UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------x T.C. on behalf of I.M.,
Plaintiff, MEMORANDUM & ORDER No. 22-CV-7122(JS)(JMW) -against-
WILLIAM FLOYD UNION FREE SCHOOL DISTRICT,
Defendant. ----------------------------------x Appearances:
For Plaintiff: Christina D. Thivierge, Esq. Thivierge & Rothberg, P.C. 22 High Street Huntington, New York 11743
For Defendant: Lakshmi S. Mergeche, Esq. Shaw, Perelson, May & Lambert, LLP 21 Van Wagner Road Poughkeepsie, New York 12603
SEYBERT, District Judge:
By this action, brought pursuant to, inter alia, the
Individuals with Disabilities Education Improvement Act (“IDEA”),
20 U.S.C. § 1400 et seq., Plaintiff T.C., on behalf of I.M.
(hereafter, “Plaintiff” or “Parent”), seeks review and reversal of
the August 26, 2022 decision of the State Review Officer (“SRO”)
(hereafter, the “SRO Decision”), which Decision reversed the June
15, 2022 decision and order of the Impartial Hearing Officer
(“IHO”) (hereafter, the “IHO Decision”). (See Compl., ECF No. 1.)
Among other things, Plaintiff alleges the IHO correctly found
Page 1 of 80
Plaintiff was entitled to tuition funding because Defendant
William Floyd Union Free School District (“Defendant” of “School
District”) failed to offer I.M. a free appropriate public education
(“FAPE”) through an individualized education program (“IEP”)
developed by the School District’s Committee on Special Education
(“CSE”), and the SRO erred in reversing the IHO Decision. (See
id. ¶3.) Now, via the instant summary judgment Motion (hereafter,
the “Motion”) (see ECF No. 18), Plaintiff seeks “modified de novo
review[] and reversal of the SRO’s decision and an award of full
tuition and transportation reimbursement relief and costs and
expenses for I.M.’s program [at the Vincent Smith School (“VSS”)]
for the 2021-2022 school year.” (Thivierge First Decl., ECF No.
18-1, ¶5; see also Support Memo, ECF No. 18-2; Thivierge Second
Decl., ECF No. 18-6; Reply, ECF No. 18-7.) The School District
opposes the Motion. (See Opp’n, ECF No. 18-5; Mergeche First
Decl., ECF No. 18-3; Mergeche Second Decl., ECF No. 18-9; Sur-
Reply, ECF No. 18-10.) For the reasons that follow, the Motion is
DENIED.
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BACKGROUND
I. Relevant Factual Background 1
The majority of the underlying facts leading to this
action are not in dispute. Rather, as more fully discussed, below,
the core disputed fact is whether the School District provided
I.M. a FAPE and, if not, whether the School District is liable to
reimburse the Parent for placing I.M. in a private program at VSS. 2
1 Unless otherwise stated, the factual background is derived from the parties’ Local Civil Rule 56.1 Statements. Defendant’s Rule 56.1 Statement (see ECF No. 18-4) shall be cited as “56.1 Stmt.” Plaintiffs’ Reponse to Defendant’s Rule 56.1 Statement (see ECF No. 18-8) shall be cited as “56.1 Resp.” Herein, internal quotation marks and citations in the 56.1 Statement and Response have been omitted. A standalone citation to the Rule 56.1 Statement or Response denotes the Court has determined the underlying factual allegation is undisputed. Further, citation to a party’s Rule 56.1 Statement or Response incorporates by reference the party’s citation(s), if any. However, in its discretion, the Court may cite directly to the underlying exhibit(s). The underlying Administrative Record is found in the Case Docket at ECF No. 17. Plaintiff’s exhibits are identified as “Ex. P-[#]”; Defendant’s exhibits are identified as “Ex. D-[#]”. The IHO Decision is Ex. B to the Complaint. (See ECF No. 1-4.) The SRO Decision is Ex. A to the Complaint. (See ECF No. 1-3.) When citing either the IHO or SRO Decision, the Court will use the internal page numbers of those Decisions. Citations to “Tr.” refer to the hearing transcript of the IHO Hearing. (See ECF No. 17-4; see also infra at 11-12 (defining “IHO Hearing”).)
2 “VSS is a small, independent private school catering to children with learning disorders, dyslexia, dysgraphia, and dyscalculia and provides services in small classes with differentiated instruction.” (IHO Decision at 24 (citation omitted); see also supra note 7.) Page 3 of 80
A. Generally
I.M., the student at issue (hereafter, “I.M.” or
“Student”), was born in January 2010 and is currently 15-years-old.
She resides with her mother, Plaintiff, in Suffolk County, New
York. The Student has been diagnosed with (1) Specific Learning
Disorder, With Impairment in Reading: word reading accuracy,
reading rate or fluency, reading comprehension; specific learning
disorder, with impairment in written expression; spelling
accuracy, grammar and punctuation accuracy, clarity or
organization of written expression; and (2) Attention-
Deficit/Hyperactivity Disorder, Combined Presentation. The
Student attended Kindergarten and First Grade at William Floyd
Elementary School, a School District public school, where she
received non-mandated Resource Room 3 aid as a general education
3 “Resource Room” is nomenclature for the N.Y.S. Education Department’s: special education program for a student with a disability registered in either a special class or general education class who is in need of specialized supplementary instruction in an individual or small group setting for a portion of the school day. Resource room programs are for the purpose of supplementing the general education or special education classroom instruction of students with disabilities who are in need of such supplemental programs. This means that instruction is not provided in place of the student’s regular academic instruction. N.Y.S. Educ. Dep’t, Special Education: Continuum of Special Education Services for School-Age Students with Disabilities, Page 4 of 80
intervention, prior to being referred to special education. For
Second Grade, the Student was classified as a student with a
Learning Disability; therefore, she was placed in the Integrated
Co-Teaching Class at John S. Hobart Elementary, also a School
District public school. For Third Grade, I.M. was placed in a
15:1 Special Class at William Floyd Elementary. It was recommended
the Student continue in the 15:1 Class at John S. Hobart Elementary
for Fourth Grade. Defendant contends “the Parent parentally placed
[I.M.]” at VSS (56.1 Stmt. ¶10), while Plaintiff asserts she
“unilaterally plac[ed] I.M. at VSS due to the [School] District’s
failure to provide I.M. with a FAPE.” (56.1 Resp. ¶6.)
Nonetheless, the Student remained at VSS for Fifth Grade. In April
2018, the Student was privately evaluated by Amanda Addolorato
Macdonald, Psy.D. In December 2019, the Student was privately
re-evaluated by Dr. David Sukiennik, Psy.D.
B. The 2021 Re-Evaluation
Due for re-evaluation, in Spring 2021, the School
District scheduled the Student for the following assessments: a
psycho-educational evaluation; an independent reading evaluation;
Resource Room Program, https://www.nysed.gov/special- education/continuum-special-education-services-school-age- students- disabilities#:~:text=Resource%20room%20program%20is%20a%20specia l%20education,for%20a%20portion%20of%20the%20school%20day.&text= This%20means%20that%20instruction%20is%20not%20provided,place%20 of%20the%20student's%20regular%20academic%20instruction, (last visited Feb. 27, 2025). Page 5 of 80
classroom observation and occupational therapy (“OT”). Thus, on
January 12, 2021 (i.e.,
during the 2020-2021 school year), on
behalf of the School District, Elaine Micali (“Micali”) conducted
an Independent Reading Evaluation of I.M. According to the School
District, in her assessment of I.M., Micali noted, in relevant
part, that in comparison to with I.M.’s prior Comprehensive Test
of Phonological Processing scores, I.M. made little or no progress
in phonological awareness, phonological memory or rapid symbolic
naming since I.M.’s initial evaluation in April 2018, prior to her
placement in VSS. Plaintiff disputes the characterization of
Macali’s assessment results, asserting: “Qualitatively, Dr.
Micali’s report demonstrates that in Phonological Memory, I.M.
went from the ‘Very Poor’ range in 2018 to the ‘Below Average’
range in 2021. In Phonological Processing, I.M. went from
functioning in the ‘Poor’ range in 2018 to the ‘Average’ range in
2021.” (56.1 Resp. ¶8.) Further, on February 5, 2021, the School
District conducted a Confidential Psycho-Educational Report as a
part of its triennial assessment of I.M., which included having
Joshua David Zelin, a School District school psychologist,
administer 10 subtests from the Wechsler Intelligence Scale for
Children-Fifth Edition.
Thereafter, on April 19, 2021, the CSE convened to review
the results of the Student’s triennial evaluation (hereafter, the
“Re-Evaluation”); the Re-Evaluation was discussed at length. The
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April 2021 CSE recommended the Student be placed in a Special Class
(15:1; once daily for 4 hours and 12 minutes) and, for the
remainder of the 2020-2021 school year, receive: (1) OT (small
group 5:1; once weekly for 30 minutes); (2) OT (individual; once
weekly for 30 minutes); (3) Specialized Reading (small group 5:1;
five times weekly for 40 minutes); and (4) Specialized Reading
(individual; once daily for one hour). The April 2021 CSE further
recommended summer services.
C. The May 2021 CSE
On May 18, 2021, in preparation for the upcoming
2021-2022 school year, a CSE convened for an annual review
regarding I.M. The School District maintains the May 2021 CSE
relied upon the recently completed Re-Evaluation and updated
(citing Tr. 60-61).) Plaintiff disputes that representation,
claiming the School “District failed to meaningfully rely upon or
consider the information provided by VSS by making recommendations
that were a wild departure from that recommended by VSS.” (56.2
Resp. ¶10 (citing IHO Hr’g Tr. 362-63, 476, 506, and May 18 IEP 4).)
The May 2021 CSE recommended the Student: be placed in
a Special Class (15:1+1; once daily for 40 minutes for English
language arts (“ELA”), math, science and social studies); and,
4 The May 2021 IEP is Defendant’s Exhibit D-6. (See ECF No. 17-6, at ECF pp.100-29.) Page 7 of 80
receive: OT (small group 5:1; once weekly for 30 minutes); OT
(individual; once weekly for 30 minutes); Specialized Reading
(small group 5:1; five times weekly for 40 minutes); Specialized
Reading (individual; once daily for one hour); and, Psychological
Counseling Services (individual; twice monthly for 30 minutes).
(56.2 Stmt. ¶ 20.) According to Plaintiff, the CSE also
recommended I.M. be shadowed by a 1:1 aide, which she believed was
too restrictive. (See 56.2 Resp. ¶11 (citing Ex. D-6 at 23).)
According to the School District: “[I]n recognition of the Parent’s
concerns regarding the Student’s transition back into the [School]
District[,] the CSE recommended the support of a teachers [sic]
assistant”. (56.2 Stmt. ¶23); Parent contends this was not
appropriate for I.M. (See 56.2 Resp. ¶13; see also id. at ¶14.)
The CSE also recommended summer services for I.M.
The School District maintains “the May 2021 CSE deviated
from standard practice by developing reading goals that were
reflective of Wilson methodology” to align with I.M.’s
then-current performance levels at VSS, which utilized
Wilson-based reading instruction. (56.2 Stmt. ¶23.)
Additionally, the CSE advised the Parent that the specialized
reading services would be fulfilled by the classroom teacher and
through a contract with Da Vinci Collaborative (“Da Vinci”), an
outside organization that provided various academic support to the
School District. (See 56.2 Stmt. ¶21; see also IHO Decision at 13
Page 8 of 80
(describing Da Vinci as “a private service provider of specialized
reading instruction that contracts with the [School District] to
deliver instruction to [School] District students”).) While
Plaintiff admits the School District so advised her, she disputes
the School District “was accurate in claiming it could
appropriately provide specialized reading services” via Da Vinci
since Da Vinci, as well as the classroom teacher, lacked the
required certification to do so. (56.2 Resp. ¶12.) Further, in
making its recommendation, the May 2021 CSE permitted the VSS team
to share updates regarding the Student’s then-present levels of
performance, which were reviewed by the CSE chairperson. (56.2
Stmt. ¶22.) The parties dispute whether the CSE’s determinations
regarding I.M. were for the least restrictive environment and were
predetermined. (Compare 56.2 Stmt. ¶22, with 56.2 Resp. ¶13; see
also 56.2 Resp. ¶14.)
D. The September 2021 CSE
Precipitating the September 2021 CSE, “[o]n August 16,
2021[,] the Parent informed the [School] District that she
disagreed with the CSE’s recommendation and that she was
unilaterally placing her daughter at the VSS for the 2021-2022
school year and seeking tuition costs and expenses of that program
and transportation for the District’s alleged procedural and
substantive denial of a [FAPE].” (IHO Decision at 2; see also
infra at note 6.) In response to the Parent’s August 16, 2021
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letter, the CSE reconvened on September 14, 2021. Prior to the
September 2021 meeting, Parent had visited the School District’s
recommended programs, which visit was facilitated by Michele Gode,
principal of Paca Middle School. After its September 14 meeting,
the CSE recommended the Student: be placed in a Special Class
(15:1+1; once daily for 40 minutes for ELA, math, science and
social studies); and, receive: OT (small group 5:1; once weekly
for 30 minutes); OT (individual; once weekly for 30 minutes);
Specialized Reading (small group 5:1; five times weekly for 40
minutes); Specialized Reading (individual; once daily for one
hour); and, Psychological Counseling Services (individual; twice
monthly for 30 minutes). (See 56.2 Stmt. ¶26.) In addition,
according to Plaintiff, the School District also recommended I.M.
be shadowed by a 1:1 aide. (See 56.2 Resp. ¶17.)
E. The January 2022 CSE
Then, in response to the Parent’s December 3, 2021
letter, 5 the CSE again reconvened in January 2022. (See 56.2 Stmt.
¶27.) As a result, the CSE made the following recommendations:
the Student be placed in a Special Class (15:1+1; once daily for
40 minutes for ELA, math, science and social studies); and, the
5 “On December 3, 2021, the Parent gave further notice to the [School] District that she would keep [I.M.] enrolled in the VSS for the 2021-2022 school year.” (IHO Decision at 2; see also infra at note 6.)
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Student receive: OT (small group 5:1; once weekly for 30 minutes);
OT (individual; once weekly for 30 minutes); Specialized Reading
(small group 5:1; five times weekly for 40 minutes) Specialized
Reading (individual; once daily for one hour); and, Psychological
Counseling Services (individual; twice monthly for 30 minutes).
(See 56.2 Stmt. ¶28.) Again, Plaintiff contends the School
District further recommended I.M. be shadowed by a 1:1 aide. (See
56.2 Resp. ¶19.)
II. Relevant Procedural Background
A. At the Agency Level 6
On December 6, 2021 and pursuant to the IDEA, the Parent
commenced a due process complaint against the School District
(hereafter, the “IDEA Complaint”). Parent sought a finding that
the School District failed to offer I.M. a FAPE for the 2021-2022
school year and an award of tuition reimbursement for Parent’s
unilateral placement of I.M. at VSS for the 2021-2022 school year.
A due process hearing was conducted over several non-consecutive
days, commencing in March 2022 and concluding in April 2022
(hereafter, the “IHO Hearing”). Ultimately, the IHO found the
School District’s IEP failed to offer the Student a FAPE in the
6 Neither party provided the relevant state-level procedural history which precipitated this case. For the reader’s convenience and to provide the necessary context for its decision herein, the Court has relied upon the IHO Decision and the SRO Decision to glean those relevant facts. None of the facts recited in this subsection can reasonably be found to be in material dispute. Page 11 of 80
least restrictive environment. Therefore, among other things, in
his June 15, 2022 Decision, the IHO ordered the Parent was entitled
to an award of tuition reimbursement and related expenses for
Parent’s unilateral placement of I.M. at VSS for the 2021-2022
school year.
The School District appealed the IHO Decision, seeking
its reversal. Plaintiff cross-appealed; among other things, she
challenged the IHO’s findings as to the School District’s
recommended class size and 1:1 aide for I.M., as well as the IHO’s
alleged failure to address her claims that the School District
predetermined its recommendations and denied her meaningful
participation in the development of I.M.’s IEP. Extensively citing
to the record below, as well as to relevant case law, the SRO
concluded the evidence in the hearing record supported a finding
the School District offered Student a FAPE for the 2021-2022 school
year; therefore, it was not necessary to reach the issue whether
the VSS was an appropriate unilateral placement for Student or
whether equitable considerations supported an award of tuition
reimbursement. The SRO sustained the School District’s appeal,
dismissed Parent’s cross-appeal, and reversed the IHO Decision to
the extent it found the School District failed to offer Student a
FAPE for the 2021-2022 school year and ordered the School District
fund Student’s tuition costs at VSS, - i.e.,
reimburse the Parent.
Page 12 of 80
B. In this Court
Thereafter, Plaintiff commenced this action on November
22, 2022. (See Compl., ECF No. 1.) She seeks the reversal of the
SRO Decision, which reversed the favorable IHO Decision directing
the School District to reimburse her for the cost of enrolling
I.M. at VSS, as well as other related expenses. (See id. ¶¶ 2-4,
14.) The School District denied Plaintiff’s allegations, and, as
one of several affirmative defenses, contends the SRO Decision was
well-founded in both fact and law and, therefore, is entitled to
deference from this Court. (See generally Ans.; see id. at ¶142
(Sixth Affirmative Defense).) Because this is an action seeking
review of the Administrative Record of the N.Y.S. Department of
Education Office of State Review, Plaintiff has sought summary
judgment. (See, e.g., Jan. 18, 2023 Letter, ECF No. 11.) With
the relevant Administrative Record and fully briefed Motion now
before it, the Court proceeds with its deferential review.
DISCUSSION
I. The Applicable Standard and the Decisions at Issue
A. Summary Judgment in the Context of an IDEA Challenge
The standard for deciding a Rule 56 summary judgment
motion is well-established. See, e.g., Lavender v. Verizon N.Y.
Inc., No 17-CV-6687, 2023 WL 1863245, at *8 (E.D.N.Y. Feb. 9,
2023); see also Butler v. County of Suffolk, No. 11-CV-2602, 2023
WL 5096218, at *18-20 (E.D.N.Y. Aug. 8, 2023) (similarly
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articulating summary judgment standard). Yet, in the context of
the IDEA, the Second Circuit has further explained:
Generally, either “party aggrieved” by the findings of the SRO “shall have the right to bring a civil action” in either state or federal court. 20 U.S.C. § 1415(i)(2)(A). 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. Id. at § 1415(i)(2)(c). The court typically considers the propriety of the IEP on the parties’ cross motions for summary judgment.
However,
a motion for summary judgment in an IDEA case often triggers more than an inquiry into possible disputed issues of fact. Rather, the motion serves as a pragmatic procedural mechanism for reviewing a state’s compliance with the procedures set forth in [the] IDEA [in developing the specific IEP at issue] and determining whether the challenged IEP is reasonably calculated to enable the child to receive educational benefits. Lillbask ex rel. Mauclaire v. State of Conn. Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005) (internal quotation marks omitted). “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].” Id. (ellipsis, brackets, and citation omitted). “[B]asing its decision on the preponderance of the evidence, [the court is required to] grant such relief as the court determines is appropriate.” § 1415(i)(2)(C)(iii).
M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 225–26 (2d Cir. 2012). Page 14 of 80
Fellow jurist of this District, Honorable Eric Komitee,
provides further relevant elucidation:
“The review is substantive and considers more than whether a material fact is disputed.” M.Z. v. N.Y.C. Dep’t of Educ., No. 12-CV-4111, 2013 WL 1314992, at *1 (S.D.N.Y. Mar. 21, 2013). “[B]asing its decision on the preponderance of the evidence, [the court] shall grant such relief as [it] determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). “[T]he standard for reviewing administrative determinations requires a more critical appraisal of the agency determination than clear-error review but nevertheless falls well short of complete de novo review.” M.H., 685 F.3d at 244. In deciding an IDEA case, a court will “generally defer to the final decision of the state authorities.” M.H., 685 F.3d at 241. Still, “in policing the states’ adjudication of IDEA matters,” a court must “determin[e] the weight due any particular administrative finding.” Id. at 244. Because of the specialized educational considerations involved, “[d]eterminations 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.” Id. District courts also apply a deferential standard of review to the IHO’s credibility determinations. See id. at 240.
V.A. v. City of N.Y., No. 20-CV-0981, 2022 WL 1469394, at *4
(E.D.N.Y. May 10, 2022). Further:
[t]he deference owed depends on both the quality of the opinion and the court’s institutional competence. [M.H., 685 F.3d at 244.] Under our deferential review, “[w]here the IHO and SRO disagree,” we “defer to the reasoned conclusions of the SRO as the final state administrative determination.” Id. at 246. However, where the SRO’s determinations
Page 15 of 80
are insufficiently reasoned to merit deference, the courts should defer to the IHO’s analysis. Id. at 246, 252. Additionally, the courts should defer to the IHO’s analysis when considering an issue not reached by the SRO. Id. at 252.
C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 77 (2d
Cir. 2014) (omitting internal footnote). And, “[a] district court
must grant particular deference to the administrative proceedings
when, as in this case, its decision is based solely on the same
evidence in the administrative record.” M.H. ex rel. A.H. v.
Monroe-Woodbury Cent. Sch. Dist., 250 F. App’x 428429 (2d Cir.
Oct. 12, 2007). However, a district court’s deference “does not
apply to questions of law.” V.A. v. City of N.Y., 2022 WL 1469394,
at *4 (citing B.K. v. N.Y.C. Dep’t of Educ., 12 F. Supp. 3d 343,
356 (E.D.N.Y. 2014) (the deferential standard “is not implicated
with respect to issues of law, such as the proper interpretation
of the federal statute and its requirements”)). Finally, “[t]he
party seeking reversal of an SRO’s decision bears the burden of
demonstrating that the decision is not entitled to deference” F.L.
v. Bd. of Educ. of Great Neck U.F.S.D., 274 F. Supp. 3d 94, 112
(E.D.N.Y. 2017) (citing M.H., 685 F.3d at 224-25); aff’d, 735 F.
App’x 38 (2d Cir. Aug. 24, 2018).
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B. The IHO Decision 7
The CSE’s May 2021 IEP recommendation is the plan at
issue (hereafter, the “May 2021 IEP” or “Subject IEP”). In making
his decision as to the Subject IEP, the IHO applied the
well-established three-pronged Burlington/Carter test, first
articulated by the Supreme Court in School Committee of the Town
of Burlington, Massachusetts v. Department of Education of the
Commonwealth of Massachusetts, 471 U.S. 359 (1985), see also
Florence County School District v. Carter, 510 U.S. 7 (1993), to
determine whether Plaintiff was entitled to the tuition
reimbursement she sought for the School District’s alleged failure
to provide I.M. with a FAPE. (See IHO Decision at 18-19
(articulating applicable Burlington test; see also id. at 19-24
(analyzing Prong I), at 24-25 (analyzing Prong II), and at 25
(analyzing Prong III)); see also C.F., 746 F.3d 68 (instructing
claims for tuition reimbursement under the IDEA are governed by
the Burlington/Carter Test “which looks to (1) whether the school
district’s proposed [IEP] will provide the child with a [FAPE];
7 The IHO identified the exhibits (by numbers) considered and the witnesses who testified over the four non-consecutive days’ of hearing on Plaintiff’s IDEA Complaint. (See IHO Decision at 13-14; see also id. at 28 (providing a description of the admitted exhibits).) The IHO also observed that Plaintiff, I.M.’s mother, participated in all the CSE meetings regarding I.M. (See id. at 14.) Page 17 of 80
(2) whether the parents’ private placement is appropriate to the
child’s needs; and (3) a consideration of the equities”).
As for Prong I (appropriateness of IEP offered): The
IHO examined: I.M.’s reading needs, which “is the Student’s most
challenging area of deficit” (IHO Decision at 20); the CSE’s
recommended placement of the Student in a 15:1+1 Special Class,
together with the assistance of an aide (see id. at 20-21); the
composition of the Special Class (see id. at 21); the IEP including
adaptive physical education (“APE”) for the Student (see id. at
21-22); the methodology to be used in delivering I.M.’s reading
instruction (see id. at 22); the goals set for I.M. in the IEP
(see id. at 22-23); the IEP providing for I.M. to receive OT in
both a group setting and on an individual basis (see id. at 23);
the CSE’s recommendation I.M. receive some counseling services
(see id. at 23-24); and, the CSE’s declining to initiate a
functional behavioral assessment (“FBA”) or develop a behavioral
intervention plan (“BIP”) (see id. at 24). The IHO concluded:
Although the CSE’s recommended IEP is appropriate in some respects, the deficiencies in providing specialized reading support during the school day, the insufficient class profile knowledge base for the CSE’s recommendation, and the inappropriate placement of the Student in Adaptive Physical Education constitute a denial of a [FAPE].
(Id. at 24.)
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As for Prong II (appropriateness of private placement):
The IHO found “the VSS program is, at least, minimally appropriate”
and I.M. had made some progress since her placement at VSS. (Id.)
He underscored the very small sized classes the Student attended
and that she “d[id] not display significant behaviors that
interfere with her learning.” (Id. at 25.) Further, he was
unconvinced the use of two different reading methods, employed by
VSS, had any adverse effect since “[t]he Woodcock Reading Master
Test-3rd Edition [] used to measure progress show[ed] that the
Student’s scores from September 2019 to May 2021 have improved
with the Student making progress each year.” (Id. (citations
omitted).) In addition: VSS’s science, social studies, and math
classes appeared to be addressing the Student’s academic needs;
I.M. participated in gym, art, and clubs at VSS; and, I.M. received
OT at VSS. (See id.) Furthermore, the VSS teaching staff
collaborated regarding I.M.’s needs and progress. (See id.) Thus,
placement as VSS was found to by “sufficient under the current
standards for unilateral placements.” (Id.)
As for Prong III (equitable considerations): Observing
Plaintiff fully participated in the CSE process and development of
I.M.’s Subject IEP, the IHO also stated he found Plaintiff
“credible when she indicated that, although having signed a
contract with VSS earlier, she would have considered a public-
school placement if the CSE had made a recommendation she would
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accept.” (Id. at 26.) Apparently based upon said finding, the
IHO summarily concluded the equities did not bar Plaintiff’s
claims. (See id.)
Hence, the IHO ordered, inter alia: the Student’s 2021-
2022 IEP did not offer her a FAPE; the Parent’s unilateral
placement of Student at VSS for the 2021-2022 school year was
appropriate; and, the Parent was entitled to an award of tuition
and related expenses for said placement. The IHO’s determination
was limited to the 2021-2022 school year. (See id.)
C. The SRO Decision
After providing I.M.’s general educational background
and a summary of the IHO Decision, the SRO proceeded to identify
the parties’ respective bases for appealing. The School District
asserted the IHO erred, inter alia: in finding deficiencies in the
CSEs’ recommendations regarding specialized reading support, as
being inconsistent with the record evidence; in concluding there
was insufficient information regarding the class profile; in
considering Parent’s argument regarding the APE recommendation,
since it was outside the scope of her IDEA Complaint; in
considering Parent’s argument regarding the School District
conducting an FBA and BIP, as being outside the scope of her IDEA
Complaint; and, in finding the CSEs did not properly consider
Parent’s concerns or the program recommendations. (SRO Decision
at 9-10.) Unsurprisingly, Parent agreed with the IHO’s
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determination the School District failed to provide Student with
a FAPE since the School District: “fail[ed] to provide an
appropriate reading program”; “inappropriately recommended that
the [S]tudent be placed in [APE]”; and, “failed to recommend
placement for the [S]tudent in a properly composed class with peers
of similar needs.” (Id. at 10.) Nonetheless, Parent appealed the
IHO’s decisions regarding: Student’s placement in a 15:1+1 special
class with the support of a 1:1 aide; the Parent’s contentions
that the School District’s recommendations were predetermined and
it denied her meaningful participation in the CSEs; the School
District’s not having to consider conducting an FBA or developing
a BIP; the appropriateness of Student’s goals; and, the
appropriateness of the School District’s OT recommendations. (See
id. at 10-11.)
As an initial matter, the SRO determined, because Parent
did not raise the issue of APE in her IDEA Complaint, and based
upon the record evidence, the School District had not “opened the
door” to same; therefore, this argument was outside the scope of
what could be properly considered by the IHO. (Id. at 13-14
(citing, inter alia, B.P. v. N.Y.C. Dep’t of Educ., 841 F. Supp.
2d 605, 611 (E.D.N.Y. 2012) (“The scope of the inquiry of the IHO,
and therefore the SRO . . . , is limited to matters either raised
in the . . . impartial hearing request or agreed to by the [opposing
Page 21 of 80
party].”)).) “Therefore, the IHO’s findings related to adapted
physical education [were] reversed.” (Id. at 14.)
The SRO next turned to Parent’s claims regarding
predetermination and parental participation. As is evident from
the SRO Decision, the SRO conducted a thorough review of the record
below, including reviewing the IHO Hearing transcripts. (See id.
at 15-17.) Indeed, he cited to ample evidence considered by the
CSE in formulating its recommendations. Moreover, the evidence
established both Parent and VSS personal participated in said CSE
meetings. (See id.; see also id. at 17 (“[T]he evidence in the
hearing record demonstrates that both the [P]arent and staff of
[VSS] were given the opportunity to participate in the development
of the [S]tudent’s educational program for the 2021-2022 school
year.”).) Based upon relevant case law, the SRO concluded: “The
[P]arent’s preference for the [S]tudent to remain at [VSS] is
understandable; however, the [School D]istrict was not required to
consider placement of the [S]tudent in a nonpublic school once it
determined that a less restrictive placement was appropriate to
address the [S]tudent’s needs.” (Id. (citations omitted).) Hence,
Parent’s predetermination and participation claims were
unsustainable upon the IHO Hearing record. (See id.)
Turning to the substantive claims, the SRO engaged in an
expansive review of the record below in finding the School District
had provided Student a FAPE for the 2021-2022 school year. (See
Page 22 of 80
SRO Decision at 17-37.) Observing “[t]he May 2021 IEP included
reports of specific formal test results consistent with the
[listed] evaluations [], as well as evaluation results obtained
via previous evaluations conducted . . .”, the SRO clarified,
“[t]he parties do not dispute the adequacy of the evaluative
2021 IEP present levels of performance”; however, he explained
that a description of such information was “necessary to determine
whether the May 2021 CSE’s recommendation of a 15:1+1 special class
with 1:1 aide support in conjunction with specialized reading
instruction, related services[,] and other supports provided the
[S]tudent with an appropriate education program for the 2021-22
school year.” (Id. at 18.) He then proceeded to examine, in
detail, six subsections that comprised the May 2021 IEP: the
Student’s (1) then-present levels of performance and her specific
needs (see id. at 18-22); (2) annual goals and need for OT (see
id. at 22-25); (3) alleged interfering behaviors (see id. at 25-
27); (4) proposed placement in a 15:1+1 special class with a 1:1
support aide (see id. at 27-30); (5) recommended specialized
reading instructions (see id. at 30-34); and (6) proposed placement
in a 15:1+1 special class in the absence of sufficient knowledge
of the class profile (see id. at 34-37).
Page 23 of 80
1. Present Levels of Performance and Student Needs
The SRO detailed the information used in developing the
Student’s May 2021 IEP. (See SRO Decision at 18-19.) He proceeded
to address the Student’s needs in various areas: spelling (see id.
at 18-19); reading (see id. at 19-20); writing (see id. at 20);
math (see id.); socialization (see id. at 20-21); physical
education (see id. at 21); OT (see id.); and, management needs
(see id. at 21-22). Again, the SRO provided copious citations to
the underlying record supporting his findings and conclusions.
Throughout this subsection, the SRO identified substantial input
from VSS faculty, staff, and related reports.
2. Annual Goals and OT
The SRO reported that, due to conflicting information
provided by VSS staff at the CSE meeting regarding whether Student
had mastered specific annual goals, the IHO found the School
District “correctly included the [Student’s] annual goals [i]n the
May 2021 IEP.” (SRO Decision at 22.) On appeal, Parent argued
this was error since the IEP included goals Student had mastered
(hereafter, the “Mastered Goals”). (See id.) However, the SRO
highlighted Parent failed to identify the Mastered Goals in her
answer and cross-appeal, instead citing to a page of transcript
referencing Student’s Annual Goal Numbers 22, 23, and 24 included
in the May 2021 IEP (hereafter, the “Disputed Goals”). (See id.)
The Disputed Goals pertain to Student’s motor skills. (See id. at
Page 24 of 80
23.) The SRO recounted the testimony regarding discussions of
Student’s goals and, in particular, that Student’s VSS
occupational therapist did not recall specifics regarding the
April 2021 CSE meeting or the May 2021 CSE meeting. (See id.; see
also id. at 24.) Moreover, it was “unclear from the occupational
therapist’s testimony when the [S]tudent mastered the May 2021 IEP
[Disputed Goals], and there [wa]s no indication in the hearing
record that the occupational therapist objected to these goals at
the time of the May 2021 CSE meeting.” (Id. at 24.) In sum, the
SRO determined:
While the CSE should design annual goals that are achievable within the time period that the proposed IEP is in effect, in this instance even if the [S]tudent had mastered some of the annual goals included on the May 2021 IEP[, i.e., the Disputed Goals], the inclusion of those [Disputed G]oals does not rise to the level of denying the [S]tudent a FAPE, as [1] the [Disputed Goals] are limited to addressing the [S]tudent’s motor skills, [2] there are additional appropriate goals that also address motor skills, and [3] an IEP does not need to identify annual goals as the vehicle for addressing each and every need in order to conclude that the IEP offered the [S]tudent a FAPE.
(Id. (citations omitted).) Therefore, there was “no basis in the
hearing record to disturb the IHO’s finding that the [S]tudent’s
annual goals were appropriate.” (Id.)
The SRO also upheld the IHO’s finding that the
recommended one weekly session of group OT and one weekly session
Page 25 of 80
of individual OT for Student was appropriate, despite Parent’s
claim that it was error. (See id. at 24-25.) The SRO recounted
that, while Student’s VSS occupational therapist testified that
she disagreed with the CSE’s blended recommendation, said
occupational therapist had conceded “one of the [S]tudent’s annual
goals was to improve ‘attending and independence to conduct
age-appropriate work’”. (Id. at 24.) Further, the VSS
occupational therapist testified “she did not recall whether she
voiced her disagreement with the recommendation for group OT during
the May 2021 CSE meeting.” (Id.) Moreover, the VSS occupational
therapist had reviewed the School District’s OT evaluation report,
which she agreed accurately reflected the Student’s needs; yet,
that evaluation stated Student was receiving one weekly individual
OT session and one weekly group OT session. (See id. at 25.) --- ---
Upon review, the SRO concluded “the evidence in the
hearing record d[id] not provide adequate support to overturn the
IHO’s determination.” (Id.) He highlighted the recommendation
was consistent with the School District’s inaccurate OT evaluation
report, which the VSS occupational therapist reviewed, but did not
correct, and, in any event, “the evidence in the hearing record
indicated that the [S]tudent was very social and needed to work on
improving attending and independent work completion . . . which
could be addressed in a small group setting.” (Id.)
Page 26 of 80
3. Consideration of Interfering Behaviors
As to the purported error Parent would assign to the IEP
for not recommending the conducting of a FBA or developing a BIP,
after thoroughly discussing the applicable law and regulations,
the SRO found none. (See SRO Decision at 26-27.) He explained
Parent’s reliance upon the Student’s December 2019
neuropsychological re-evaluation report (hereafter, the “December
2019 Report”) was unavailing. First, review of said December 2019
Report evinced “the evaluator concluded that the [S]tudent did not
meet the criteria for any anxiety or depressive disorder at that
time and suggested that those symptoms be ‘monitored’”. (Id.)
Second, “the May 2021 IEP did not list the December 2019 . . .
[R]eport among the evaluation information considered by the May
2021 CSE” and there was no claim Parent asked for its
consideration, but that the CSE declined said request. (Id.)
Moreover, “[P]arent’s argument that the [School D]istrict failed
to consider conducting social/emotional testing is not supported
by the evidence in the hearing record.” (Id.) In addition to
identifying the record evidence showing the School District did
consider Student’s social and emotional needs (see id. at 26-27),
the SRO underscored “an FBA was not conducted and a BIP was not
developed based on the feedback the May 2021 CSE received from
[VSS] staff indicating that the [S]tudent did not present with
behavior that was impeding her learning or the learning of others.”
Page 27 of 80
(Id. at 27 (citing IHO Hr’g Tr.).) And, “the May 2021 CSE developed
a social/emotional annual goal and recommended supports and other
strategies to address behaviors, including ‘the support of
counseling to re-acclimate into a public school setting’”. (Id.
(quoting May 2021 IEP).) Hence, “the hearing record support[ed]
the IHO’s finding that the [School D]istrict was not required to
conduct an FBA or develop a BIP for the [S]tudent for the 2021-22
school year, and also that the [School D]istrict provided supports
and services to meet [Student’s] social/emotional needs.” (Id.)
4. The 15:1+1 Special Class and 1:1 Aide
Once more, the SRO began his review by discussing the
relevant regulations and statutes applicable to determining a
student’s class placement. (See SRO at 28.) He then proceeded to
provide a thorough summary of the May 2021 CSE’s recommendation
for Student as articulated in its May 2021 IEP. (See id. at 28-
29 (citing May 2021 IEP).) The SRO further underscored “the CSE
chairperson testified that after the May 2021 CSE considered the
continuum of services, and after determining other options were
not appropriate for the [S]tudent, the May 2021 CSE recommended a
15:1+1 special class with the support of a 1:1 aide for the
[S]tudent to help her address her organizational and attentional
needs in her core classes.” (Id. at 29 (citing IHO Hr’g Tr.).)
With further citations to testimony from the School District’s
psychologist, the SRO elucidated why “the hearing record
Page 28 of 80
reflect[ed] that the [School D]istrict developed a comprehensive
program to address the [S]tudent’s needs” and, therefore, why there
was “no reason to depart from the IHO’s finding that the [School
D]istrict’s recommendation of a 15:1+1 special class with the
additional support of a 1:1 aide were sufficient to meet the
[S]tudent’s needs and provide her with an educational benefit.”
(Id. at 29, 30.)
5. Specialized Reading Instruction
In response to the School District’s challenge of the
IHO’s findings regarding the Student’s recommended specialized
reading support, the SRO held said findings were “legally flawed
and must be reversed.” (SRO at 30.) The SRO explained, per the
May 2021 IEP, the CSE recommended Student receive the following
specialized reading instruction: (a) during the school term: both
one-hour daily, individualized instruction and 40-minute, daily
group instruction, with both instruction sessions to be “in a
special location”; and (b) during the summer: one-hour daily,
individualized instruction delivered at home. (See id. at 31
(citing May 2021 IEP).) Further, the School District’s “May 18,
2021 prior written notice indicated that the [S]tudent’s daily
individual specialized reading instruction would be delivered at
home and the daily group specialized reding instruction would be
delivered during the school day.” (Id. (citing May 2021 Prior
Written Notice).) The SRO explained that, pursuant to applicable
Page 29 of 80
state regulations and guidelines, the May 2021 IEP specialized
reading instructions recommendation was compliant with what is
required of a FAPE. (See id. at 31-32; see also id. at 32 (“Here,
the [School D]istrict, in its prior written notice, advised the
[P]arent that the [S]tudent would have received group specialized
reading instruction during the school day and individual
specialized reading instruction after school with is consistent
with [the Office of Special Education Programs’] guidance.”
(citation omitted)).)
To the extent the specialized reading instructions
recommendations were not more specific in identifying the location
of services for the school year, that was merely a “procedural
violation” that, under the facts of this case, did not impede
Student’s right to a FAPE or cause her to be deprived of an
educational benefit. (Id. at 32.) The SRO elucidated: Testimony
from the IHO Hearing made clear “the May 2021 IEP delineation of
‘special location’ for specialized reading instruction was to give
providers flexibility in where they could provide the service
(e.g., provider’s classroom, therapy room, or push-in into a
classroom).” (Id.) Moreover, any concerns the Parent or VSS staff
had with providing Student’s individualized instruction after
school, e.g., that the Student would be fatigued, should have been
discussed at the May 2021 CSE meeting, but “there [was] no
Page 30 of 80
indication that these concerns were raised at the meeting or
otherwise communicated to the [School D]istrict”. (Id. at 32-33.)
Finally, the SRO agreed with the School District that
the IHO erred in finding, without any record support, the School
District could not provide Student’s group specialized reading
instruction by properly certified professionals. (See id. at
33-34.) In doing so, the SRO underscored relevant testimony from
the IHO Hearing:
The CSE chairperson testified that Wilson reading instruction was “a multisensory approach [to] reading and writing intervention and as a methodology, it follow[ed] the Orton- Gillingham methodologies for reading and writing instruction”. The CSE chairperson further testified that as a matter of practice, specific methodology or pedagogy were not referenced on an IEP; however, in the case of this student, the goals were developed with Wilson-based reading instruction in mind because the CSE “felt it necessary to capture the [student]’s present levels of performance in the program that she was currently working on at Vincent Smith”. Review of the May 2021 IEP shows that it explicitly indicated the student “should continue to participate in an Orton Gillingham-based [] program to improve her sound-symbol association and syllable awareness for reading and spelling”.
(Id. at 33-34 (internal citations omitted).) Thus, given the
record evidence, which the IHO appeared to disregard, and because,
“[a]ccording to State regulation, the proposed providers were
properly licensed or certified to provide the [S]tudent with
Page 31 of 80
specially designed reading instruction”, the SRO concluded the
IHO’s finding on this point had to be overturned. (Id. at 34.)
6. The 15:1+1 Special Class Profile
Finally, the SRO rejected the IHO’s finding that,
because the School District lacked knowledge regarding the class
profile at the assigned school, its recommendation of a 15:1+1
special class placement recommendation was flawed and
inappropriate. (See SRO Decision at 34-37.) Instead, he explained
“the sufficiency of the program offered by [a school] district
must be determined on the basis of the IEP itself” and claims that
assigned schools are incapable of implementing an IEP are not
sustainable if speculative. (Id. at 35.) His rationale had robust
case law support from the Second Circuit. (See id. (collecting
cases).) The SRO continued, clarifying that, “[a]lthough neither
the IDEA nor federal regulations require students who attend a
special class setting to be grouped in any particular manner,”
there are state regulations setting forth some requirements school
districts must follow for grouping students with disabilities.
(Id.; see also id. at 36 (discussing grouping in accordance with
age ranges and the concept of “functional grouping”).) He
continued, “[w]hile the district must implement a student’s IEP
consistent with the grouping requirements of State regulations,
the Second Circuit has held that the IDEA does ‘not expressly
require school districts to provide parents with class profiles.’”
Page 32 of 80
(Id. at 36 (quoting Cerra v. Pawling Cent. Sch. Dist., 427 F.3d
186, 192 (2d Cir. 2005); further citations omitted).)
Upon review, the SRO found the principal of the assigned
school (hereafter, the “Principal”) had met with the Parent for a
site visit, but, due to student privacy concerns, had declined to
share information specific to other students. Instead, according
to record testimony, among other things, the Principal informed
the Parent that, at the time of her site visit, there were eight
students enrolled in the 15: 1 +1 special class and, functionally,
while “there could be various disabilities, . . . the students had
similar academic levels”. (Id. at 36 (citing IHO Hr’g Tr. pp.
122, 123, 128-29).) The Principal further testified:
[S]he informed the [P]arent what the students would be working on, how the teachers would differentiate instruction based on the [S]tudent’s needs, and that the school used a Regents track curriculum that followed State standards. The [P]rincipal described the [S]tudent’s teachers to the [P]arent and informed her that she “was going to make sure that [the [S]tudent] had a [certified teaching assistant] . . . [who] was also a certified teacher” to provide the [S]tudent’s 1:1 aide support.
(Id. (committing citations to IHO Hr’g Tr.).) Accordingly, upon
the administrative record and relevant case law, the SRO concluded
“concerns about the likelihood that the [S]tudent would be
appropriately grouped with other students [was] speculative given
that the [S]tudent never attended the assigned public school site”.
Page 33 of 80
(Id. (collecting cases); see also id. (stating “claims regarding
grouping are inherently speculative as the district cannot
guarantee the composition of the class that the student would have
attended” (citation omitted; collecting cases)).) Hence, the SRO
concluded “the IHO’s determination that the [School D]istrict’s
recommendation was flawed and inappropriate because it was not
able to provide a class profile of the other students in the
proposed 15: 1 +1 special class was erroneous”. (Id. at 37.)
-*-*-*-
In sum, the SRO concluded: “[T]he evidence in the
hearing record support[ed] a finding that the [School D]istrict
offered the [S]tudent a FAPE for the 2021-22 school year” which
ended “the necessary inquiry”. (Id. at 37.) Thus, there was “no
need to reach the issue of whether [VSS] was an appropriate
unilateral placement for the [S]tudent or whether equitable
considerations support[ed] an award of tuition reimbursement.”
(Id. (citing Burlington, 471 U.S. at 370; M.C. v. Voluntown Bd. of
Educ., 226 F.3d 60, 66 (2d Cir. 2000)).)
II. The Instant Case
A. The Parties’ Positions
1. Plaintiff’s Position
Plaintiff raised three overarching arguments: the
School District failed to provide I.M. a FAPE; in terms of programs
and placement, VSS was appropriate for I.M.; and, the equites lie
Page 34 of 80
in Plaintiff’s favor. As to Plaintiff’s first argument regarding
a FAPE, she raises eight sub-arguments: (i) the School District
failed to provide I.M. appropriate reading services; (b) the School
District failed to make an appropriate class recommendation for
I.M.; (c) the School District’s program lacked appropriate peers
for I.M.; (d) the School District failed to recommend appropriate
related services for I.M.; (e) the School District’s
recommendation of APE was inappropriate for I.M.; (f) by denying
Parent meaningful participation in the development of I.M.’s IEP,
the School District violated I.M.’s procedural rights; (g) the
School District failed to assess I.M.’s social and emotional needs;
and (h) the School District failed to develop appropriate goals
for I.M. (See Support Memo at 8-22.)
a. Failure to Provide I.M. a FAPE
i. As to Appropriate Reading Services
Plaintiff contends the School District failed to provide
I.M. appropriate reading instructions, which the IHO properly
found and which finding the SRO improperly reversed. (See Support
Memo at 8-13.) She argues that, while the School District could
not, or would not, identify a specific location of said
instruction, it was understood that the instruction would occur
during the school day, and not after school at I.M.’s home, as
recommended in the May 2021 IEP. (See id. at 9.) Moreover, that
recommendation failed to take into consideration alleged concerns
Page 35 of 80
regarding fatigue I.M. suffered, especially in her efforts to read.
(See id. at 10-11.) Additionally, Plaintiff maintains that, as
the IHO properly found, the School District’s IEP failed to ensure
I.M.’s required special reading instructions would be provided via
the recommended Wilson reading methodology or by instructors
properly certified in that methodology. (See id. at 11-12.) Yet,
according to Plaintiff, “[s]chool districts do not have ‘carte
blanche’ to assign placements ‘that cannot satisfy the IEP’s
requirements.” (Id. at 12 (quoting T.Y. v. N.Y.S. Dep’t of Educ.,
584 F.3d 412, 420 (2d Cir. 2009)).)
ii. As to Appropriate Class Recommendation
Plaintiff challenges the decision of the IHO, affirmed
by the SRO, “that the recommendation of a 15:1+1 class ‘coupled
with supports’ such as a 1:1 aide could make up for the [School]
District’s failure to recommend a sufficiently small class for
I.M.” (Support Memo at 13.) She contends the School District’s
witnesses did not “explain how a 15:1:1 setting could meet I.M.’s
unique needs when she had regressed in similar programs in the
District, yet was progressing in VSS’s smaller classes.” (Id. at
14.) Relying upon a case from the Southern District of New York,
Plaintiff also argues such a class is “particularly ill equipped
to address I.M.’s dyslexia” and “inconsistent with an offer of [a]
FAPE.” (Id. (discussing Avaras v. Clarkstown Cent. Sch. Dist.,
No. 15-CV-2042, at *19 (S.D.N.Y. July 17, 2017)).)
Page 36 of 80
Plaintiff would have the School District’s
recommendation of a 1:1 aide discounted, asserting this component
of its recommendation cannot cure the deficient class-size
recommendation. (See id.) According to Parent, “[a] 1:1 aide is
a highly restrictive intervention that [would not be] necessary
for I.M. in an appropriate-sized class and program, and would
decrease I.M.’s independence rather than maximizing it.” (Id.
(emphasis in original).) To underscore this, Plaintiff asserts
I.M. did not require a 1:1 aide in her smaller class at VSS, where
she received “intensive support when needed while still working on
improving her independence”. (See id.; id. at 15.) She also
maintains the School District’s expert “opposed the provision of
a 1:1 aide for I.M.” (Id. at 14-15 (citing IHO Hr’g Tr. 212).)
Thus, given the testimony opposing a 1:1 aide for I.M. and that it
“would distract I.M. from learning rather than help”, placing I.M.
in a 15:1:1 special class, with a 1:1 aide was an inappropriate
recommendation. (See id. at 15.)
iii. As to Lack of Appropriate Peers
Parent asserts the SRO disregarded the IHO’s proper
finding that I.M. would not have appropriate peers if placed in
the School District’s 15:1+1 special class and, in doing so,
overruled the IHO’s implicit credibility determinations regarding
the School District’s witnesses. (See Support Memo at 15-16.)
She complains, inter alia, that the only School District witness
Page 37 of 80
with knowledge of the proposed class, had no knowledge of I.M. or
of functional grouping. (See id.) Further, Plaintiff maintains,
“[t]he IHO properly determined that [School] ‘District witnesses
lacked knowledge of the class profile in the [proposed placement
school]’”. (Id. at 16.) Conversely, she argues, the SRO erred in
concluding Parent’s objections to the class group were “inherently
speculative” where I.M. had not yet attended the proposed program
since, according to Second Circuit case law, “concerns regarding
access to . . . functional grouping were not speculative.” (Id.
(quoting J.S. v. N.Y.C. Dep’t of Educ., 104 F. Supp. 3d 392, 413
(S.D.N.Y.), aff’d, 648 F. App’x 96 (2d Cir. 2016)).)
iv. As to Appropriate Related Services
Plaintiff maintains both the IHO and SRO erred in not
finding the School District’s failure to recommend appropriate OT
for I.M., i.e., twice weekly 40-minute individualized sessions of
OT (versus the recommended weekly instruction consisting of one
30-minute individualized session and one 30-minute group session),
contributed to denying I.M. a FAPE. (See Support Memo at 17.)
The Parent claims longer, individualized OT was imperative “for
I.M.’s learning in order to improve her writing and attending” and
to allow her “to work at her own pace”, as well as “to accommodate
her need for movement breaks and transitions, and to address her
attentional deficits.” (Id.)
Page 38 of 80
v. As to APE
Plaintiff challenges the SRO’s non-consideration of the
IHO’s finding regarding APE for I.M., i.e., that inclusion of APE
for I.M. “was more a function of what was available as opposed to
what [I.M.] needed to be successful” (IHO Decision at 22), and
therefore an inappropriate basis for the School District’s IEP.
(See Support Memo at 17-18.) She argues the SRO was wrong not to
consider this argument, upon the rationale that Plaintiff had not
raise that issue in her IDEA Complaint, since the School District
had introduced an exhibit at the underlying IHO Hearing which
reflected I.M. would receive APE. (See id. at 18.) Moreover,
according to Plaintiff, Second Circuit law instructs “the waive
rule is not to be mechanically applied.” (Id. (citing F.L., 274
F. Supp. 3d at 114).)
vi. As to Parent’s Meaningful Participation
Parent contends, although she made numerous requests
that the School District consider continuing I.M.’s placement at
VSS, “the [School] District never considered that option (or any
similar one) with an open mind.” (Support Memo at 19; see also
id. at 20.) According to her, the School District’s placement
recommendation was driven solely by its non-availability of a
smaller sized class for those on an academic track, like I.M., as
opposed to a life-skills track. (See id.) Parent further asserts
that no deference is due the SRO’s conclusion that the School
Page 39 of 80
District did not predetermine I.M.’s placement because such
determination is not a matter requiring educational expertise.
(See id. (quoting A.K. v. Westhampton Beach Sch. Dist., No. 17-
CV-0866, 2021 WL 621236, at *14 (E.D.N.Y. Jan. 6, 2022), report
and recommendation adopted sub nom., Killoran v. Westhampton Beach
Sch. Dist., 2021 WL 665277 (E.D.N.Y. Jan. 25, 2022)).)
vii. As to I.M.’s Social and Emotional Needs
Parent asserts the School District failed to assess I.M.
regarding her social and emotional needs even though it intended
to have her “transition into a much less supportive environment.”
(Support Memo at 20.) She would fault the SRO for his conclusion
that I.M.’s “social-emotional success at VSS . . . meant that
[I.M.] would not face social[-]emotional difficulties in the
substantially different District program.” (Id. at 21 (citing SRO
Decision at 27).) She also implies the School District’s alleged
unawareness that I.M.’s emotional needs required monitoring is
disingenuous given that the N.Y.S. Education Department “has noted
that students like I.M. with dyslexia are at increased ‘risk of
anxiety, depression, low self-esteem and peer rejection.’” (Id.
(without citation).) Parent baldly concludes that, “[w]ithout an
appropriate BIP in place, especially in a significantly larger
classroom than she was attending, I.M. would have regressed
emotionally, behaviorally, and educationally.” (Id.)
Page 40 of 80
viii. As to Appropriate Goals Development
Without any meaningful elaboration, Plaintiff contends
several of the School District’s proposed goals for I.M. were
inappropriate because either I.M. had already mastered them or
they were too advanced. (See Support Memo at 22.) Accordingly to
Parent: “At the January 2022 CSE, the [School] District adopted
several of VSS’s Goals, representing an awareness that its original
Goals were fatally flawed.” (Id. (citing IHO Hr’g Tr. 493).) In
conclusory fashion, she also argues the School “District failed to
sustain its burden to prove its Goals were appropriate” since
“[n]one of its witnesses testified or explained at hearing how its
Goals would be appropriate for I.M.” (Id.)
b. The Appropriateness of VSS
Highlighting that “[a] private placement need not meet
the IDEA requirement for a FAPE,” R.E. v. N.Y.C. Dep’t of Educ.,
694 F.3d 167, 187 n.3 (2d Cir. 2012), Plaintiff contends the “IHO
properly found VSS appropriate for I.M. and that I.M. progressed
there.” (Support Memo at 23.) She also accurately states the SRO
did not rule on this issue. (See id.) Nonetheless, claiming
“[t]he IHO’s determination that VSS appropriately met I.M.’s needs
is well supported by the record,” Plaintiff asserts the IHO’s order
directing the School District reimburse to her the cost of the VSS
tuition and related transportation expenses incurred should be
upheld. (Id.)
Page 41 of 80
c. The Equities
Relying upon the Second Circuit’s M.H. case, Parent
asserts the IHO correctly found the relevant equitable
considerations weighed in her favor, i.e., Parent “had
participated in CSE meeting for I.M. and cooperated in all aspects
of the CSE process, including raising her concerns at CSE
meetings.” (Support Memo at 24 (quoting M.H., 685 F.3d at 25).)
For example, Parent: complied with the School District’s requests
to evaluate I.M.; visited the proposed placement site; provided
timely notice of her intention to place I.M. at VSS and seek
tuition reimbursement; notified the School District of her
concerns about I.M.’s education; and, permitted VSS to share
relevant reports regarding I.M. with the School District. (See
id.) Moreover, Parent contents the IHO properly found her
testimony was credible that she had considered I.M.’s placement
recommended by the School District notwithstanding her having
signed a contract with VSS. (See id.) In sum, according to
Plaintiff, “[t]he IHO’s Decision concerning the equities [was]
well supported by the record and should not be disturbed,
especially as the SRO made no [such] findings here.” (Id.)
2. The School District’s Position
Unsurprisingly, the School District believes the SRO
Decision is the correct one and advocates for its being upheld.
(See generally Opp’n.) After articulating the relevant standard
Page 42 of 80
of review (see id. at 2-5), it puts forth three points: the SRO
properly determined I.M.’s IEP provided her a FAPE (see id. at 5-
9); the Parent’s placement of I.M. at VSS for the subject school
year was not appropriate given her unique educational needs (see
id. at 9-12); and, the equities of this case do not favor Plaintiff
such that reimbursement is warranted (see id. at 12-15).
a. The Applicable Standard of Review
In opposition, the School District first reminds the
Court that its review, while de novo, “is tinged with a significant
degree of deference” and is to be based upon the preponderance of
the evidence. (Opp’n at 2 (quoting P. ex rel. Mr. & Mrs. P. v.
Newington Bd. of Educ., 546 F.3d 111, 118 (2d Cir. 2008)).) It
further states:
In performing its review of the administrative decisions below, the inquiry before the Court is normally two-fold. The Court must determine: (1) whether the District complied with the procedures set forth in the IDEA[;] and (2) whether the IEPs at issue were reasonably calculated to enable the student to receive educational benefits.
(Id. at 3 (citing Bd. of Educ. of the Hendrick Hudson Cent. Sch.
Dist. v. Rowley, 458 U.S. 176, 206-09 (1982)).) In doing so, the
“Court must be careful not to substitute its own notions of sound
educational policy for those of the school authorities being
reviewed.” (Id. (citing M.C. v. Voluntown Bd. of Educ., 226 F.3d
60, 66 (2d Cir. 2000)).) The School District further elucidates
Page 43 of 80
that, although a district court’s review is not a mechanism to
rubber-stamp a SRO’s decision, the court “is required to give
deference to that decision, particularly when, as in the instant
case, the SRO ruling below reflects a thorough and careful review
of the record by the SRO.” (Id. at 4 (citing Cerra, 427 F.3d at
191-92, and 196).)
b. The SRO Decision Should be Upheld
Next, the School District contends the SRO Decision is
correct, i.e., that, based upon the full record evidence:
the CSE’s recommendations for 2021-2022 school year were appropriate to meet the Student’s needs, in light of the multiple supports, modifications, and individualized aspects of the placement and program recommendation coupled with the totality of the evaluative
September 2021[,] and January 2022 CSEs that supported their recommendations.
(Opp’n at 5; see also id. at 6 (identifying the CSEs’ reliance
upon “a February 2021 psycho-educational evaluation, reading
evaluation, occupational evaluation[,] and anecdotal information
from [VSS] as a basis for determining the [S]tudent’s needs and
recommending an educational program for the [S]tudent).) In
contrast, the School District contends the IHO failed to consider
the full scope of record evidence, thereby rendering a flawed
decision. (See id. at 5.) The School District further argues the
CSEs’ deviation from “standard practices”, i.e., recommending
goals based upon a specific reading instruction methodology,
Page 44 of 80
evinces the School District’s proper placement of I.M. in “an
appropriate self-contained class setting, with a specialized
program focused on addressing her learning disabilities and
providing evidence-based reading instruction.” (Id. at 6.)
The School District summarily agrees with the IHO’s
decision there was not a sufficient basis for an FBA or BIP, which
the SRO determined was, in any event, beyond the scope of the IHO’s
review authority since the Parent did not sufficiently challenge
its absence. (See id. (citing IDEA Complaint).) Similarly, as to
the IHO’s determination regarding the IEP’s APE recommendation,
i.e., said recommendation was inappropriate for I.M. and, thereby
constituted a denial a FPE, the School District merely states,
because not raised in the Parent’s IDEA Complaint, it was beyond
the scope of the IHO’s purview, which is what the SRO concluded.
(See id.; see also SRO Decision at 13-14.)
Furthermore, the School District takes the position the
IHO’s finding that “the deficiencies in providing specialized
reading support during the school day, the insufficient class
profile knowledge base for the CSE’s recommendation[,] and the
inappropriate placement of the Student in Adaptative Physical
Education constitute a denial of a FAPE” (IHO Decision at 24) was
“unsupported by the record.” (Opp’n at 7.) The School District
also disagreed with the IHO’s determination that “it remained
unclear . . . whether the [School] District could have delivered
Page 45 of 80
Wilson reading instruction with certified instructors in the group
specialized reading instruction” (IHO Decision at 22), which, in
any event, was “based upon inappropriate speculation.” (Opp’n at
7.) However, “[s]peculation that the school district will not
adequately adhere to the IEP is not an appropriate basis for
unilateral placement.” (Id. (quoting R.B. v. N.Y.C. Dep’t of
Educ., 603 F. App’x 36, 40 (2d Cir. Mar. 19, 2015)).)
The School District also would fault the IHO for not
properly considering the September CSE recommendation since the
IHO incorrectly determined said CSE made “no significant program
changes to the Student’s IEP”, which it contends is not the case.
(Id. (quoting IHO Decision at 12 and IHO Hr’g Tr. at 125).)
According to the School District, the IHO did the same regarding
the January 2022 CSE; he failed to adequately consider it. (See
id. at 7-8.) The School District relies upon the Second Circuit’s
R.E. case to support its position that the IHO’s non-consideration
of these CSEs was improper. (See id. at 8 (quoting R.E., 694 F.3d
at 187-88).)
c. VSS Was Not an Appropriate Placement
Although the SRO found it unnecessary to examine whether
I.M.’s unilateral placement at VSS by her Parent was appropriate,
the School District contends the IHO’s finding in that regard is
not supported by the evidence. (See Opp’n at 9 (“[T]he hearing
record contains minimal evidence regarding the Student’s
Page 46 of 80
performance at [VSS].”).) “[R]ather[,] the testimony from [VSS]
witnesses were merely a generalized description of the program and
strategies which fail to establish how [VSS] appropriately
addressed the Student’s unique needs.” (Id.) Indeed, the evidence
presented was not relevant to the subject school year and VSS
“failed to provide any updated testing or data to demonstrate the
Student’s progress.” (Id. (citing IHO Decision at 24-25; further
citation omitted); see also id. at 11 (stating VSS “failed to
produce any meaningful data regarding the provision of services,
including failure to provide the Wilson End of Step Assessment
Reports”).) The School District would further fault the IHO for
not considering the testimony of its experts, who provided evidence
of the School District’s ability to provide appropriate
specialized reading instructions to I.M. (See id. at 10-11.)
Moreover, it challenges whether VSS “provided the Student with
instruction with fidelity to the necessary components of” the
Wilson and S.P.I.R.E. reading programs VSS utilized. (See id. at
10.) Finally, the School District asserts the IHO failed to
properly consider and weigh the restrictiveness of VSS when
determining whether placement there was appropriate to meet the
Student’s educational needs. (See id. at 11.) Under Second
Circuit precedent, that is a factor to be considered when
determining whether a parent is entitled to an award of tuition
reimbursement. (See id. (citing C.L. v. Scarsdale Unition Free
Page 47 of 80
Sch. Dist., 744 F.3d 826, 836 (2d Cir. 2014)).) The School
District maintains the record demonstrates VSS was overly
restrictive: it is very small, with less than 60 students for the
subject school year; it is comprised only of students with
disabilities; there were only ten students in I.M.’s grade; and,
because I.M. lives more than 50 miles from VSS, she was precluded
from interacting with peers who were nondisabled both during and
after the school day. (See id. at 11-12.) Hence, the School
District argues, because “the totality of the evidence presented
in the hearing record shows that [VSS] failed to provide the
[S]tudent with specially designed instruction which addressed her
unique needs”, tuition reimbursement is not warranted. (Id. at
12.)
d. The Equities Do Not Support Reimbursement
Lastly, the School District asserts Parent is not
entitled to tuition reimbursement because her request was not
timely. (See Opp’n at 13.) More specifically, it argues:
[A]t the May 2021 CSE meeting, the Parent failed to inform the [School] District that she was taking steps to unilaterally place the Student[,] and the Parent waited until August 16, 2021 to file her 10-day notice. Despite the CSE convening on September 14, 2021 to consider the Parent’s concerns, the Parent failed to reject this program recommendation until December 3, 2021[,] and filed the [IDEA C]omplaint on December 6, 2021, before the [School] District could schedule a resolution meeting and after she was contractually obligated to pay full tuition.
Page 48 of 80
(Id. at 13.) According to the School District, given this timeline
and applicable case law, Plaintiff is precluded from receiving
tuition reimbursement. (See id. (citing A.H. v. N.Y.C. Dep’t of
Educ., 652 F. Supp. 2d 297, 312-13 (E.D.N.Y. 2009), and P.G. v.
N.Y.C. Dep’t of Educ., 959 F. Supp. 2d 499 (S.D.N.Y. 2013)).)
The School District would further have this Court reject
the IHO’s finding that the Parent was credible when she indicated
she would consider a public school placement even though she had
already signed a contract with VSS for I.M.’s 2021-2022 school
year. (See id. at 14 (quoting IHO Decision at 26).) It argues
said finding is unsupported by the record, especially since Parent
did not take timely action in notifying the School District before
her obligation to pay tuition to VSS was affirmatively triggered.
(See id. at 14.)
Additionally, the School District asserts Parent “did
not adequately cooperate with the CSE as she did not provide any
documents from [VSS] to the CSE in preparation of any of the
respective meetings.” (See id.) Nor, according to the School
District, is there any record evidence supporting the IHO’s finding
that Parent and VSS continually raised concerns at each of the CSE
meetings that the recommended class was too big; instead, the
evidence shows: VSS “witnesses had no specific recollection of
raising their concerns with the [School] District program
Page 49 of 80
recommendation”, i.e., “none of these concerns were actually
expressed to the CSE during the meetings”; and, “the Parent
conceded that she never raised any concerns regarding the data or
the results of the District’s psychoeducational evaluation,
reading evaluation, [or] occupational therapy until the filing of
the [IDEA C]omplaint.” (Id. at 14-15.) As such, equitable factors
weigh against awarding Parent tuition reimbursement. (See id. at
15.)
B. The Court’s Ruling
In making its ruling in this case, the Court applies the
Burlington/Carter test. See GB v. N.Y.C. Dep’t of Educ., 145 F.
Supp. 3d 230, 243 (S.D.N.Y. 2015). Under this test, the School
District will be required to pay for the VSS tuition “only if: (1)
the program recommended by the IEP was inadequate or inappropriate;
(2) the alternative placement the Parent[] chose[s] was
appropriate; and (3) the equitable factors weigh in favor of
reimbursement.” Id. at 244 (citing Carter, 510 U.S. at 12-16;
Burlington, 471 U.S. at 373-74; further citation omitted); see
also C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 73
(2d Cir. 2014); C.D. v. N.Y.C. Dep’t of Educ., No. 15-CV-2177,
2016 WL 3453649, at *11 (E.D.N.Y. June 20, 2016).
Page 50 of 80
1. Prong I of the Burlington/Carter Test
“The first prong of the Burlington-Carter test requires
a court to review both the procedural and substantive adequacy of
the underlying decision.” GB, 145 F. Supp. 3d at 244 (citing R.E.,
694 F.3d at 189-90); see also J.S., 104 F. Supp. 3d at 401 (same).
The Court turns first to the Parent’s procedural challenges, and
then her substantive challenges. See id. at 245.
a. Procedural Challenges
A court must determine “whether the state has complied
with the procedures set forth in the IDEA.” T.P. ex rel. S.P. v.
Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009);
see also Cerra, 427 F.3d at 192 (same).
Not every procedural error in the development of an IEP renders that IEP inadequate. Grim [v. Rhinebeck Cent. Sch. Dist.], 346 F.3d [377,] 381-82 [(2d Cir. 2003)]. “Only procedural inadequacies that cause substantive harm to the child or his parents— meaning that they individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent’s participation in the creation or formulation of the IEP—constitute a denial of a FAPE.” Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff’d, 293 [F. App’x] 20 (2d Cir. 2008).
C.D., 2016 WL 3453649, at *12; see also R.E., 694 F.3d at 190
(“Multiple procedural violations may cumulatively result in the
denial of a FAPE even if the violations considered individually do
not.”). “Procedural violations entitle the parents to
Page 51 of 80
reimbursement ‘only if they [1] ‘impeded the child’s right to a
FAPE,’ [2] ‘significantly impeded the parents’ opportunity to
participate in the decision-making process,’ or [3] ‘caused a
deprivation of educational benefits.’’” GB, 145 F. Supp. 3d at
244 (quoting M.W., 725 F.3d 131 (2d Cir. 2013); further citation
omitted); see also 20 U.S.C. § 1415(f)(3)(E)(ii). Parent asserts
two procedural-based arguments: first, she was denied meaningful
participation in the development of I.M.’s IEP; and, second, no
FBA was conducted and no BIP was developed.
i. Lack of Meaningful Participation
Upon the record presented, Parent’s assertion that she
was denied meaningful participation in the development of I.M.’s
IEP is unavailing. As in C.D., here, “[n]either the IHO nor the
SRO found that the [Parent[] w[as] denied meaningful
participation.” C.D., 2016 WL 3453649, at *12. First, in his
decision, the IHO stated simply that Parent “participated in all
the CSE meetings regarding her daughter.” (IHO Decision at 14.)
He did not make any finding that the School District failed to
consider the Parent’s concerns. Then, in a more fulsome manner,
the SRO explained: (i) the Parent’s full participation in the CSEs;
(ii) in response to Parent’s August 2021 and December 2021 letters,
the CSE reconvened to respond to Parent’s concerns; and, (iii) at
the IHO Hearing, Parent testified, inter alia, that she was “given
the opportunity to discuss the [S]tudent’s evaluations” and was
Page 52 of 80
able to raise her concerns about various School District
recommendations. (See SRO Decision at 16-17.) Further,
recognizing as understandable the Parent’s preference that Student
remain at VSS, the SRO stated the School District “was not required
to consider placement of the [S]tudent in a nonpublic school once
it determined that a less restrictive placement was appropriate to
address the [Student’s needs.” (Id. at 17.) Of significance, the
SRO concluded: “Although the hearing record reflects parental
disagreement with the [S]chool [D]istrict’s proposed IEP and
placement recommendation[,] that does not amount to a denial of
the [P]arent’s meaningful participation in the development of the
program”; indeed, the SRO determined the IHO Hearing record failed
to support either the Parent’s claim of predetermination or
prevention of participation. (Id.)
“This [C]ourt sees no reason to disturb the finding of
both the IHO and SRO that the [P]aren’t[] w[as] able to
meaningfully participate in developing the IEP.” C.D., 2016 WL
3453649, at *13. Like the SRO, the Court rejects Parent’s reliance
upon her August 2021 and December 2021 letters to the School
District to establish her claim since, as the SRO observed, they
were the impetus for the CSE to be reconvened twice. (See Support
Memo at 19 (citing Exs. P-11 & P-12).) Similarly, Parent’s
citation to the IHO Hearing transcript in support of her procedural
claims fail to carry her burden. (See id. (citing IHO Hr’g Tr. at --- ---
Page 53 of 80
66, 81).) Page 66 contains testimony from the chairperson of the
CSE testifying about the appropriate options considered for I.M.’s
placement. Page 81 contains the CSE chairperson’s general
testimony regarding the reconvened September 2021 CSE meeting in
response to Parent’s August 2021 letter and inviting VSS staff to
comment on the School District’s responses to same. If anything,
the proffered testimony underscores Parent’s participation.
ii. Failure to Conduct FBA or Develop BIP
In her moving papers, Plaintiff presents this argument
as the CSE failing to assess I.M.’s social and emotional needs.
That claim logically leads to the purported failure to conduct a
FBA and develop an appropriate BIP. With that context, the Court
proceeds to consider Plaintiff’s argument.
Under New York regulations, a CSE must, “in the case of a student whose behavior impedes his or her learning or that of others, consider strategies, including positive behavioral interventions, and supports and other strategies to address that behavior.” 8 NYCRR § 200.4(b)(3)(i). These strategies include an FBA, which is “the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment.” Id., § 200.1(r). FBAs are conducted “as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities.” Id. § 200.4(b)(1)(v). An FBA must include an “identification of the problem behavior” and “the formulation of a hypothesis regarding the general conditions under which [the] behavior usually occurs.” Id. § 200.1(r). Where the student’s behavior impedes his learning or
Page 54 of 80
that of his peers, the CSE should create a BIP that sets out “intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s).” Id. § 200.22(b)(4)(ii). Notwithstanding those requirements, the case law is clear that “a failure to conduct an FBA . . . does not rise to the level of a denial of a FAPE if the IEP adequately identifies the problem behavior and prescribes ways to manage it.” R.E., 694 F.3d at 190; see also A.C., 553 F.3d at 172 (failure to perform FBA did not render IEP legally inadequate in light of IEP’s provision of strategies to address child’s behavior); T.Y., 584 F.3d at 419 (“substantial evidence in the record” of ways to address problematic behaviors provided basis for SRO to conclude that, despite failure to conduct a FBA or a BIP, a FAPE was not denied).
GB, 145 F. Supp. 3d at 251–52.
Here, “[a]pplying these standards to the record
evidence, the IHO’s and SRO’s finding that the lack of an FBA and
BIP did not deny [I.M.] a FAPE is persuasive and merits deference.”
J.S., 104 F. Supp.3d at 405; see also GB, 145 F. Supp. 3d at 252
(“Applying these standard to the evidence in the hearing record,
the SRO’s finding on this issue is again deserving of deference.”).
Indeed, there was no record evidence that I.M. “engage[d] in the
types of disruptive behavior that require[s] an FBA or BIP.” GB,
145 F. Supp. 3d at 252. Rather, the December 2019 Report upon
which Parent relies in putting forth her social-and-emotion-needs
Page 55 of 80
argument is unavailing since: it did not establish I.M. “meet the
criteria for any anxiety or depressive disorder” (SRO Decision at
26 (quoting December 2019 Report)); it was not among the evaluative
Parent did not “assert a claim that she requested consideration of
that evaluation report and the CSE failed to consider it.” (Id.)
Further, there was record evidence showing I.M. did not display
social or emotional issues; Parent reported her daughter was a
“social butterfly”, and the VSS staff providing feedback that I.M.
did not present with behaviors impeding to her learning or the
learning of others. (See id. at 27.) --- --- “Where there is no evidence
that a student’s behavior interfered with his or another student’s
ability to learn, the CSE is not required to conduct an FBA or
BIP.” GB, 145 F. Supp. 3d at 252 (citing J.S., 104 F. Supp. 3d at
405-06)). As such, “the Court therefore agrees with the IHO’s and
SRO’s conclusion that [I.M.]’s behavior did not interfere with
h[er] learning to the extent that the CSE was required to conduct
an FBA.” J.S., 104 F. Supp. 3d at 406
Finally, as the SRO further explained, the May 2021 CSE
also: “developed a social/emotional annual goal and recommended
supports and other strategies to address behaviors”; recommended
twice monthly counseling for I.M.; and, recommended a 1:1 aide to
support I.M. during instructional time, thereby assisting in
I.M.’s transition back into a different school setting. (Id.)
Page 56 of 80
“Where, as here, a student’s ‘behaviors were well-known and were
discussed at the CSE meeting,’ ‘the failure to conduct an FBA
[does] not rise to level of denial of a FAPE’ so long as the IEP
contains adequate strategies for managing those behaviors.” J.S.,
104 F. Supp. 3d at 407 (quoting P.L. v. N.Y. Dep’t of Educ., 56 F.
Supp. 3d 147, 161-62 (E.D.N.Y. 2014)). Moreover, Parent’s
contention that “[w]ithout an appropriate BIP in place, especially
in a significantly larger classroom than she was attending, I.M.
would have regressed emotionally, behaviorally, and educationally”
(Support Memo at 21), is little more speculation. In any event,
the purported inadequacy in I.M.’s IEP caused by a lack of an FBA
or BIP was rectified—or “rescued”—by the inclusion of the
components identified by the SRO. Cf. id. at 408 (finding “the
SRO reasonably, and in the Court’s view correctly, concluded that
the ‘recommended strategies to address the student’s management
needs, as well as additional teacher supports, ICT services, and
the annual goals in the [subject] IEP rescued any inadequacy”)).
b. Substantive Challenges
As Judge Ross of this District has explained:
A school district complies with the substantive provisions of the IDEA when it provides a disabled child with an IEP that is “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 207. A school district is not, however, required to furnish “every special service necessary to maximize each handicapped child’s potential,” id. at 199, or to provide
Page 57 of 80
“everything that might be thought desirable by loving parents,” Walczak, 142 F.3d at 132 (internal quotation marks and 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.’” Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130). Therefore, “a court may not second-guess state educators’ policy decisions in the effort to maximize a handicapped child’s educational potential.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997); see also Rowley, 458 U.S. at 208 (“[O]nce a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States.”). In order to avoid “impermissible meddling in state educational methodology,” a federal court reviewing the adequacy of an IEP “must examine the record for any objective evidence indicating whether the child is likely to make progress or regress under the proposed plan.” Walczak, 142 F.3d at 130 (internal quotation marks and citations omitted).
C.D., 2016 WL 3453649, at *13; see also F.L., 274 F. Supp. 3d at
119 (“In analyzing an IEP’s substantive adequacy, courts review
‘the record for objective evidence that indicates whether the child
is likely to make progress or regress under the proposed plan.’”
(quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105,
113 (2d Cir. 2007))); GB, 145 F. Supp. 3d at 249. If substantive
inadequacy is found, a parent is “automatically entitle[d] . . .
to reimbursement.” R.E., 694 F.3d at 190.
Page 58 of 80
Plaintiff’s substantive challenges regard: (i) reading
services; (ii) class recommendation; (iii) appropriate peers; (iv)
related services; (v) APE; and (vi) goals development. The Court
address each, in turn.
i. Reading Services
As to Purported Retrospective Testimony: To the extent
Parent challenges I.M.’s IEP based upon the Circuit’s prohibition
on retrospective testimony from school districts regarding
additional services being provided “beyond those listed in the
IEP”, in this instance, that reliance is misplaced. See R.E., 694
F.3d at 186; (cf. Support Memo at 8-9). That is so because the
Second Circuit rejected “a rigid ‘four corners’ rule prohibiting
testimony that goes beyond the face of the IEP.” Id.; see also
id. at 195 (“[W]e reject a rigid ‘four-corners rule’ that would
prevent a court from considering evidence explicating the written
terms of the IEP.”). Hence, “[w]hile testimony that materially
alters the written plan is not permitted, testimony may be received
that explains or justifies the services listed in the IEP.” Id.
(citing D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564–65 (3d
Cir. 2010) (“[A] court should determine the appropriateness of an
IEP as of the time it was made, and should use evidence acquired
subsequently to the creation of an IEP only to evaluate the
reasonableness of the school district’s decisions at the time they
were made.”)); see also K.R. ex rel. Matthew R. v. N.Y.C. Dep’t of
Page 59 of 80
Educ., 107 F. Supp. 3d 295, 302 (S.D.N.Y. 2015) (“[W]hile the IEP
must be evaluated prospectively and cannot be altered by
retrospective testimony about what a school district might have
done, testimony explaining how the IEP would be implemented is
sufficiently prospective and may be considered by the Court.”).
Thus, “[t]he appropriate inquiry is into the nature of the program
actually offered in the written plan.” Id. at 187 (emphasis
added). Here, the testimony proffered did not go beyond the
Subject IEP; rather, it was presented to explain the nature of
said IEP and to justify the locations identified for I.M.’s
individualized reading instructions, e.g., delineating “special
location” for specialized reading instruction “was to give
providers flexibility in where they could provide the service”.
(SRO Decision at 32.)
As to Specification of Location of Services: The SRO
recognized a failure to be specific with identifying the location
of services can be a procedural violation. (Id. (citations
omitted).) Although not explicitly stated, given the SRO’s
subsequent discussion, it is readily apparent that—having
thoroughly reviewed the underlying record—the SRO found no such
procedural inadequacy. For example, the record evidence showed,
at the May 2021 CSE in which Parent participated, there was
discussion about providing I.M.’s specialized reading services
after school. (See IHO Hr’g Tr. 72-75.) Further, the May 2021
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IEP identified “home” as the location where I.M.’s summer
specialized reading services would be provided. (See SRO Decision
at 32 (citing Subject IEP).) The SRO also underscored Parent was
informed via the School District’s May 2021 Prior Written Notice
that the CSE recommended individualized specialized reading
instruction at home and group specialized reading instruction at
school. (See SRO Decision at 32 (citing May 18, 2021 Prior Written
Notice, Ex. D-5).) Additionally, the SRO astutely explained, with
adequate support for same, why the School District’s
recommendation of providing the Student’s individualized
specialized reading after-school comported with providing I.M. a
FAPE. (See SRO Decision at 31-32.) Finally, the SRO acknowledged
staff from VSS testified regarding their belief that after-school
reading instruction for I.M. would cause her to be fatigued. (See
id. (citing IHO Hr’g Tr. at 360-61, 368, 524-25).) However, said
testimony evinces it was not clear that staff concerns were
vocalized during the CSE meeting. As the SRO stated: “Certainly,
these are concerns that should have been discussed at the May 2021
CSE meeting . . . ; yet, there is no indication that these concerns
were raised at the meeting or otherwise communicated to the [School
D]istrict.” (Id. at 32-33.) Parent has failed to demonstrate
that this was not the case. 8 Given the SRO’s well-reasoned
8 Parent’s argument that the SRO “incorrectly claimed [Parent] did not communicate concerns regarding I.M.’s reading fatigue” to Page 61 of 80
the School District fails. (Support Memo at 11.) In support of that position, Parent stated the School District “discussed Ms. Micali’s report, which expressed concerns about I.M.’s reading fatigue, at multiple CSE meetings.” (Id. (citing Da Vinci Evaluation Report, Ex. D-2, at 11; May 2021 Prior Written Notice, Ex. D-5, at 2; and May 2021 IEP at 1).) The cited evidence shows the School District was aware I.M. could fatigue in her reading efforts; it does not show Parent communicated her concerns regarding the fatigue factor to the School District. Quite simply, those are two unrelated issues. At bottom, Parent has not establish by a preponderance of the evidence that the SRO’s conclusion in this regard was incorrect. See, e.g., M.H., 250 F. App’x at 430. Further, the Court is unpersuaded by Parent’s contention that the School District’s identification of a “special location” means “within the school day”; such an argument is little more than a bald leap unsupported by her citation to the record. (Support Memo at 8 (citing IHO Hr’g Tr. at 73-75, and May 2021 IEP at 25).) And, Parent’s reliance upon the testimony of the School District’s classroom teacher, Madeline Egan, does not support her position about the meaning of “special location”; at best it is a mischaracterization. (See id.) Egan testified that, during the September 2021 CSE and because of concern that I.M. “was having specialized reading after school”, there was discussion about how to provide I.M. her specialized reading services during the school day. (See id. (citing IHO Hr’g Tr. at 306); see also IHO Hr’g Tr. at 305.) If anything, said testimony demonstrates it was sufficiently clear to all parties involved in the development and implementation of I.M.’s IEP that the location for the provision of I.M.’s individualized specialized reading services would be after-school, in her home. As the SRO explained, inter alia, “location must be stated with sufficient clarity to be understood by all persons involved in the development and implementation of the IEP.” (SRO Decision at 32 (quoting N.Y.S. Educ. Dep’t IEP Guide)); see also, e.g., The University of the State of New York, The State Education Department: Guide to Quality Individualized Education Program (IEP) Development and Implementation (Feb. 2010 (revised Sept. 2023), available at https://www.nysed.gov/sites/default/files/programs/special- education/guide-to-quality-iep-development-and- implementation.pdf. The record evidence demonstrates that was the case here. Therefore, the SRO’s determination on this issue is entitled to deference by this Court. Page 62 of 80
explanation, which was more thorough and carefully considered than
that of the IHO, the Court defers to the SRO’s conclusion that the
School District’s procedural violation in not being more specific
with identifying the location of I.M.’s specialized reading
services did not result in denying I.M. a FAPE. See R.E., 694
F.3d at 189 (instructing where 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
(quotations and citation omitted)).
As to Instructors: Parent maintains I.M.’s Subject IEP
was inadequate because it was unclear whether the School District
“could provide Wilson Reading instruction with certified
instructors for I.M.’s group reading services.” (Support Memo at
11-12.) She also contends “[t]he [School] District’s Goals were
designed to be addressed via Wilson Reading methodology.” (Id. at
12 (citing IHO Hr’g Tr. at 70, 312).) Moreover, according to
Parent, the teacher who was to provide I.M.’s group reading
instruction was not properly certified; nor was the 15:1:1 special
classroom teacher who would be partially responsible for
implementing the Wilson goals for I.M. (See id.)
Parent reads too much into the subject IEP. In this
case, the Wilson Reading methodology provided a relevant reference
point from which to compose I.M.’s Subject IEP; however, the IEP
did not mandate strict adherence to that methodology. That is not
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surprising since, as the SHO stated: “In general, a CSE is not
required to specify methodology on an IEP, and the precise teaching
methodology to be used by a student’s teacher is usually a matter
to be left to the teacher’s discretion—absent evidence that a
specific methodology is necessary.” (SRO Decision at 33
(collecting cases).) Indeed, the SRO aptly articulated, the CSE
chairperson testified, inter alia: the CSE discussed the Wilson
Reading methodology; I.M.’s “goals were developed with Wilson-
based reading instruction in mind because the CSE ‘felt it
necessary to capture [I.M.]’s present levels of performance in the
program’”; and, for I.M., her IEP indicated she “should continue
to participate in an Orton Gillingham-based (O-G) program to
improve her sound-symbol association and syllable awareness for
reading and spelling.” (SRO Decision at 33-34 (citations omitted;
emphasis added).) Moreover, the CSE chairperson further testified
it was the School District’s general practice not to reference a
specific methodology or pedagogy an IEP. (Id. at 33.) Further,
the CSE chairperson testified I.M.’s “classroom teacher and staff
from Da R.E.GBVinci Collaborative would be responsible for
implementing [I.M.]’s specialized reading mandate.” (Id. at 34.)
Since applicable state regulations require remedial services
included within an IEP to “be provided by appropriately certified
or licensed individuals”, the SRO determined the IHO’s finding of
an inadequate IEP, based upon the alleged uncertainty of the School
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District to provide Wilson-certified instructors for group
specialized reading instruction, to be untenable:
In finding that the [School D]istrict did not prove that it could have provided the student with instruction provided by “certified instructors in the group specialized reading,” the IHO did not reference any part of the hearing record indicating that the district’s proposed reading instruction would not have been delivered by professionals with the certification required by State regulation to provide specially designed reading instruction (IHO Decision at p. 22; see Tr. pp. 158-59, 173, 179, 196). Rather, review of the hearing record shows that the [School D]istrict could have provided an instructor certified in the Wilson program for the individual reading instruction (Tr. pp. 172-74). Additionally, for the group instruction, the student would have received instruction through a special education teacher, although that teacher would not have been trained in Wilson (Tr. Pp. 178-79). According to State regulation, the proposed providers were properly licensed or certified to provide the student with specially designed reading instruction (see 8 NYCRR 200.6[b][1], [6]; Ganje v. Depew Union Free Sch. Dist., [No. 11-CV-0665,] 2012 WL 5473491, at *15 [W.D.N.Y. Sept. 26, 2012], adopted, 2012 WL 5473485 [W.D.N.Y. Nov. 9, 2012]).
(SRO Decision at 34.) Therefore, the SRO overturned this finding.
(See id.)
In opposing Parent’s contention I.M. was denied a FAPE
because the reading instructors were not Wilson-certified, the
School District contends the IHO’s certified-reading-instructor-
based finding is speculative (see Opp’n at 7); given the SRO’s
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in-depth review of the evidence and legally based rationale for
finding otherwise, the Court agrees. The Second Circuit has
instructed: “Speculation that the school district will not
adequately adhere to the IEP is not an appropriate basis for
unilateral placement.” R.E., 694 F.3d at 195; R.B., 603 F. App’x
at 40 (same). Rather, “[a]n IEP need only be reasonably calculated
to provide likely progress, and after reviewing the record, [this
Court] conclude[s] that the SRO[, unlike the IHO,] had ample
evidence to find that the IEP met this standard.” Id. (citing
Cerra, 427 F.3d at 195). Hence, the Court defers to the SRO’s
determination.
As to Plaintiff’s General Argument: Finally, Parent’s
arguments that the School “District’s reading recommendations were
designed solely to help the [School] District prevail at hearing”
and that since said recommendations “were never intented to be
implemented, [School] District staff could not clearly explain
those recommendations” (Support Memo at 10) are unsupported and
speculative. As such, said arguments are inadequate to challenge
the sufficiency of the Subject IEP or that I.M. was not provided
a FAPE. See, e.g., R.E., 694 F.3d at 195.
In sum, because the SRO carefully considered the
the time the Subject IEP was created, in conjunction with relevant
regulations and guidelines, the SRO’s decision deserves deference.
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See GB, 145 F. Supp. 3d at 249, 250. Accordingly, this Court
defers to the SRO’s sound decision regarding I.M.’s reading
services.
ii. Class Recommendation
Notwithstanding both the IHO and SRO determining I.M.’s
recommended class side of 15:1:1, coupled with supports to address
the Student’s attention and distractibility issues, to be
appropriate, Parent challenges same. (Compare IHO Decision at 21,
and SRO Decision at 27-30, with Support Memo at 13.) She relies
predominantly upon an April 2018 neuropsychological evaluation of
I.M. to support her contention that the recommended 15:1:1 class
was too large for I.M. (See id. at 14 (citing Ex. P-2).) Such
reliance is unavailing; while, perhaps, relevant to provide
background information, it is stale in comparison to the then-
contemporary information before the CSEs. Moreover, said evidence
fails to demonstrate by a preponderance of the evidence that the
proffered Subject IEP was inadequate. Rather, “the hearing record
reflects that the [School D]istrict developed a comprehensive
program to address the [S]tudent’s needs, albeit in a larger 15:
1+ 1 special class [than preferred by Parent], and articulated
appropriate reasons related to the [S]tudent’s needs to recommend
that the [S]tudent receive the support of a 1: 1 aide if she
decided to transition back into the [School D]istrict schools.”
(SRO Decision at 30 (citing IHO Hr’g Tr. at 64-65; Ex. D-2 at 1;
Page 67 of 80
May IEP at 25, 26).) The SRO’s well-reasoned and well-supported
decision, which conforms with that of the IHO as to the recommended
class size, warrants this Court’s deference. See J.S., 104 F.
Supp. 3d at 409 (“Because the IHO and SRO have far more expertise
that this Court, and reached the same conclusion about the
appropriateness of the [subject class] recommendation, deference
is due to the administrative officers.” (citations omitted)).
To the extent Parent proffers Avaras v. Clarkstown in
support of her assertion the District’s 15:1:1 special class is
ill-equipped to address I.M.’s dyslexia, the Court finds it without
persuasion in this instance, since the facts of Avaras are
inapposite to those presented here. (See Support Memo at 14
(citing Avara, 2017 WL 3037402).) In Avaras, the class being
recommended was a 15:1 class setting, which ratio would not have
permitted the level of direct interaction required for the
student’s reading instruction. See Avara, 2017 WL 3037402, at
*19. By comparison, here, the recommended class size for I.M. was
15:1:1. Based upon the record evidence in this case, the Court
finds it appropriate to defer to the SRO’s decision on this issue,
i.e., “there is no reason to depart from the IHO’s finding that
the [School D]istrict’s recommendation of a 15:1+1 special class
with the additional support of a 1:1 aide were sufficient to meet
[I.M.]’s needs and provide her with an educational benefit.” (SRO
Decision (citing IHO Decision at 20-21).)
Page 68 of 80
And, for completeness, as to the recommendation
regarding the aide, the Court finds purely speculative Plaintiff’s
assertion that “[i]t would be restrictive, regressive, and
ostracizing to force I.M. into a program where she would struggle
and require an aide.” (Support Memo at 15.) Speculation does not
suffice in establishing an IEP is inadequate. See, e.g., R.E.,
694 F.3d at 195; see also, e.g., J.S., 104 F. Supp. 3d at 412
(“[T]he validity of the proposed placement cannot be evaluated
using speculative evidence concerning how the IEP might have been
implemented.” (citation omitted)). Moreover, the adequacy of such
an aide “is precisely the kind of educational policy judgment to
which [courts] owe the state deference if it is supported by
sufficient evidence.” K.M. v. N.Y.C. Dep’t of Educ., No.
13-CV-7719, 2015 WL 1442415, at *2 (S.D.N.Y. Mar. 30, 2015) (citing
R.E., 694 F.3d at 192). That is the case here; “this portion of
the SRO’s decision was well-reasoned and . . . is owed deference
as the final decision of the state.” Id.; (see also SRO Decision
at 29-30.)
iii. Appropriate Peers
Plaintiff challenges the composition of the recommended
15:1:1 special class, which the CSE identified for Student’s
placement, and which the IHO found was not appropriate, but which
the SRO found was appropriate. (See Support Memo at 15; see also
IHO Decision at 21; SRO Decision at 34-37.) Once more, Plaintiff
Page 69 of 80
asserts the School District improperly relied upon retrospective
testimony to justify the recommended class placement. (See Support
Memo at 16.) She further contends the School District’s witness,
Evaluator Micali, “testified that a 15:1:1 special class was not
appropriate for I.M. . . . and she raised this with the CSE.” (Id.
(citing IHO Hr’g Tr. at 206-07).) Plaintiff maintains “[t]he IHO
saw through the District witnesses’ vague and generic claims that
I.M. would have appropriate peer matches in the 15:1:1 special
class.” (Id. (citing IHO Decision at 21, and IHO Hr’g Tr. at 270-
71).) She insists the SRO’s contrary decision is erroneous. (See
id. at 16-17.) Not so.
A simple comparison of the IHO’s perfunctory rationale
for his determination the School District’s “witnesses lacked
knowledge of the class profile” and “[a]bsent that information,
the recommendation is flawed and inappropriate” (IHO Decision at
21), with the SRO’s rigorous review of the record and applicable
analysis (see SRO Decision at 35-37) demonstrates the SRO’s
determination on this issue should be sustained. The SRO
meticulously described the record evidence supporting the
recommended 15:1:1 special class:
The principal of the assigned school site testified that she met with the [P]arent when she visited the school and shared with her that she was not able to answer the [P]arent’s questions that pertained to specific students, their learning disability, or academic needs that could identify them, as she did not
Page 70 of 80
believe it was appropriate to share that
rights of the students in the class (Tr. pp. 113, 119-20, 127). However, the principal informed the [P]arent that at the time of her visit there were eight students enrolled in the 15: 1 +1 special class and regarding the functioning level of the students enrolled in the 15: 1 +1 special class, “there could be various disabilities, but the students had similar academic levels” (Tr. pp. 122, 123, 128-29). The principal further testified that she informed the [P]arent what the students would be working on, how the teachers would differentiate instruction based on the [S]tudent’s needs, and that the school used a Regents track curriculum that followed State standards (Tr. pp. 121, 127). The principal described the [S]tudent’s teachers to the [P]arent and informed her that she “was going to make sure that [the Student] had a [certified teaching assistant] . . . [who] was also a certified teacher” to provide the [S]tudent’s 1:1 aide support (Tr. p. 121).
(SRO Decision at 36 (emphasis added).) Hence, in comparison to
the bare-bones explanation provided by the IHO (see IHO Decision
R 21), the record evidence highlighted by the SRO, and regarding
the composition of the recommended class, supports the SRO’s
determination that the IHO erred in his determination on this
issue. Cf., e.g., K.R., 107 F. Supp. 3d at 312 (deferring to SRO’s
decision where the weight of the evidence did not support IHO’s
determinations regarding functional grouping).
Additionally, review of Evaluator Micali’s testimony
demonstrates Plaintiff mischaracterizes same; for example,
although Micali testified she had concerns with the recommended
Page 71 of 80
placement of I.M., she also stated she “understood why the [CSE]
committee was recommending a 15:1:1 in the school district . . .
because [I.M.’s] skills were still so weak.” (IHO Hr’g Tr. at
207.) Micali’s concerns were based upon I.M.’s cognitive ability
and her “savvy” social skills compared to the possible others in
the class, of which she did not know. (See id. (“I worried about
the makeup of the class. And, again, I don’t know what that makeup
of the class was, the 15:1:1.”).) Like Parent, Micali’s concerns
were speculative. 9 As the SRO correctly determined, here “concerns
about the likelihood that the [S]tudent would be appropriately
grouped with other students are speculative given that the
[S]tudent never attended the assigned public school site.” (SRO
Decision at 36 (collecting cases).) Moreover, as the SRO
explained, “[T]he Second Circuit has held that the IDEA does ‘not
expressly require school districts to provide parents with class
profiles.’” (Id. (quoting Cerra, 427 F.3d at 194; collecting
cases).) The SRO elucidated that, because a school district cannot
9 The Court rejects Plaintiff’s reliance on J.S. (See Support Memo at 16.) It is true the J.S. Court found the SRO erred in dismissing certain concerns voiced by the parents as speculative, but which the district court found were not speculative. See J.S. 104 F. Supp. 3d at 412-13. Nonetheless, the J.S. Court rejected the parents’ generalized objections, because they were speculative, explaining that since the student had not attended the recommended school, the parents’ “concerns about how the school might have implemented the IEP [we]re speculative.” Id. at 412. Nor, contrary to Parent’s suggestion, did the J.S. case deal with functional grouping. (Compare Support Memo at 16), with J.S., 104 F. Supp. 3d at 412-13. Page 72 of 80
guarantee the composition of the class a student will attend,
claims regarding grouping are inherently speculative. (See SRO
Decision at 36 (citing M.S. v. N.Y.C. Dep’t of Educ., 2 F. Supp.
3d 311, 332 n.10 (E.D.N.Y. 2013); further citation omitted).) In
any event, the School District was not required to offer I.M. “the
best possible placement; it was required only to provide h[er]
with an appropriate education.” J.S., 104 F. Supp. 3d at 412; see
also, e.g., R.C. ex rel. M.C. v. Byram Hills Sch. Dist., 906 F.
Supp. 2d 256, 273 (S.D.N.Y. 2012) (“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
[School] District provide an ideal learning environment, but
instead only one where the student can progress.”). Having
reviewed the record, IHO Decision, and SRO Decision, the Court
finds there was sufficient evidence to support the SRO’s
determination; further, the SRO Decision as to this matter is
entitled to deference. See, e.g., Cerra, 427 F.3d at 195 (“In
order to avoid impermissibly meddling in state educational
methodology, a district court must examine the record for any
objective evidence indicating whether the child is likely to make
progress or regress under the proposed plan.” (cleaned up)); GB,
145 F. Supp. 3d at 249; see also F.L., 274 F. Supp. 3d at 119
(recognizing that, since “administrative agencies have special
expertise in making judgments concerning student progress,
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deference is particularly important when assessing an IEP’s
substantive adequacy”).
iv. Related Services (OT)
Plaintiff contends the SRO was wrong to find the IHO’s
determination “that the [School D]istrict’s recommendation of
group OT was appropriate and that the [P]arent’s concern that the
[S]tudent could not succeed in a group setting was ‘misplaced.’”
(SRO Decision at 24; see also Support Memo at 17.) She argues
“[i]ndividual OT was critical for I.M.’s learning in order to
improve her writing and attending” and it would be “impossible”
for I.M. to receive the requisite individual attention in a group
setting. (See id.) Parent contends her daughter’s occupational
therapist testified to that effect. (See id. (citing IHO Hr’g Tr.
at 553, 557, 562, 578).) However, in light of the record evidence,
Parent’s mere disagreement with the recommended OT fails to
establish I.M. was denied a FAPE. See, e.g., F.L., 735 F. App’x
at 40 (instructing a parent’s disagreement with a CSE’s
recommendation does not constitute a denial of a FAPE).
Unlike the IHO’s succinct explanation that the CSE’s
recommendation of group OT services to be appropriate for I.M.
(see IHO Decision at 23), the SRO provided an exhaustive review of
the relevant evidence and gave a methodical rationale for
sustaining the IHO’s determination. (See SRO Decision at 24-25.)
The SRO’s decision is well-worthy of deference. See M.H., 685
Page 74 of 80
F.3d at 244. Indeed, the SRO thoroughly recounted the testimony
of I.M.’s occupational therapist at VSS, as well as underscored
said therapist did not correct information in the School District’s
February 2021 OT evaluation report (hereafter, the “School OT
Report”) indicating I.M. received both weekly individual and group
OT sessions, and did recognize the final decision regarding
delivery of OT services was at the discretion of the CSE. (See
id. at 25.) At bottom, the SRO found nothing in the School OT
Report indicated I.M.’s OT needs “could only be met during
individual sessions”; instead, “the evidence in the hearing record
indicated that the [S]tudent was very social and needed to work on
improving attending and independent work completion, needs which
could be addressed in a small group setting.” Plaintiff has failed
to show this is not the case; nor does the Court find it to be so.
Therefore, the Court defers to the SRO’s decision.
v. APE
Plaintiff’s challenge of the Student’s IEP based upon
the inclusion of APE in the Student’s proposed 2021-2022 class
schedule is disingenuous. First, the Parent’s IDEA Complaint did
not challenge any recommendation regarding APE. (See SRO Decision
at 13 (citing Ex. P-1).) As such, it was beyond the scope of the
impartial hearing and, thus, beyond the scope of this Court’s
review. See R.E., 694 F.3d at 187-88. --- ---- And, as the SRO explained
in detail, the “open door” exception is inapplicable in this
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instance. (See SRO Decision at 14 (stating, inter alia, “hearing
record indicates that no [School D]istrict witnesses testified
about the [APE] issue[;] it arose during the [P]arent’s case in
chief, and the [School D]istrict did not open the door to the
[Parent’s challenge”).) Since the APE issue was beyond the scope
of the hearing, the SRO reversed that finding. (See id. (citing
B.P., 841 F. Supp. 2d at 611 (explaining “scope of the inquiry of
the IHO, and therefore the SRO . . . , is limited to matters either
raised in the . . . impartial hearing request or agreed to by [the
opposing party]”)).)
Second, the SRO noted, even if the APE issue had been
properly raised, the IHO’s determination on same would require
reversal. (See SRO Decision at note 7.) Quite simply, the APE
recommendation was not even included in the May 2021 IEP, but was
mistakenly included in I.M.’s proposed class schedule. (See id.)
The IHO acknowledged the apparent error; “nonetheless he found
this resulted in a denial of a FAPE.” (Id. (citing IHO Decision
at 21-22).) As such, “the IHO’s finding on this issue was an
improper conclusion based on speculation that the [School
D]istrict would not have adhered to the May 2021 IEP.” (Id.
(collecting cases).) Having reviewed the record, this Court
agrees; the IHO’s APE determination is untenable.
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vi. Goals Development
The IHO provided a summary of what transpired in
developing I.M.’s goals for the 2021-2022 school year. (See IHO
Decision at 22-23.) He highlighted the CSE chairperson read and
adjusted each of the goals and that VSS staff provided feedback
regarding the proposed goals. (See id.) He also stated there was
testimony, inter alia, “that some of the VSS points of
disagreements [regarding I.M.’s having mastered certain goals]
were vocalized by the VSS meeting participants among themselves
while they remotely participated and were not shared with the CSE
at that time.” (Id. at 23.) Thus, while the IHO found both the
VSS and School District witnesses credible, he “reconcile[d] the
testimony in favor of the [School D]istrict” since the goals were
in accordance with the then-known information before the CSE.
(Id.)
Highlighting Parent’s failure to identify the alleged
Mastered Goals and Parent’s improper citation of a single page
from the IHO Hearing transcript, which referred to the Disputed
Goals purportedly mastered by I.M. (see supra at 24; SRO Decision
at 22, and note 12 10), the SRO painstakingly summarized the relevant
10 The SRO also noted Parent improperly raised other alleged inappropriate goals for I.M. in a memorandum of law and explained such “incorporation by reference is specifically prohibited by the [IDEA] practice regulations.” (SRO Decision at 22 n.12 (citing 8 N.Y.C.R.R. § 279.8[b]).) Page 77 of 80
testimony regarding the proposed goals for I.M., focusing on
several motor skills goals, which goals were numbered in the 20s.
(See id. at 23.) Similar to the IHO, the SRO determined it was
“unclear from the occupational therapist’s testimony when the
[S]tudent mastered the May 2021 IEP annual goals numbered 22, 23,
and 24, and there is no indication in the hearing record that the
occupational therapist objected to these goals at the time of the
May 2021 CSE meeting.” (Id. at 24.) Recognizing a CSE is to
design annual goals which are achievable within the timeframe an
IEP is in effect, the SRO determined:
in this instance even if the [S]tudent had mastered some of the annual goals included on the May 2021 IEP, the inclusion of those annual goals does not rise to the level of denying the [S]tudent a FAPE, as the goals that are being complained of are limited to addressing the [S]tudent’s motor skills, there are additional appropriate goals that also address motor skills, and an IEP does not need to identify annual goals as the vehicle for addressing each and every need in order to conclude that the IEP offered the student a FAPE.
(Id.) Therefore, he found “no basis in the hearing record to
disturb the IHO’s finding that the [S]tudent’s annual goals were
appropriate.” (Id.) The Court concurs. “Since the SRO’s decision
and reasoning is supported by the record, h[is] decision in this
regard deserves deference.” GB, 145 F. Supp. 3d at 251.
Plaintiff’s argument regarding the development of I.M.’s
goals fails to persuade the Court otherwise. (See Support Memo at
Page 78 of 80
22.) Without identifying them, Parent simply claims the proposed
goals were either already mastered or too advanced. (See id.)
She also asserts the School District failed to sustain its burden
of proving its proposed goals were appropriate (see id.); but,
Parent’s position is not meaningfully developed and, in any event,
belied by the record, as meticulously recounted by the SRO. “[T]he
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.” GB, 145 F. Supp. 3d at
249 (quoting Grim, 346 F.3d at 382)). This Court does so here.
2. Further Consideration of the Burlington/Carter Test
Based upon the foregoing, the SRO correctly held that [I.M]’s IEP[] w[as] both procedurally and substantively adequate. As the [School] District provided a FAPE for [I.M.] during the 20[21]–[22] . . . school year[], the Court need not consider the second and third prongs of the Burlington/Carter test. Therefore, Plaintiff[’s] motion for summary judgment is denied . . . .
F.L., 274 F. Supp. 3d at 125; aff’d, 735 F. App’x at 41 (“Because
we defer to the SRO’s decision on prong one of the
Burlington/Carter test, we do not need to address the remaining
two prongs.”).
[Remainder of page intentionally left blank.]
Page 79 of 80
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s
Summary Judgment Motion (ECF No. 81) is DENIED; the SRO Decision
is affirmed, and Plaintiff’s Complaint is dismissed. Judgment
shall enter in favor of Defendant. Once Judgment has entered, the
Clerk of Court is directed to CLOSE this case.
SO ORDERED.
/s/ JOANNA SEYBERT JOANNA SEYBERT, U.S.D.J
Dated: March 28, 2025 Central Islip, New York
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