Id at 625.) The IEP included twelve annual goals,

each with short-term objectives and progress checks, addressing the development of basic

li teracy, math, motor, language, and visual spatial ski lls. (Id at 627-632.)

On June I 0, 2014, the DOE sent the Parent a prior written notice summarizing the IEP.

(Id at 644.) On June 16, 20 14, the DOE sent the Parent a school location Jetter proposing PS

Q1773 to implement K.B .'s JEP for 20 14-20 15 year. (Id. at 648.) The location letter also

provided information about how the Parent could visit K.B. 's placement schoo l. (Id.) On June

2 District 75 provides citywide educational, vocational, and behavior support programs for students who are on the autism spectrum, have significant cognitive delays, are severely emotionally challenged, sensory impaired and/or multiply disab led. District 75 consists of 58 school organizations, home and hospital instruction and vision and hearing services. (Def. Mem. at 4) (citing NYC DOE, http://schools.nyc.gov/ Academics/Spec ia IEd ucation/ D7 5/defau It. htm) 3 PS Q 177 was a District 75 school. See, FN 2, supra.

20, 2014, the Parent sent a letter complaining that she was unable to reach the " placement

officer" at PS Q177 in order to arrange a visi t before leaving fo r vacation. (Id. at 456.) The

Parent added:

If the CSE does not work with me to provide an appropriate educationa l program, I wi ll be making a unilateral placement in a private school and will seek to recover the cost of tuition and related expenses from the New York City Department of Education.

(Id.) The Parent unilaterally re-enrolled K. B. in the Rebecca School fo r the 20 14-20 15 schoo l

year. (Id. at 461. ) On August 26, 20 14, the DOE sent a letter informing the Parent that it

deemed the program and placement at PS Q 177 to be appropriate for K.B. (Id. at 460.) On

January 20, 2015, the Parent sought review before an impartial hearing officer. (Id. at 515.)

IV. IHO and SRO Hearings

The IHO presided over three days of testimony between April 21, 2015, and June 3,

2015. (Id. at 125-230.) On Jul y 28, 2015, the IHO issued his decision finding that the DOE

offered a FAPE to K.B. for the 2014-2015 school year. (Id. 31 - 53.) The THO found that the

IEP reflected the evaluative information available to the CSE, had sufficiently clear and

measurable goals, and provided sufficient support to meet K.B.'s needs. (Id.) Specifically, the

IHO found that the IEP provided sufficient direct intervention and support for K.B. 's

management needs, including "hand over hand support for writing" and "teacher prompting."

(Id. at 50.) The IHO further noted that the TEP contained sufficient annual goals in connection

with K.B. 's management needs. (Id at 51.) In addition, the THO found that the CSE's

recommendation exceeded the amount of occupational therapy the student received at the

Rebecca School during the 2013-20 14 schoo l year. (Id.) With respect to K.B.'s oral motor

needs, the IHO found that a speech-language therapist could develop an "oral motor protocol"

for the student and that, therefo re, any failure to specify a "protocol" in K.B. 's IEP did not rise to

a denial ofa FAP E. (Id.) Ultimately, the !HO concluded that the June 2014 IEP offered K.B.

the opportunity to progress in the least restrictive environment available to meet her needs. (Id.

at 53.)

On November 4, 2015 , the SRO issued a detailed deci sion affi rming the JHO's decision.

(lei. at 6- 29 .) First, the SRO found that the IEP provided sufficient annual goa ls and short-term

o bjectives. (Id. at 10-12.) Procedurally, the SRO found that even if the IEP 's annual goals were

not finali zed until after the meeting, " the parent's opportuni ty to participate in the CSE meeting

was not infringed" because she was involved in the development of the IEP. (Id. at 10-11.)

Substantively, the SRO found that the IEP' s annual goals were sufficiently wide-ranging, and

complete with required _criteri a for evaluating progress. (Id. at 11 .) To the extent that the annual

goals were overbroad, the SRO found that the IEP's "corresponding short-term obj ectives

mitigate[d) the defect by providing sufficient specificity to evaluate the student 's progress." (Id.)

Specificall y, to the Parent' s contentio n that the IEP did not contain any fine-motor goals, the

SRO found that it included " 14 short-term objectives that addressed fine motor needs" and " hand

over hand support fo r wri ting. " (Id. at 12.) In turn, the SRO found that " the evidence in the

hearing record demonstrates that the annual goals in the June 20 14 IEP, combined w ith the

corresponding short-term objectives, were adequate to address the student's needs and provide

for an appropriate method of measm ement or evaluative procedure." (Id. at 12.)

Second, the SRO found that "a 12-month school year program in a 6: 1+ 1 special class

placement, together with adapted physical education, travel training, annual goals and short-term

o bj ectives, related serv ices, and strategies to address the student's management needs" was

" reasonably calculated" to provide K .B . with a F APE. (Id. at 15.) That is, w hil e a 6: 1+ I

program may not be "ideal" for K.B in the eyes of the Parent, it reflected a "reasonable

compromise to achieve a sufficient amount of support in the classroom" for K.B. (id. at 13-14.)

Third, the SRO found that the IEP provided fo r adequate occupational therapy and

sensory support. (Id. at 16.) That is, it "contained sufficient info rmati on regarding the student's

sensory needs, included appropri ate OT goals, reflected an increase in the duration of OT

services, and, while fa iling to detail a location for OT services with specifi city, recommended

sufficie nt and appropriate OT services for the student to receive educational benefit." (Id.)

Fourth, the SRO addressed the Parent 's contention that the IEP fai led to include oral-

motor exerc ises that suffi cientl y address K.B.'s propensity to choke. (Id. at 18.) The SRO found

that while the TEP did not address any specifi c exercise to address choking, it did include an

"oral motor protoco l" and three speech-language therapy sessions per week. (Id.) Based on

these recommended exercises, the SRO found that the failure to directly address choking did not

ri se to a denial of a FAPE. (Id. at 19 .)

Fift h, the SRO addressed whether the IEP's failure to recommend music therapy, in lieu

of traditional counseling to address "social/emotional and internal thoughts," amounted to denial

of a FAPE. (Id. at 19.) The SRO fo und that while K.B. "may have bene fi tted fro m music

therapy due to her love of music," she could also "initiate interaction, share attenti on, and

communi cate with peers and adults outside of musical activities." (Id. at 20.) Thus, denial of the

Parent's preferred method of socio-emotional counseling did not consti tute denial of a FAPE.

(Id.)

Sixth, the SRO fo und that the TEP provided sufficient "transition services" - goals to

prepare K. B. for li fe post-educati on. (Id. at 19.) Here, the SRO found that the CSE team

considered the results of a March 201 3 vocational assessment in tailoring " long-term goals for

living, working, and learning as an adult." (Id. at 20.) The IEP further outlined K.B. ' s need for

"adult support with shopping, traveling, and financial management," and it "reflected the

parent's desire for the student to have additional schooling after high school." (Id. at 20.) To

these ends, that IEP recommended, inter alia, that K.B.'s placement schoo l implement:

(I) instruction to facilitate fo llowi ng 2-step novel directions; (2) related services to address dressing and toi leting skills; and (3) community experiences to facilitate travel training and ski lls related to identifyi ng strangers and helpers in the community.

(Id. at 2 1.) The IEP also included corresponding goals and short-term objectives. As such, the

SRO found that "the June 2014 IEP adequately set forth the student's transition needs and post-

secondary goals." (Id)

Finally, the SRO addressed the Parent's allegationsthat the DOE failed to assist her in

reaching K.B .'s placement school to schedule a visit. (Id) The SRO fo und that "the parent's

on ly claim relating to the assigned public school site arises from her difficulty reaching the

school to schedule a visit and the district' s fai lure to offer help in contacting the school after the

parent's letter to the district dated June 20, 20 14." (Id) However, the SRO noted that the DOE

sent the Parent a Jetter outlining the name, number, and address of a placement officer to help the

parent aITange a visit. (Id.) In turn, the SRO found that the Parent was provided with the

relevant information about K.B. 's placement schoo l, and thus the parent' s claim that the district

impeded her opportunity to participate in the decision-making process concerning the student's

educational program or placement is without merit." (Id at 21.)

Based on the forgoing analysis, the SRO concluded that the June 20 14 IEP offered K.B.

the opportunity to progress in the least restrictive environment available to meet her needs. (Id.)

ST AND ARD OF REVIEW

A summary judgment motion in an IDEA case serves as a " pragmatic procedural

mechanism for reviewing" an administrative decision. Lil/bask ex rel. Mauc/aire v. Conn. Dep 't

of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005) (i nternal quotation marks omitted); see also L.K. v.

New York City Dep 't ofEduc., 201 1 WL 127063, at *5 (stating that ID EA summary judgment

motions are " in substance an appeal from an admi ni strative determination, not summary

judgment") (internal quotation marks omitted). The district court' s standard of review is a

" modified de novo review" of the administrative proceedings, based on the preponderance of the

evidence. L. K., 20 11 WL 127063 , at *5.

Summary judgment review in IDEA cases "is by no means an invitation to the courts to

substitute their own noti ons of sound educational policy fo r those of the school authorities which

they review. " Bd. of Educ. v. Rowley, 458 U .S. 176, 206 (U.S. 1982). "While federal courts do

not simply rubber stamp administrative decisions, they are expected to give due weight to these

proceedings, mindfu l that the judiciary generally lacks the specialized knowledge and experience

necessary to reso lve persistent and difficult questions of educational policy. " Walczak, 142 F.3d

at 129 (internal quotation marks o mitted). Deference is appropriate where the admini strative

reviews were thorough and careful. Id.; accord. M H. v. New York City Dep 't of Educ., No. 09-

CV-3657 (LAP), 20 10 WL 1904005, at * 17 (S .D.N.Y. May 10, 20 10), a.ff'd, 685 F.3d 2 17 (2d

Cir. 20 12).

The level of deference a court should extend depends on the quality of the SRO 's

opinion, w hile bearing in mind "the statutory context and the admini strative j udges' greater

institutional competence o n matters of educati onal po licy." R. E. v. Ne w York City Dep 't of

Educ., 694 F.3d 167, 189 (2d Cir. 20 12). If a court concludes that " the SRO's determinations are

insufficiently reasoned to merit ... deference, and in particular where the SRO rejects a more

thorough and carefully considered decision of an IHO, it is entirely a ppropriate for the court ...

to consider the IHO's analysis, w hich is also in fo rmed by g reater educational expertise than that

of judges." Id.

In New York, the schoo l district generall y bears the burden of proof at an IHO hearing.4

However, a pare nt "seeking tuition reimbursement for a unilateral parental placement [in a

private schoo l] shall have the burden of persuasion and ... production on the appropriateness of

such placement." .Y. Educ. L. §4404( 1)(c); see MH., 685 F.3d at 255 n.3.

DISCUSSION

I. The Procedural Adequacy of the June 2014 IEP

The Parent alleges that she was "[l] eft w ithout any assistance from the CSE with respect

to school placeme nts." (Pl. Mot. at 19.) T he Parent claims that she had difficulty contacting the

IEP 's recommended school and therefore was denied significant participation in the placement

decision. However, as discussed below, the record makes clear that the DOE provided the Parent

w ith clear guidance on how to contact K.B.'s placement school. As a consequence, the Parent's

contentio n that she was left w itho ut assistance and denied significant pa11icipation is without

merit. 5

4 The Supreme Cowt has held that "[t]he burden of proof in an ad ministrative hearing challenging an IEP is properly placed upon the party seeking relief." S chaffer v. Weast, 546 U.S. 49, 62 (2005). Both the Supreme Court and the Second Circuit have declined to address whether this statutory burden-rea llocation is permissible. S ee id.; M.H., 685 F.3d at 255 n.3. The Second Circuit has held that where plaintiffs seek judicial review of an SRO's determination that an IEP was proper, plaintiffs bear the burden of proof. See M. H., 685 F.3d at 255 n.3 ("Because the State Review Officers in the cases at bar concluded that the IEPs were proper, and the comts are bound to exhibit deference to that decision, the burden of demonstrating that the respective Review Officers erred is properly understood to fall on the plaintiffs.").

5 In a re lated argument, the Parent al leges a proced ura l violation of the IDEA based on DOE's fa ilure to comply with its own internal deadlines. However, this argument is unavail ing. Fai lure to comply with internal deadlines, like any alleged procedural defect, does not by itse lf constitute a den ial of a FAPE, or meaningful participation. See R.B. v. N. Y. C. Dep 't of Educ., No. 15-CY-633 1 (DLC),20 16 U.S. Dist. LEXIS 65938, at *28-30 (S.D.N.Y. May 19, 20 16) (failing to provide prior written notice of placement did not by itself result in prejudice to the parents). As

At the June 2014 CSE meeting in which the Parent participated, the DOE recommended a

school within school District 75 , which specializes in programs for autistic students. (Id. at 28.)

On June 16, 20 14, the DOE sent the Parent a letter specifically placing K.B. in PS Q177 within

District 75. (Id at 648). The letter explained that the Parent could visit the recommended school

site and provided the name, telephone number, and address of an individual that the Parent could

contact for assistance in arranging the visit. (Id) In a June 20, 20 14 letter to DOE, the Parent

indicated she was " unable to reach the placement officer to schedule a visit to the recommended

schoo l" before her upcoming vacation. (Id at 456.) T he letter neither detai led the Parent' s

attempt to reach the school nor requested any help or additi onal information from DOE. (Id.)

Procedurally, under the IDEA, not every error in developing an IEP renders it inadequate.

Grim, 346 F.3 d at 38 1. Where a parent all eges a procedural defect in the development of an IEP ,

that vio lation must significantly impede the student' s right to a F APE, significantly impede the

parent's opportunity to participate in the process, or cause a deprivation of educational benefits.

20 U.S.C. § I 415(f)(3)(E); see R.E., 694 F.3d at 190; WS. v. Rye City Sch. Dist., 454 F. Supp. 2d

134, 138 (S.D.N. Y. 2006). Here, the Parent alleges that the DOE significantly impeded her right

to participate in the IEP with respect to K.B.'s school placement. However, the record supports

the SRO ' s conclusion that the Parent was not denied the opportunity to significantly participate.

(Admin . R. at 26-3 0.)

Parents do not have a ri ght under the IDEA to visit assigned schoo l placement options

either before the recomm endation is finalized or prior to the school year. See J.C. v New York

City Dep 't of Educ., No. 13-CV-3759 (PGG), 20 15 WL 1499389, at *24 n. 14 (S.D.N.Y. Mar. 3 1,

such, the Court agrees with the SRO's well-reasoned finding that given the Parent's extensive participation in developing K.B.'s IEP, and the communications between the Parent and the DOE regarding K.B. 's school placement, any breach of internal DOE protocol did not significantly impede the Parent's participation under IDEA . (Admin. R. at 28.)

2015). Rather, parents have the right to obtain information about a schoo l sufficient to form a

judgment about the placement process. See R. B. v. N. Y C. Dep 't of Educ., 603 F. App'x 36, 39

(2d Cir. 20 15) ("Parents are guaranteed only the opportunity to participate in the decision about a

child 's 'educational placement,' which ' refers to the general educational program - such as the

classes, individualized attention and add itional services a child will receive - rather than the

bricks and mortar of the specific schoo l. "') (quoting 20 U.S.C. § 1414(e)); accord F.B. v New

York City Dep 't of Educ. , No. I 4-CV-3902 (PAE), 20 15 WL 5564446, at* 11-* I 8 (S.D.N.Y.

Sept. 21, 20 15); VS v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-30 1 (E.D.N. Y.

2014); C. U. v. New York City Dep 't of Educ. , No. 23-CV-5209 (DLC), 20 14 WL 2207997, at

*14-*16 (S.D.N.Y. May 27, 20 14).

The record is clear that the Parent was able to significantly participate in the development

ofK.B.'s IEP, and the DOE notified the parent ofK.B. 's school placement. 6 The Parent's

procedural claim, then, depends on a Parent's right under IDEA to visit an assigned schoo l

placement before the recommendation is finali zed. However, the IDEA affords no such ri ght.

See JC., 20 15 WL 1499389, at *24 n.14. Given the SRO's carefully reasoned decision, and the

ample support in the record for the SRO 's conclusion, the Court fi nds that the Parent was not

significantly impeded from participation in K.B.'s IEP and school placement. (Id. 26-30.)

6 The Parent argues that, because the CSE meeting minutes include reference to a District 75 school, the program recommendation must have been made without any discussion of how the program would be implemented within a particu lar school. (Pl. Mot. at 19.) However, the CSE discussed a number of different class sizes and related services suitable for K.B, and the IEP reflects the Parent's in put. (Admin. R. at 623, 624, 626, 639.) The record is clear that the CSE fu lfi lled its duty to " listen to the parents [to ensure an] opportunity to make objections and suggestions." M.M. v. N. Y.C. Dep 'r of Educ., 583 F. Supp. 2d 498, 506 (S.D.N.Y. 2008) (internal quotation marks and original brackets omitted). The IDEA does not grant the right to select the placement school. See F. B., 2015 U.S. Dist. LEX IS 125985, at *41-42 ("The crux of the right to meani ngfully participate in the school selection process is the right ' to evaluate the school assign ment, i.e., the right to acq uire re levant and timely information as to the proposed school. "') (quoting VS. v. N. Y.C. Dep't of Educ., 25 F. Supp. 3d 295, 299 (E.D.N.Y. 2014)).

II. The Substantive Adequacy of the June 2014 IEP

The Parent argues that the DOE fa iled to provide an IEP that complies with the

substantive requirements of the ID EA. (Pl. Mot. 8- 23.) As detailed above, a FAPE need not

"maximize the potential" of disabled students. Rowley, 458 U.S . at 200. Rather, a FAPE but

must be "reasonably calculated to enable the child to receive educational benefits." Id at 206-

07. DOE meets its obli gati ons "if it provides an IEP that is ' like ly to produce progress, not

regression,' and that affords the student with an opportunity greater than mere ' trivial

advancement. "' Cerra, 427 F.3d at 195 (quoti ng Walczak, 142 F.3d at 130).

Substantively, under the " Burlington/Carter test," courts wi ll order a schoo l district to

reimburse parents who reject a proposed IEP and unilaterally enro ll their child in private school

where the school district failed to provide a FAPE ("Prong I" ), the private school placement is

appropriate (" Prong II" ), and the equ ities waiTant reimbursement ("Prong III"). F.L. ex rel. F.L.

v. New York City Dep 't of Educ., No. I l-CV-513 1 (RKE), 20 12 WL 489 1748, at *5 (S.D.N.Y.

Oct. 16, 20 12),· see Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 5 10 U.S. 7 (1993);

Sch. Comm. of Burlington v. Dep 'I of Educ., 47 1 U.S . 359 ( 1985). A court need not consider

Prong II or Prong Ill issues if it finds that the school district offered a FAPE under Prong I. See

TP. v. Mamaroneck Union Free Sch. Dist. , 554 F.3d 247, 254 (2d C ir. 2009) (" Because we fi nd

that S.P.' s 2004- 2005 IEP was neither procedurally flawed nor substantively deficient, we need

not reach the issues whether the add itional services provided by the parents were appropriate, or

whether equitable considerations affect relief.'') (internal citations omi tted); accord G.S. v. New

York City Dep 't of Educ. , No. 15-CY-5 187 (RA), 20 16 U.S. Dist. LEXIS 127473, at *50-5 1

(S.D .N.Y. Sept. 19, 20 16). In addressing Prong I of the Burlington/Carter test, a court must

consider (1) whether the student's IEP was developed according to the IDEA ' s procedural

requ irements, and (2) whether the educatio nal plan set forth in the IEP was reasonably calculated

to confer educational benefits on the student. Walczak, 142 F.3d 119, 129 (citing Rowley, 458

U.S. at 206-07).

In this case, the Court has reviewed each of the Parent's arguments and finds that the

DOE's recommendation was reasonably calculated to provide K.B. wi th a FAPE for the 20 14-

2015 school year.

i. The IEP Provided the Appropriate Level of Direct Teacher Instruction for K.B. to Achieve Some E ducational Progress

The record provides ample support for the SRO ' s conclusion that a 6: 1+ 1 program was

reasonably calculated to provide a FAPE. While the Parent believes that an 8: l + 3 ratio may be

" ideal" for K.B., a 6: 1+1 program would prov ide the appropriate level of instruction for K.B. to

achieve some educational progress. (Id at 18); see A. D. ex rel. E. D., No. 12-CV-2673 , (RA)

2013 WL 1155570, at *8 (S.D.N.Y. Mar. 19, 2013) (" [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 restricti ve options such

as nonpublic programs." ) While witnesses from the Rebecca School argued that K.B. required

2: I teacher intervention, the SRO credited the DO E's w itness, who recommended the 6: 1+ 1

ratio. (Id. at 18.) The SRO noted that K.B. had not made progress throughout her public

education in a 12: 1: l setting with a 1: l paraprofessional, but had made sign ificant progress in a

private schoo l' s 8: 1+3 class without a paraprofessional. (Id at 18- 20.) The SRO reasoned that

the 6: 1+ 1 class was designed fo r students " whose management needs are determined to be highly

intensive, and requiring a high degree of individualized attention and intervention," and, thus, the

6: I+ I s ize was "a reasonable compromi se to achieve a sufficient amount of support in the

classroom .... " (Id.)

Despite the Parent's contrary assertio n, determining an appropriate class size is precisely

the sort of policy judgment on w hich the Second Circuit has counseled courts to defer to the

SRO. Walczak, 142 F.3d at 129; see also Jv! H. v. New York City Dep't ofEduc., No. 10-CV-

1042 (RJH), 20 11 U.S . Dist. LEXIS 17306, at *40 (S.D.N.Y. Feb. 16, 2011). Accordingly, the

Court defers to the SRO ' s finding that a 6: 1+ I class was the appropriate, least restri ctive setting

for K. B to achieve some educational progress.

ii. The SRO Did Not Commit Clear Error in His Review of the Record with Respect to K.B. 's Oral Motor Deficits

The Parent alleges that the IEP inadequately accounted for K.B. ' s oral motor deficits,

thereby denying her a F APE. Yet, the Parent acknowledges that the IEP includes an annual

speech and language goal for K.B. to " improve her oral mo tor skills" through "engagement in a

daily oral motor protocol." (Pl. Mot. at 12; Admin. R . at 630.) Furthermore, the Parent fails to

acknowledge that the IEP also notes the need for an oral motor protocol to train K.B. to chew

consistently and avoid overstuffing. (Id. at 624-630.) It is therefore clear that the IEP 's annual

goals accounted fo r K.B . 's oral motor deficits.

The Parent also argues that the lEP did not contain a sufficiently detailed oral motor

protocol with specific exercises. (Pl. Mot. at 1 I.) However, the IEP recommended two 45-

minute individual speech-language therapy sessions per week and one 45-minute group speech-

language therapy sessio n per week, complete with sho1t-term goals, to address K.B .'s oral motor

defici encies. (Id. at 23 , 623-24.) ln add itio n, the SRO pointed to the IHO hearing testimony of

K .B.'s Rebecca School speech-l anguage pathologist, who noted that " oral motor protocol" was a

term of art in speech-language services, and that any speech-language professional would

understand w hat procedures to implement. (Id.)

Given the support in the record for the determination that the IEP adequately accounted

for K.B . 's oral motor deficits, the Court defers to the SRO. See Grim, 346 F.3d at 382 ("[T]he

sufficiency of goals and strategies in an IEP is precisely the type of issue upon w hich the ID EA

requires deference to the expertise of administrative officers."); see also MH, 685 F.3d at 244

(" [an SRO's] determinations regarding the substantive adequacy of an fEP should be afforded

more weight than determinations concerning whether the IEP was developed according to the

proper procedures."); see also J.L. v. City Sch. Dist. Of City of Nevv York, No. 12-CV- l 5 l 6

(CM), 20 13 WL 625064, at * 13 (S.D.N.Y. Feb. 20, 2013) ("In thi s Circuit, courts are reluctant to

find a denial of a F APE based o n failures in IEPs to identify goals or methods of measuring

progress .") (internal quotation marks omitted).

iii. The DOE Recommended Appropriate Occupational Therapy Services to Address K.B. 's Sensory Integration Disorder and Fine Moto r Deficits

The Parent argues that K.B 's IEP fa iled to either adequately address her sensory needs or

include a suffic ient amount of occupational therapy. (Pl. Mot. at 14.) However, as the SRO

outl ined, the IEP included a robust program of both sensory and occupationa l support.

The SRO found that the protocols outlined in the IEP adequately addressed K.B.'s

sensory diet needs. (Adm in . R. at 22.) T he IEP specified that K.B. needed a five to ten minute

sensory diet implemented every one-and-one-half to two hours. (Id. at 624.) It also included

protocols for vestibular, tactile, and propri oceptive input. (Id. at 625.) As required by the IDEA,

the IEP outlined annual and short-term goals to address K.B . 's sensory needs. For example,

these o bjectives included improving K.B. 's coordination and sensory processing through a daily

sensory diet. (Id. at 629-30.)

The SRO also found that the protoco ls o utlined in the IEP adequately addressed K.B. 's

occupationa l therapy needs. (Id. at 22.) Specifica lly, the IEP recommended o ne 45-m inute

individual OT session and one group 45-minute OT session per week. (Id. at 632-33). In fact,

the SRO found that the IEP recommendations actually increased the duration and frequency of

services re lative to what the Rebecca School had offered. 7 (See id. at 615, 632-33.)

Based on the forgoing support in the record, the SRO affirmed the IHO's decision that

K.B .'s IEP provided an adequate sensory diet and occupational therapy program. As such, the

Court finds that the preponderance of the evidence supports the SR O's determination, and the

Com1 defers to the SRO's well-reasoned decision. See Grim, 346 F.3d at 382.

iv. T he DOE Recommended Appropriate IEP Goals and Obj ectives

An IEP must include a written statement of measurable academic and functional goals for

how the student will progress throughout the year. See 20 U.S.C. § 14 14(d)(l)(A)(i)(II); 34 CFR

§ 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(i ii). Each annual goal must include the eval uative

criteria, procedures, and schedules that wi ll measure the student's progress. 8 NYCRR §

200.(d)(2)(iii)(b); see 20 U.S.C. § I 4 14(d)(l)(A)(i)(III); 34 CFR 300.320(a)(3). Here, the Parent

argues that the June 2014 IEP failed to include sufficiently detailed goals and objectives. (Pl.

Mot. at 16.) However, any deficiencies in the IEP's annual goals were obviated by specific,

short-term objectives. As a consequence, the Court affirms the SRO's determination that the IEP

outlined appropriate goals and objectives.

In this case, the IEP included eleven annual goals to address K.B 's needs in academics,

socio-emotional development, motor skills, speech-language ski lls, and pre-vocational skills.

(Id. at 627- 632). Each of those goals contained evaluative criteria, a method for evaluating

progress, and an evaluation schedule. (Id. at 627-32.) Annual academic goals add ressed K.B.'s

literacy and math ski lls, number sense, and basic math concepts. (Id. at 628.) The

7 The hearing record shows that, at the time of the June 20 14 CSE meeting, the student was receiving one 30-minute session of individual OT and one 30-minute session of group OT at the Rebecca School. (Id. at 632- 33.)

corresponding short-term objectives included turning pages in a book, identifying sight words,

answering "wh" questions, counting with one-to-one correspondence, understanding "more" and

" less," and following a schedule. (Id. at 627-28.) Annual counseling goals focused on socio-

emotional functioning. (Id. at 16.) The corresponding short-term counseling objectives included

recogniz ing negative emotions. (Id. at 627- 28.) The IEP's gross motor skills goal specified nine

corresponding short-term objectives, including improving bi lateral coordination, core strength,

and cl imbing stairs. (Id.) Speech-language goals focused on pragmatic language, oral-motor

ski ll s, functional life skill s, and recepti ve language skills. (Id.) Twelve corresponding short-

term objecti ves included peer interaction, maintaining eye contact, daily oral -motor protocol,

fo llowing o ne and two-step d irections, and answering "wh" questions about the classroom and

community. (Id. at 630-31.)

The Paren t also contends that the June 20 14 IEP did not contain appropriate fine motor

goals. (Pl. Mot. at 14.) However, the IEP included goals related to improving daily living skills,

visual scanning and processing, and coordination and sensory processing. (Id. at 614, 619, 620.)

The IEP also contai ned fourteen short-term obj ectives (e.g., toileting and dressing, closing

buttons, snaps and zippers, and tying shoes) that addressed K.B.'s fine motor needs. (Id. at 6 14,

6 19, 620.) While the IEP does not include a fine motor goal fo r writing, an IEP does not need to

identi fy annual goals for every deficit in order to provide a FAPE. 8 See R.B. v. New York City

Dep't of Educ., No. 12-CV-3763(AJN), 2013 WL 5438605, at *14 (S .D.N .Y. Sept. 27, 20 13),

affd 589 Fed. App' x 572 (2d Cir. Oct. 29, 2014); J.L., 2013 W L 625064, at* 13. Here, the SRO

found that, as a whole, the IEP was reasonab ly calculated to enable K.B. to receive educational

benefits. (Id. at 17); see Rowley, 458 U.S. at 206- 07; Karl v. Bd. Of Educ., 736 F.2d 873, 877

8 The IEP did, however, provide for hand over hand support for writing. (Id at 625.)

(2d Cir. 1984) (finding that educational benefits flowin g from an IEP must be determined from

the combination of offerings). Here, the combination of annual and short-term goals in the IEP

were adequate to address K.B.'s fine motor deficits.

The Parent fai ls to meet her burden to show that the IEP 's annual goals were so overly

broad as to deny K.B. access to a FAPE. When supplemented by short-term objectives outlining

a student's path to progress, even overly broad annual goals do not by themselves constitute

denial ofa FAPE. See A.D. v. New York City Dep 't of Educ., No. 12-CV-2673 (RA), 20 13 WL

11 55570, at *10-* l I (S.D.N.Y. Mar. 19, 2013); JL. , 20 13 WL 625064, at *13. Here, the SRO

found that the fEP's detai led short-term objectives provided the necessary clarity to supplement

annual progress goals. Due to the ample support in the record fo r the SRO's carefully reasoned

conclusion, the Court finds that the IEP prov ided adequate goals and objectives and, therefore,

did not deny K.B. a FAPE. 9 See P. K. v. Ne'rv York City Dep 't of Educ., 819 F. Supp. 2d 90, 109

(E.D . . Y. 20 11 ) (noting the reluctance to find denial of FAPE based on an IEP's failure to

clearly identify annual goals or methods of measuring progress), ajfd, 526 Fed. App'x 135 (2d

Cir. May 21 , 20 13).

v. The Parent's Arguments Fail on Prong I of the Burlington/Carter Test

As noted above, under the Burlington/Carter test, courts wi ll order a school district to

reimburse parents who unilaterally enroll their child in private school where the school district

9 The Parent also argues that some of the goals and short-term objectives were not appropriate given K.B.'s then-

current func tioning. For example, the Parent argues that because K.B. had not yet mastered "who" and "what" questions, it was unreasonable for the IEP to list answering abstract "whe re" and "why" questions on the IEP (Adm in. R. at 6 17.) However, the Rebecca School progress repo11 indicated that the student could answer "simple ' wh' (' who' and ' what') questions wi th visua l support and restating the question" (id. at 6 13), which the SRO found justified the inclusion of the more abstract "wh" questions as sho11-term objectives. (Id. at 17 .) Regard less, the SRO properly noted that "to the extent some [goals] could be deemed more ambitious, their inclusion does not result in a finding that the entire goal was inappropriate to meet the student's needs, particularly given the management strategies set fort h in the June 20 14 IEP that would be available to help the student succeed." (Id.); see A.M. v. New York City Dep 't of Educ., 964 F. Supp. 2d 270, 285 (S.D.N.Y. 2013). Finding amp le support in the record, the Court defers to the SRO with respect to the substantive appropriateness of short-term goals.

fa iled to provide a F APE ("Prong I"), the private school placement is appropriate ("Prong II"),

and the equities warrant reimbursement ("Prong III"). Florence Cnty. Sch. Dist. Four v. Carter

ex rel. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 47 1 U. S. 359

( 1985). Here, the Court finds ample support in the record for the SRO ' s decis ion that the Parent

fai led to meet her burden, and that the June 2014 IEP was reasonably calculated to provide K.B.

a FAPE for the 2014-2015 school year. Having found each of the Parent' s arguments unavailing

under Prong I, it is " unnecessary to reach the second and third prongs of the Burlington/Carter

test." G.S. , 2016 U.S. Di st. LEX IS 127473, at *50-5 1; accordTP. v. Mamaroneck Union Free

Sch. Dist., 554 F.3d 247, 254 (2d Ci r. 2009). The Court finds that June 2014 IEP was reasonably

calculated to provide K. B. with a FAPE. Therefore, the Parent is not entitled to tuition

reimbursement.

CONCLUSION

For the foregoing reasons, the Parent' s motion for summary judgment (Doc. No. 24) is

denied and DOE's cross-motion for summary judgment (Doc. No. 23) is granted. The Clerk of

Court is respectfully di rected to enter judgment accordingly and close the case.

SO ORDERED.

Dated: Brooklyn, New York fi,f.~ 17 ' 2017 s/Roslynn R. Mauskopf ROSL YNN R. MAUSKOPF United States District Judge

J.B. et al. v. New York City Department of Education