15‐4076
A.M. v. N.Y.C. Dep’t of Educ.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________
August Term, 2016
(Argued: November 16, 2016 Decided: January 10, 2017)
Docket No. 15‐4076
_____________
A.M., individually and on behalf of E.H., a child with a
disability,
Plaintiff‐Appellant,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION,
Defendant‐Appellee.*
______________
* The Clerk of Court is directed to amend the official caption to
conform with the above.
Before:
KEARSE, WESLEY, and DRONEY, Circuit Judges.
______________
Appeal from an order of the United States District Court
for the Southern District of New York (Oetken, J.), entered on
December 7, 2015, granting judgment for Defendant‐Appellee
New York City Department of Education (“DOE”) and denying
Plaintiff‐Appellant A.M., on behalf of herself and her disabled,
autistic son, E.H., relief under the Individuals with Disabilities
Education Act, 20 U.S.C. §§ 1400 et seq. In denying A.M. relief,
the District Court concluded that E.H. was afforded a free
appropriate public education (“FAPE”) by the DOE for the 2012–
2013 school year. We disagree and hold that the DOE failed to
offer E.H. a FAPE because the substance of the individualized
education program formulated for E.H. was legally inadequate.
Accordingly, we VACATE the judgment of the District Court
and REMAND for further proceedings.
______________
JASON HALE STERNE, Cuddy Law Firm, P.C.,
Auburn, NY, for Plaintiff‐Appellant.
ANDREW A. FEINSTEIN, Andrew A. Feinstein, LLC,
Mystic, CT, for Amicus Curiae Council of Parent
Attorneys and Advocates, in support of Plaintiff‐
Appellant.
AARON M. BLOOM, Assistant Corporation Counsel
(Richard Dearing and Devin Slack, on the brief), for
Zachary W. Carter, Corporation Counsel,
New York, NY, for Defendant‐Appellee.
2
______________
WESLEY, Circuit Judge:
Before the court is an action brought under the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
§§ 1400 et seq., by Plaintiff‐Appellant A.M., on behalf of herself
and her autistic son, E.H., against Defendant‐Appellee the New
York City Department of Education (“DOE”). In May 2012, the
DOE convened a meeting of the local Committee on Special
Education (“CSE”) for the purpose of formulating an
individualized education program (“IEP”) for E.H. for the 2012–
2013 school year. Believing the program to be inadequate for her
son, A.M. continued E.H.’s enrollment at a private special
education school. Subsequently, A.M. filed a due process
complaint against the DOE, seeking tuition reimbursement and
claiming procedural and substantive violations of the IDEA that
deprived E.H. of a free appropriate public education (“FAPE”)
for the 2012–2013 academic year.
Following a three‐day hearing, an impartial hearing
officer (“IHO”) denied A.M. that relief, and A.M. appealed that
decision to a state review officer (“SRO”), who affirmed.
Thereafter, A.M. brought suit in the United States District Court
for the Southern District of New York (Oetken, J.), which
affirmed the order of the SRO. A.M. v. N.Y.C. Dep’t of Educ., No.
14‐CV‐9224 (JPO), 2015 WL 8180751 (S.D.N.Y. Dec. 7, 2015).
A.M. appealed, contending principally that the IEP formulated
for E.H. violated the IDEA and deprived him of a FAPE. For the
reasons set forth below, we VACATE the District Court’s
judgment and REMAND for further proceedings.
3
BACKGROUND
I. LEGAL FRAMEWORK
“The IDEA requires New York [S]tate to ‘provide
disabled children with a [FAPE].’” M.W. ex rel. S.W. v. N.Y.C.
Dep’t of Educ., 725 F.3d 131, 135 (2d Cir. 2013) (quoting R.E. v.
N.Y.C. Dep’t of Educ., 694 F.3d 167, 174–75 (2d Cir. 2012)). In
accordance with the statute, the DOE, through a CSE,1 “must
produce, in writing, an [IEP] that ‘describes the specially
designed instruction and services that will enable the child to
meet’ stated educational objectives and is reasonably calculated
to give educational benefits to the child.” Id. (quoting R.E., 694
F.3d at 175) (citing 20 U.S.C. § 1414(d)).
Where, as here, a parent believes that the program
developed for his or her child for the upcoming school year
would deprive the child of a FAPE, the parent may file a due
process complaint with the DOE seeking review of “any matter
relating to the identification, evaluation, or educational
placement of the child, or the provision of a [FAPE] to such
child.” 20 U.S.C. § 1415(b)(6)(A). The filing of a due process
complaint “triggers an administrative procedure by which the
board of education appoints an [IHO] who conducts a formal
hearing and fact‐finding. The decision of an IHO may be
appealed to [an SRO], and an SRO’s decision may be challenged
by filing a civil action in state or federal court.” M.O. v. N.Y.C.
1 “In New York, the state has assigned responsibility for developing
IEPs to local [CSEs]. CSEs are comprised of members appointed by the
local school district’s board of education, and must include the
student’s parent(s), a regular or special education teacher, a school
board representative, a parent representative, and others.” R.E., 694
F.3d at 175 (citation omitted) (citing N.Y. Educ. Law § 4402(1)(b)(1)(a)).
4
Depʹt of Educ., 793 F.3d 236, 239 (2d Cir. 2015) (per curiam)
(citations omitted) (quoting Hardison v. Bd. of Educ. of the Oneonta
City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014)) (citing, inter alia,
20 U.S.C. §§ 1415(g), (i)(2)(A); N.Y. Educ. Law §§ 4404(1)–(3)).
II. STATEMENT OF FACTS
A. The Student ‐ E.H.
In May 2012, at the time the CSE convened, E.H. was a
six‐year‐old boy diagnosed with autism. E.H. suffers from global
developmental delays, significantly impaired communication
and social functioning, and substantial language impairments.
He also exhibits physical stereotypy (e.g., “[t]apping on surfaces
or part of the body”) and vocal stereotypy (i.e., “palilalia,” which
is characterized by “[n]on contextual vocalizations or
vocalizations emitted in a high pitched tone”). Suppl. App.
873–74.
Before E.H. turned five years of age, he attended a private
preschool, where he was placed in a special education class with
a student‐teacher‐paraprofessional ratio of 6:1:1. Thereafter, once
E.H. transitioned to school age, he attended a public community
school, where he was placed in a 12:1:1 special education
classroom. In 2011, E.H. began attending Manhattan Children’s
Center (“MCC”), a private special education school, after A.M.
determined that the IEP produced by the DOE for the 2011–2012
school year denied E.H. a FAPE. At MCC, E.H. received
schooling in a classroom with six students and six teachers (i.e., a
student‐teacher ratio of 1:1), and received, among other things,
applied behavioral analysis (“ABA”) therapy, “which is an
intensive one‐on‐one therapy that ‘involves breaking down
activities into discrete tasks and rewarding a child’s
accomplishments.’” R.E., 694 F.3d at 176 (quoting Cty. Sch. Bd. v.
Z.P. ex rel. R.P., 399 F.3d 298, 301 (4th Cir. 2005)).
5
In 2011, A.M. filed a due process complaint against the
DOE seeking tuition reimbursement for her unilateral placement
of E.H. at MCC and recovery of “make up sessions” of physical
therapy and instruction time missed during the summer of 2011,
for which no educational program was offered to E.H. Suppl.
App. 555. An IHO found in A.M.’s favor, concluding that it
“c[ould] discern no consistent effort in administering the
education of [E.H.],” thereby depriving E.H. of a FAPE. Suppl.
App. 559. In addition, the IHO determined that the special
education program at MCC in which A.M. unilaterally placed
E.H. was appropriately tailored to “me[e]t [E.H.’s] special
education needs,” Suppl. App. 560, and that A.M. was entitled to
the requested relief, including tuition reimbursement. That
decision was uncontested by the parties.
B. E.H.’s May 2012 Individualized Education
Program
In May 2012, a CSE team convened for its annual meeting
to develop an IEP for E.H. for the 2012–2013 academic year. The
CSE team was composed of the following members: (1) Nessan
O’Sullivan, the School District representative and a DOE school
psychologist; (2) Judy Sommers Schneid, a DOE special
education teacher; (3) E.H.’s mother, A.M.; (4) parent member
Marie Wise; (5) Samantha Solow, an assistant educational
coordinator at MCC; (6) Marisa Savard, one of E.H.’s lead
teachers at MCC; (7) Carrie Friedman, E.H.’s occupational
therapist at MCC; and (8) Amy Hunt, E.H.’s speech‐language
pathologist at MCC.
Prior to the CSE meeting, neither O’Sullivan nor Schneid
met with E.H., nor did the DOE conduct any evaluation of E.H.
on its own, aside from a psycho‐educational report from March
2010 conducted as part of a mandatory review some two years
before the CSE convened to formulate E.H.’s IEP for the 2012–
6
2013 school year. Rather, the evaluative materials present at the
meeting were produced largely by MCC educators and medical
professionals who had evaluated or treated E.H. Based on the
recommendations of the DOE representatives, who relied on the
evaluative materials present at the CSE meeting prepared by
others, and over the objections of A.M. and MCC staff, the IEP
recommended a twelve‐month placement in a public special
education program with a student‐teacher‐paraprofessional ratio
of 6:1:1. Moreover, despite A.M.’s and MCC staff’s urging that
the DOE incorporate ABA therapy into the IEP, the IEP was
silent as to the use of any particular methodology for treating
A.M.’s educational needs. The IEP did, however, recommend
that A.M. receive a number of related services: (1) three weekly,
thirty‐minute sessions of individual speech‐language therapy;
(2) one weekly, thirty‐minute session of group speech‐language
therapy; (3) two weekly, thirty‐minute sessions of individual
physical therapy; (4) two weekly, thirty‐minute sessions of
individual occupational therapy; and (5) one weekly, thirty‐
minute session of group occupational therapy. The IEP also
recommended that E.H. be equipped with a hand‐held tablet
computer with specialized software and “voice output in order
to increase his independence and social interactions and to serve
as a model for language.” Suppl. App. 867, 904.
Because the CSE team concluded that E.H.’s behaviors
seriously interfered with instruction, the IEP required the
development of a behavioral intervention plan (“BIP”), which
was incorporated into the IEP. The BIP, which “is generally used
to ‘develop[] . . . strategies to deal with . . . problem
behavior(s),’” L.O. v. N.Y.C. Dep’t of Educ., 822 F.3d 95, 104 (2d
Cir. 2016) (alterations in original) (quoting R.E., 694 F.3d at 190),
identified E.H.’s physical and vocal stereotypy and noted that it
sought to achieve a “[s]ignificant decrease in target behaviors”
7
through “[t]ime sampling and partial interval recording,” Suppl.
App. 873. Although the BIP was based on a functional behavior
assessment (“FBA”), which was developed and incorporated
into the IEP, the DOE did not conduct an FBA of E.H. An FBA is
“an assessment designed to ‘identif[y] . . . the problem behavior,
. . . defin[e] . . . the behavior in concrete terms, . . . identif[y] . . .
the contextual factors that contribute to the behavior (including
cognitive and affective factors) and . . . formulat[e] . . . a
hypothesis regarding the general conditions under which a
behavior usually occurs.’” L.O., 822 F.3d at 104 (alterations in
original) (quoting N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(r)).
In this case, the FBA was “based on . . . the draft [FBA]
submitted by [MCC]” to the CSE. Suppl. App. 216. Further,
E.H.’s IEP did not provide for parental counseling or training
services, nor did it include any transitional support services for
E.H. to change schools and programs.
C. Administrative Review
Upon receipt of a final notice of recommended placement,
A.M. advised the DOE that she disagreed with E.H.’s
recommended placement and that E.H. would continue his
education at MCC for the 2012–2013 academic year. Thereafter,
A.M. filed a due process complaint, claiming that the DOE had
failed to provide E.H. with a FAPE for the 2012–2013 school
year, and she consequently sought private school tuition
reimbursement at MCC. As relevant here, A.M. alleged four
separate deficiencies in the IEP developed for E.H.: (1) the DOE
failed to conduct an FBA and failed to develop an appropriate
BIP; (2) the IEP failed to provide parent counseling and training
as a related service; (3) the IEP failed to offer transition services;
and (4) the IEP failed to provide a placement in a 1:1 classroom
that “implement[ed] an [ABA] or substantially similar
methodology.” Suppl. App. 571–73.
8
1. Impartial Hearing Officer’s Decision
Following a three‐day hearing,2 the IHO denied A.M.’s
reimbursement request. The IHO rejected A.M.’s contention that
the FBA and BIP developed for E.H. deprived him of a FAPE.
Although the FBA for E.H. that was contained in the IEP was
based entirely on the FBA prepared by MCC, the IHO
determined that this did not result in a FAPE deprivation
because “[t]he FBA prepared by the CSE t[ook] the information
from the FBA prepared by MCC and use[d] it appropriately.”
Suppl. App. 37. The IHO observed that the FBA appropriately
listed the target behaviors it sought to eradicate, identified their
root causes, and developed adequate strategies to address those
problem behaviors.
The IHO also concluded that, although no services were
included in E.H.’s IEP to assist with his transition from MCC to
the proposed public school placement, the DOE did not deprive
E.H. of a FAPE. The IHO relied on hearing testimony that E.H.
generally did not struggle with transitioning between
classrooms in the past, and also pointed to testimony from
O’Sullivan, that the DOE “felt that the services that we[re]
recommended would enable [E.H.] to make the transition from
where he presently was to a public school setting.” Suppl. App.
168.
2 A.M. testified and offered testimony from four members of MCC’s
staff: (1) assistant educational coordinator Solow; (2) speech‐language
pathologist Adina Haimes; (3) occupational therapist Friedman; and
(4) lead teacher Nicole Herz. The DOE offered testimony from
O’Sullivan, the DOE school psychologist who also served as the DOE
representative on the CSE that formulated the terms of E.H.’s IEP.
9
The IHO additionally considered the IEP’s
recommendation of a 6:1:1 classroom and found it to be
appropriate. The IHO was “persuaded that . . . O’Sullivan’s
observation that [E.H.] need[ed] the interaction with peers
would argue for a classroom setting where there [was] an
abundance of interaction, rather than primarily one to one
instruction.” Suppl. App. 36–37. The IHO also noted that E.H.’s
attention had “vastly improved” and that the child was “less in
need of that intervention,” and that, in any event, even if poor
attending skills persisted, this would not demand one‐to‐one
attention, as such skills could be adequately addressed in a 6:1:1
class. Suppl. App. 37.
Finally, the IHO rejected A.M.’s view that E.H. required
all‐day intensive ABA therapy. In rejecting this argument, the
IHO noted that “[t]here [was] no requirement that a particular
methodology be set forth on the IEP or provided to [a] [s]tudent,
or that the preference as to [the] methodology of any particular
evaluator . . . or [p]arent[] be adopted.” Suppl. App. 36. It thus
concluded “that the methodology should be left to the discretion
of the professionals who w[ould] be working with [E.H.].”
Suppl. App. 35.
Although the IHO concluded that the IEP complied with
the IDEA, the IHO did not address A.M.’s contention that the
omission of parental training and counseling services in the IEP
deprived E.H. of a FAPE.
2. State Review Officer’s Decision
A.M. appealed the IHO’s decision to an SRO, who
affirmed. As to the lack of parent counseling and training
services in the IEP, the SRO faulted the IHO for “not addressing
[its] absence” in the IEP, but nonetheless determined that,
although the IEP should have provided for such services, its
10
omission did not result in a FAPE deprivation. Suppl. App. 14
n.3. It based this conclusion on IHO hearing testimony that “‘it
was explained to the parent at the outset’ that parent counseling
and training was one of the ‘defining [features]’ of the
recommended [6:1:1] special class placement.” Suppl. App. 14
n.3 (quoting Suppl. App. 167–68). Further, the SRO reasoned that
“the presence or absence of parent training and counseling in an
IEP does not necessarily have a direct effect on the substantive
adequacy of the plan.” Suppl. App. 14 n.3 (citing R.E., 694 F.3d at
191).
Next, the SRO rejected A.M.’s claim that E.H. required a
1:1 classroom with ABA therapy in order to progress and was
denied a FAPE when he was assigned to a 6:1:1 classroom that
lacked an all‐inclusive ABA program. As to the adequacy of the
class size itself, the SRO credited O’Sullivan’s testimony that
“the [6:1:1] special class . . . was an ‘intens[ive] behavioral
intervention,’” in that it was a rigorous full‐time program in a
small special education classroom that employed “a variety of
methodologies” to treat each student’s educational needs. Suppl.
App. 15 (quoting Suppl. App. 231). The SRO also found
persuasive O’Sullivan’s testimony that “he believed [E.H.] could
make meaningful progress had the May 2012 IEP been
implemented as written because [E.H.’s] special education
services needed to be delivered within some social context to
allow for modeling and shared instruction.” Suppl. App. 15–16.
Moreover, the SRO found A.M.’s methodology argument
equally unavailing because, in the SRO’s view, a CSE is
generally “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.” Suppl. App.
15. The SRO reasoned that, “although the May 2012 CSE did not
recommend ABA [therapy services], it also did not disapprove
11
of the methodology or say ABA should not be used with the
student.” Suppl. App. 15. The SRO also observed that
O’Sullivan, “[t]he [DOE] school psychologist[,] indicated [that]
the May 2012 CSE recommendations incorporated behavioral
methodologies, and the [6:1:1] special class recommendation was
not contrary to ABA.” Suppl. App. 15. Thus, the SRO concluded
that the absence of ABA therapy in E.H.’s IEP did not deprive
the child of a FAPE.
The SRO did not, however, address A.M.’s challenge to
the adequacy of E.H.’s FBA and BIP or the lack of transitional
services contained in the IEP.
D. District Court Review
Thereafter, A.M. brought suit in the District Court,
claiming procedural and substantive violations under the IDEA,
resulting in the deprivation of a FAPE for E.H. The parties each
separately moved for summary judgment, and the District Court
granted the DOE’s motion, affirming the SRO’s decision and
denying A.M.’s claim for tuition reimbursement. A.M., 2015 WL
8180751, at *6.
As to the procedural adequacy of the IEP, the District
Court considered and denied A.M.’s challenge to the adequacy
of the FBA and BIP contained in the IEP, because the FBA and
BIP incorporated into the IEP were “[c]onsistent with the MCC
FBA/BIP,” and “adequately identifie[d] the problem behavior
and prescribe[d] ways to manage it.” Id. at *4 (quoting R.E., 694
F.3d at 190). The District Court rejected A.M.’s claim that,
because the CSE had inadequately reproduced the MCC draft on
which the IEP’s FBA and BIP were based, E.H. was deprived of a
FAPE. The District Court reasoned that, “so long as the [DOE’s]
own FBA/BIP is adequate, it does not matter that the [DOE’s]
draft omitted MCC’s charts, citations to academic support, or
12
other information.” Id. The District Court thus concluded that
the FBA and BIP were suitable to E.H.’s needs. Id.
The District Court also concluded that the failure to
provide parent counseling and training in the IEP, although a
violation of New York law, was not fatal to the adequacy of the
IEP. The District Court observed that “it was explained to the
parent at the outset that one of the defining features of this
program was that it did have a parent training component to it
as well, as part of the program,” id. (quoting Suppl. App.
167–68), and thus A.M. was unable to demonstrate in what
manner either she or her son were injured as a result of the
omission of parental counseling and training services in the IEP.
In addition, the District Court rejected A.M.’s contention
that the lack of a formal transition plan for E.H. into his new
public school program deprived E.H. of a FAPE, because “A.M.
ha[d] ‘not identified any legal requirement that an IEP contain a
transition plan, nor ha[d] [A.M.] articulated why the absence of
such a plan was so significant as to deny [him]’ a [FAPE].” Id. at
*3 (third alteration in original) (quoting R.E., 694 F.3d at 195).
The District Court then turned to the IEP’s substantive
adequacy and rejected A.M.’s claim that E.H. required a 1:1
classroom that guaranteed ABA therapy all day, because “[t]hat
dispute is a debate over educational methodology, based on the
record before the SRO,” in which case “courts typically defer to
the decision of the SRO.” Id. at *5 (citing M.H. v. N.Y.C. Dep’t of
Educ., 685 F.3d 217, 244 (2d Cir. 2012)). The District Court noted
that this Court had held in R.E. that, “where ‘almost all of the
reports’ before an IHO find that a student needs ABA therapy,
and the remaining evidence emphasizes that the student needs
‘a high level of support,’ the [DOE] may not endorse a 6:1:1
classroom with ‘no guarantee of ABA therapy or any meaningful
1:1 support.’” Id. (quoting R.E., 694 F.3d at 193–94). The District
13
Court distinguished E.H.’s case from R.E., however, because this
was not, in its view, “a case . . . in which the [DOE] ignored the
‘clear consensus of [the student’s] evaluators.’” Id. (quoting R.E.,
694 F.3d at 181). Rather, according to the District Court, although
“the SRO and IHO deviated from the consensus of the parent’s
evidence, including the representatives from MCC,” id., “their
conclusion was consistent with the views of the evaluator on the
CSE,” id., who believed that “a 6:1:1 setting would better
facilitate [E.H.’s] goals,” id., particularly “developing reciprocity,
developing an awareness of peers, and maneuvering himself
within the context of other children within a classroom setting,”
id. (quoting Suppl. App. 16). Thus, according to the District
Court, “the CSE may come to an independent conclusion of the
student’s needs from the content of the evaluation reports; the
CSE need not simply accept the conclusion of those reports
absent an in‐person evaluation with the student.” Id. (emphasis
in original).
As to the IEP’s silence on the provision of ABA therapy,
the District Court observed that, although “[t]he 6:1:1 setting did
not expressly include ABA, . . . it also did not exclude ABA.” Id.
The District Court credited O’Sullivan’s IHO hearing testimony
that the DOE deliberately formulated the IEP in this manner
because it “‘didn’t want to tie the hands of the different
disciplines that would be working with’ E.H. by requiring a
specific methodology for part or all of the day.” Id. (quoting
Suppl. App. 168). The District Court also agreed with the IHO’s
determination that MCC might have preferred a different
methodology, but this preference “d[id] not have to guide the
decisions of the CSE.” Id. (quoting Suppl. App. 36).
14
DISCUSSION
“We undergo a circumscribed de novo review of a district
court’s grant of summary judgment in the IDEA context because
the ‘responsibility for determining whether a challenged IEP will
provide a child with [a FAPE] rests in the first instance with
administrative hearing and review officers.’” M.W., 725 F.3d at
138 (alteration in original) (quoting M.H., 685 F.3d at 240). Our
review “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
(alterations in original) (quoting Lenn v. Portland Sch. Comm., 998
F.2d 1083, 1086–87 (1st Cir. 1993)). “Accordingly, our de novo
review only seeks to independently verify that the
administrative record supports the district court’s determination
that a student’s IEP was adequate.” M.W., 725 F.3d at 138. This
verification requires that we “engage in an independent review
of the administrative record and make a determination based on
a ‘preponderance of the evidence.’” Gagliardo v. Arlington Cent.
Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007) (quoting Mrs. B. v.
Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997)).
Importantly, our review of the administrative record is
“restrained by our lack of specialized knowledge and
educational expertise,” which demands that we “defer to the
administrative decision [particularly where] the state officer’s
review has been thorough and careful.” M.W., 725 F.3d at 138–39
(alteration in original) (internal quotation marks omitted)
(quoting R.E., 694 F.3d at 184). Indeed, the Supreme Court has
made clear that we are precluded from “substitut[ing] [our] own
notions of sound educational policy for those of the school
authorities which [we] review.” Bd. of Educ. of Hendrick Hudson
Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). “The level of
deference granted to the administrative decision, however, is not
15
without limitation. To merit deference, ‘[t]he SRO’s or IHO’s
factual findings must be reasoned and supported by the
record.’” L.O., 822 F.3d at 109 (internal quotation marks omitted)
(quoting M.H., 685 F.3d at 241). Further, although “courts must
defer to the reasoned conclusions of the SRO as the final state
administrative determination,” should we “f[in]d the SRO’s
conclusions unpersuasive even after appropriate deference is
paid, [we may] consider the IHO’s analysis, which is also
informed by greater educational expertise than that of judges,
rather than . . . rely exclusively on [our] own less informed
educational judgment.” M.H., 685 F.3d at 246.
I. ISSUES FOR JUDICIAL REVIEW
In order to determine whether parents of a disabled child
are entitled to reimbursement of expenses incurred at a private
school in an IDEA challenge to a state‐proposed IEP, we are
guided by the three‐step Burlington/Carter test: “(1) the DOE
must establish that the student’s IEP actually provided a FAPE;
should the DOE fail to meet that burden, the parents are entitled
to reimbursement if (2) they establish that their unilateral
placement was appropriate and (3) the equities favor them.”
M.W., 725 F.3d at 135 (footnote omitted); see also Florence Cty. Sch.
Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Town of
Burlington v. Dep’t of Educ., 471 U.S. 359 (1985). Here, the parties’
dispute focuses entirely on the adequacy of E.H.’s May 2012 IEP.
In reviewing the adequacy of the IEP, we “make a two‐part
inquiry that is, first, procedural, and second, substantive,” to
determine whether an IEP complies with the IDEA, R.E., 694
F.3d at 189–90, the burden of proof resting with the DOE, see
N.Y. Educ. Law § 4404(1)(c).
16
A. Procedural Compliance
At step one, we “examine whether there were procedural
violations of the IDEA, namely, ‘whether the state has complied
with the procedures set forth in the IDEA.’” R.E., 694 F.3d at 190
(quoting Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d
Cir. 2005)). “The initial procedural inquiry is no mere formality,”
Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir.
1998), as “[i]t acts as ‘a safeguard against arbitrary or erroneous
decisionmaking,’” M.H., 685 F.3d at 245 (internal quotation
marks omitted) (quoting Evans v. Bd. of Educ. of Rhinebeck Cent.
Sch. Dist., 930 F. Supp. 83, 93 (S.D.N.Y. 1996) (B.D. Parker, J.)). A
procedural violation will entitle a parent to tuition
reimbursement “if [it] ‘impeded the childʹs right to a [FAPE],’
‘significantly impeded the parents’ opportunity to participate in
the decisionmaking process,’ or ‘caused a deprivation of
educational benefits.’” R.E., 694 F.3d at 190 (quoting 20 U.S.C.
§ 1415(f)(3)(E)(ii); A.C. ex rel. M.C. v. Bd. of Educ. of the Chappaqua
Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009)). “That is, parents
must articulate how a procedural violation resulted in the IEP’s
substantive inadequacy or affected the decision‐making
process.” M.W., 725 F.3d at 139. “[M]ultiple procedural
violations[,] [however,] may cumulatively result in the denial of
a FAPE even if the violations considered individually do not.”
L.O., 822 F.3d at 109 (alterations in original) (quoting M.W., 725
F.3d at 139).
Here, A.M. alleges three procedural errors in the
formulation of E.H.’s IEP, which, in her view, independently and
cumulatively deprived E.H. of a FAPE.
17
1. Functional Behavior Assessment and
Behavioral Intervention Plan
New York regulations require the DOE to conduct an FBA
“for a student whose behavior impedes his or her learning or
that of others.” N.Y. Comp. Codes R. & Regs. tit. 8,
§ 200.4(b)(1)(v). An FBA must include “the identification of the
problem behavior, the definition of the behavior in concrete
terms, the identification of the contextual factors that contribute
to the behavior[,] . . . and the formulation of a hypothesis
regarding the general conditions under which a behavior usually
occurs and probable consequences that serve to maintain it.” Id.
§ 200.1(r). Its purpose “is to ensure that the IEP’s drafters have
sufficient information about the student’s behaviors to craft a
plan that will appropriately address those behaviors.” R.E., 694
F.3d at 190.
In addition, “where, as here, ‘a student’s behavior
impedes his learning, a BIP must be developed with strategies to
deal with the problem behavior(s).’” L.O., 822 F.3d at 111
(quoting R.E., 694 F.3d at 190) (citing N.Y. Comp. Codes R. &
Regs. tit. 8, § 200.22(b)). New York regulation requires that a BIP
be “based on the results of a[n] [FBA] and, at a minimum,
include[] a description of the problem behavior, global and
specific hypotheses as to why the problem behavior occurs and
intervention strategies that include positive behavioral supports
and services to address the behavior.” N.Y. Comp. Codes R. &
Regs. tit. 8, § 200.1(mmm).
Where the DOE fails to conduct an FBA of its own, we
“must take particular care to ensure that the IEP adequately
addresses the child’s problem behaviors,” R.E., 694 F.3d at 190,
but the IEP will be rendered legally deficient only where it fails
to “adequately identif[y] a student’s behavioral impediments
and [fails to] implement[] strategies to address that behavior,”
18
M.W., 725 F.3d at 140. Where the IEP is found to be deficient in
this regard, we have held this to rise to the level of “a serious
procedural violation because it may prevent the CSE from
obtaining necessary information about the student’s behaviors,
leading to their being addressed in the IEP inadequately or not
at all.” R.E., 694 F.3d at 190. “[S]uch a failure seriously impairs
substantive review of the IEP because courts cannot determine
exactly what information an FBA would have yielded and
whether that information would be consistent with the student’s
IEP.” Id.
Here, the IEP indicated that E.H.’s behavior seriously
interfered with his instruction and therefore required the
development of a BIP. As noted, a BIP must be based on the
results of an FBA. See N.Y. Comp. Codes R. & Regs. tit. 8,
§ 200.1(mmm). Rather than conduct his own evaluation of E.H.,
however, O’Sullivan, the School District representative and DOE
psychologist present at the May 2012 CSE meeting, relied on an
October 2011 FBA and BIP performed by MCC and submitted to
the DOE prior to the CSE meeting in order to develop E.H.’s
FBA and BIP for the IEP.
A.M. contends that the DOE’s failure to conduct an FBA
of its own and develop a BIP from its own assessment of E.H.
constitutes a serious procedural violation of the IDEA, which
resulted in a FAPE deprivation. She argues further that the BIP
and FBA incorporated into E.H.’s IEP lacked certain information
contained in the draft versions formulated by MCC. For
instance, according to A.M., the “BIP contains no intervention
strategies that include positive behavioral supports and services
to address the behavior,” and the FBA lacks any “information
about the use of functional communication training[,] intensive
tact instruction[,] and matched stimuli.” Pl.’s Br. 27 (internal
quotation marks omitted). Thus, for A.M., the FBA and BIP
19
incorporated into E.H.’s IEP were inadequate and were thus not
reasonably calculated to afford E.H. an opportunity to obtain
educational benefits, resulting in a denial of a FAPE.
We note at the outset that A.M.’s argument is not without
some persuasive force. O’Sullivan described the FBA included in
the IEP as more of “a summary of [MCC’s] behavior assessment
with the consensus of the meeting at the time,” and stated that
“maybe 10–15 minutes” was spent by the CSE creating this
summary and developing the BIP at the meeting. Suppl. App.
220–21. Indeed, the barebones nature of the BIP and FBA
included in the IEP makes this apparent, particularly when
compared with the BIP and FBA produced by MCC. This, of
course, is not surprising, given that O’Sullivan never actually
met or evaluated E.H. until after the formulation of his IEP, a
violation of New York law. See N.Y. Comp. Codes R. & Regs. tit.
8, § 200.4(b)(1)(v) (“[A]n individual evaluation of the referred
student shall be initiated by a [CSE] . . . [and] shall be completed
within 60 days of receipt of consent . . . . [T]he initial evaluation
must include at least . . . a[n] [FBA] for a student whose behavior
impedes his or her learning or that of others, as necessary to
ascertain the physical, mental, behavioral and emotional factors
which contribute to the suspected disabilities.”).
As to the BIP incorporated into E.H.’s IEP, we have no
difficulty in concluding that it is legally inadequate. Although it
was based on the results of MCC’s FBA and includes a
description of the problem behavior, it does not provide certain
“minimum requirements,” L.O., 822 F.3d at 123, such as “global
and specific hypotheses as to why the problem behavior occurs
and intervention strategies that include positive behavioral
supports and services to address the behavior,” N.Y. Comp.
Codes R. & Regs. tit. 8, § 200.1(mmm). Indeed, we recently
expressed concern in situations such as this where the IEP
20
contains a BIP that fails to “attempt[] to identify the root causes
of . . . behavior deficiencies,” because it deprives the CSE of the
ability to adequately “provide effective treatment for these
behaviors,” “thereby casting doubt on the adequacy of its
provisions for treating them.” L.O., 822 F.3d at 113, 123.
Although deficient, we have also stressed that the
inadequacy of an FBA or BIP will not necessarily “render an IEP
legally inadequate under the IDEA so long as the IEP adequately
identifies a student’s behavioral impediments and implements
strategies to address that behavior.” M.W., 725 F.3d at 140. Here,
the FBA, which was also incorporated into E.H.’s IEP, included
the required information that was lacking in the BIP. The FBA
hypothesizes that E.H.’s palilalia and physical stereotypy are
caused by “[l]ack of active engagement” and that E.H. reacts in
such a manner because of “[s]ensory stimulation,” “task
avoidance,” and “[a]ccess to preferred attention or toy.” Suppl.
App. 874. The FBA further lists several strategies previously
attempted, such as the use of “[r]edirection and refocus,”
“[r]eplac[ing] verbal stereotyp[y] with communication skills,”
and “[e]xpand[ing] [E.H.’s] repertoire of reinforcer and play
skills,” and suggests continuing the use of such strategies
moving forward. Suppl. App. 874. In addition, the FBA lists
positive behavioral techniques that have proven to be successful
in the past, including providing E.H. with “[a]ccess to certain
toys[,] action figures[,] computer, dinosaur related toys and
activities.” Suppl. App. 874. Last, the FBA also identifies the end
goal, seeking to “decrease [E.H.’s] verbal and motor
stereotyp[y],” and notes that it would measure E.H’s progress
and the success of these strategies through “[p]artial interval
recording” and “time sampling.” Suppl. App. 874. These
descriptions “adequately identif[y] the problem behavior[s] and
21
prescribe[] ways to manage [them],” in accordance with New
York law. R.E., 694 F.3d at 190.
Although there are undeniable differences between the
FBA and BIP included in E.H.’s IEP and the far more detailed
and thorough FBA and BIP created by MCC, E.H.’s IEP
incorporated the overall material substance of the MCC FBA and
BIP, albeit in a more limited form. That the versions ultimately
prepared and incorporated into E.H.’s IEP were less
comprehensive than those developed by E.H.’s current private
school education provider does not mean that E.H. was deprived
of a FAPE. Indeed, aside from pointing to certain differences
between MCC’s and the DOE’s FBAs and BIPs (such as the lack
of any mention of E.H.’s history of crying, which has been
successfully treated, at times, through redirection and immediate
return to activity), A.M. does not describe how such omissions
rise to the level of a FAPE deprivation; that is, in what manner
E.H.’s ability to meaningfully progress would be delayed as a
result of the deficiencies identified in the IEP’s FBA and BIP.
Accordingly, although the BIP developed for E.H. is
deficient in a number of important respects, when viewed
together with the FBA, the IEP nonetheless “adequately
identifies [E.H.’s] behavioral impediments and implements
strategies to address th[ose] behavior[s].” M.W., 725 F.3d at 140.
Thus, E.H. was not deprived of a FAPE as a result of the FBA
and BIP that were included in his IEP.
2. Parental Counseling and Training
Next, A.M. contends that the DOE’s failure to provide for
parental counseling and training services in E.H.’s IEP
constituted a violation of the procedures of the IDEA, thereby
contributing to a FAPE denial. “For educational programs for
students with autism, New York requires that an IEP include a
22
‘[p]rovision . . . for parent counseling and training . . . for the
purpose of enabling parents to perform appropriate follow‐up
intervention activities at home.’” L.O., 822 F.3d at 122 (alterations
in original) (quoting N.Y. Comp. Codes R. & Regs. tit. 8,
§ 200.13(d)). The inclusion of such services in the IEP is intended
to “assist[] parents in understanding the special needs of their
child; provid[e] parents with information about child
development; and help[] parents to acquire the necessary skills
that will allow them to support the implementation of their
child’s [IEP].” N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(kk).
Although a violation of New York’s regulations, “[w]e have
repeatedly held . . . that parental counseling and training
omissions are ‘less serious’ procedural violations ‘because the
presence or absence of a parent‐counseling provision does not
necessarily have a direct effect on the substantive adequacy of
the [IEP].’” L.O., 822 F.3d at 122 (second alteration in original)
(quoting M.W., 725 F.3d at 141). This is so “because school
districts are required . . . to provide parent counseling,” and thus
“remain accountable for their failure to do so no matter the
contents of the IEP.” Id. (alteration in original) (quoting R.E., 694
F.3d at 191).
Here, the SRO found that the DOE erred by failing to
provide for parent counseling and training in the IEP, in
violation of New York law. It appears that this may not be an
anomaly. If the DOE’s failure to comply with § 200.13(d) in
formulating the terms of IEPs for students with autism has
become a common practice, such a development would be cause
for concern. See, e.g., L.O., 822 F.3d at 122; J.C. v. N.Y.C. Dep’t of
Educ., 643 F. App’x 31, 32 (2d Cir. 2016) (summary order); R.B. v.
N.Y.C. Dep’t of Educ., 603 F. Appʹx 36, 39 (2d Cir. 2015) (summary
order); C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 79–80
(2d Cir. 2014); F.L. ex rel. F.L. v. N.Y.C. Dep’t of Educ., 553 F.
23
App’x 2, 7 (2d Cir. 2014) (summary order); M.W., 725 F.3d at 142;
K.L. ex rel. M.L. v. N.Y.C. Dep’t of Educ., 530 F. App’x 81, 87 (2d
Cir. 2013) (summary order); P.K. ex rel. S.K. v. N.Y.C. Dep’t of
Educ., (Region 4), 526 F. App’x 135, 138 (2d Cir. 2013) (summary
order); R.E., 694 F.3d at 193, 195. The SRO nonetheless
concluded, in accordance with this Court’s caselaw, that this
omission did not result in a FAPE deprivation. See R.E., 694 F.3d
at 191, 192–93. Importantly, the SRO also observed that, at the
CSE meeting, “‘it was explained to the parent at the outset’ that
parent counseling and training was one of the ‘defining
[features]’ of the recommended [6:1:1] special class placement.”
Suppl. App. 14 n.3 (quoting Suppl. App. 167–68).
We defer to that analysis. While its absence from the IEP
constitutes a violation of the procedures of the IDEA, evidence
that E.H.’s program actually offered parental counseling and
training services and that A.M. was made aware of its presence
at the CSE meeting makes clear that the omission of parental
counseling and training in the IEP itself was nothing more than
an immaterial procedural violation. See L.O., 822 F.3d at 123.
3. Transitional Support Services
A.M. next argues that E.H. required support services to
assist in his transition from his private school classroom at MCC
to the less restrictive public school placement in his IEP. A.M.
contends that the inclusion of such transitional services in the
IEP was compelled by N.Y. Comp. Codes R. & Regs. tit. 8,
§ 200.13(a)(6). She maintains that, “[a]s a student with autism,
[E.H.’s] resistance to environmental change or change in daily
routines . . . require[d] transitional support,” and that the DOE’s
“failure to address [his] transitional needs [was] likely to lead to
regression in his behaviors, and thus in his educational
performance.” Pl.’s Br. 25. Thus, in A.M.’s view, because the IEP
was devoid of transitional support services for E.H., as required
24
by New York law, E.H. was deprived of a FAPE. The DOE, on
the other hand, insists that there is “no[] . . . ‘legal requirement
that an IEP contain a transition plan,’” and even if there were,
“A.M. did not ‘articulate[] why the absence of such a plan was so
significant as to deny’ E.H. an appropriate education.” Def.’s Br.
42 (quoting R.E., 694 F.3d at 195).
Although we agree that the absence of a transition plan or
services to assist with E.H.’s transition between classrooms did
not deprive him of a FAPE, there is some confusion here that
bears further explanation. N.Y. Comp. Codes R. & Regs. tit. 8,
§ 200.13(a)(6), provides that,
[i]n those instances where a student [with autism]
has been placed in programs containing students
with other disabilities, or in a regular class
placement, a special education teacher with a
background in teaching students with autism shall
provide transitional support services in order to
assure that the student’s special education needs
are being met.
N.Y. Comp. Codes R. & Regs. tit. 8, § 200.13(a)(6). Although the
IHO made no such finding,3 the District Court concluded that
there was “no[] . . . legal requirement that an IEP contain a
transition plan.” A.M., 2015 WL 8180751, at *3 (quoting R.E., 694
F.3d at 195). While this might be true, the District Court
nonetheless failed to appreciate that there remained a violation
of § 200.13(a)(6). That is, although the IDEA does not require the
inclusion of a formal transition plan in an autistic student’s IEP
3 As noted, the SRO failed to address A.M.’s transition‐plan argument
in its decision.
25
that describes services to assist with the child’s transition into a
public school classroom or less restrictive educational setting,
New York law imposes a separate requirement that, under such
conditions, the IEP describe support services to be provided to
the student’s public special education teacher in the classroom,
which were absent from E.H.’s IEP. See N.Y. Comp. Codes R. &
Regs. tit. 8, § 200.1(ddd) (“Transitional support services means
those temporary services, specified in a student’s [IEP], provided to a
regular or special education teacher to aid in the provision of
appropriate services to a student with a disability transferring to
a regular program or to a program or service in a less restrictive
environment.” (emphases added)); id. § 200.6(c) (“Transitional
support services prescribed in the [IEP] shall be provided for a teacher
upon the recommendation of the [CSE], and shall be specified in
the student’s IEP.” (emphasis added)).
Just as with an omission of parental training and
counseling services in the IEP, which concerns services that are
to be delivered to an individual other than the child itself, the
absence of such services that are expressly required by law to be
included in a child’s IEP constitutes a violation of the procedures
of the IDEA. Similarly, school districts are required by
§ 200.13(a)(6) to “provide transitional support services,” id.
§ 200.13(a)(6), to an autistic student’s special education teacher
“in order to assure that the student’s special education needs are
being met,” id., “no matter the contents of the IEP,” and they
thus “remain accountable for their failure to do so,” permitting a
parent of an aggrieved child to “file a complaint at any time if
they feel the[ir] [child is] not receiving this service.” R.E., 694
F.3d at 191 (citing N.Y. Comp. Codes R. & Regs. tit. 8,
§ 200.13(d)).
Importantly, these regulations contemplate that, where, as
here, “a student with a disability transfer[s] to a regular program
26
or to a program or service in a less restrictive environment,” the
student’s new classroom teacher may require “temporary
services” to ensure that the student’s particular educational
needs are being adequately treated in the new learning
environment. N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(ddd).
This makes sense, as a classroom teacher may not necessarily be
equipped or trained at the outset to treat certain conditions or
behaviors that are unique to the new student joining his or her
classroom. However, as with the inclusion of any other
provision in the IEP, the ultimate beneficiary of its presence, or
the individual harmed by its absence, is the student, whose
likelihood to progress under the proposed program becomes
markedly less certain as terms and conditions imposed by law
are wanting from the IEP.
We note that this view is not in tension with our holding
in R.E., which held only that there was “no[] . . . legal
requirement that an IEP contain a transition plan”; that is, that
there was nothing in the law that required a description in the
IEP of transitional support services to be provided directly to the
student. See R.E., 694 F.3d at 195. We do not purport to suggest
otherwise. Rather, we hold that New York law requires an IEP to
identify temporary transitional support services to be provided
to an autistic student’s new classroom teacher when that student
is transferring from a private school to a public school program
or to a less restrictive classroom setting. See N.Y. Comp. Codes R.
& Regs. tit. 8, § 200.13(a)(6); id. § 200.1(ddd); id. § 200.6(c).
Moreover, in R.E. we rejected an argument concerning the
absence of transitional support services for the student in the IEP
because the parents had failed to “articulate[] why the absence of
such [services in the IEP] was so significant as to deny [the child]
a FAPE.” R.E., 694 F.3d at 195. Here, like there, A.M. has
similarly failed to offer a persuasive reason why the absence of
27
transitional services to be provided to E.H.’s public school
classroom teacher deprived E.H. of a FAPE. Indeed, the IHO
reached the same conclusion, based in part on hearing testimony
from Friedman, E.H.’s occupational therapist at MCC, who
stated that, although E.H. had initially “had a really hard time
with transitions . . . going from the classroom to [occupational
therapy] or between different places,” he had “made really nice
gains in that where he transitions not only from the classroom to
[occupational therapy], but between preferred and non‐
preferred activities without any behavioral overreactions.”
Suppl. App. 404. This evidence suggests that, because E.H. had
made significant progress in his ability to transition between
classroom settings without resulting in any notable problems,
the failure to specify transitional support services in the IEP for
E.H.’s teacher could not have deprived E.H. of a FAPE.
Accordingly, we hold that, although the absence of
transitional support services in the IEP for E.H.’s would‐be
public school classroom teacher was a procedural violation, it
did not deprive E.H. of a FAPE.
4. Cumulative Effect
Although “[w]e have previously held that ‘[m]ultiple
procedural violations may cumulatively result in the denial of a
FAPE even if the violations considered individually do not,’”
L.O., 822 F.3d at 123 (quoting R.E., 694 F.3d at 190), that is not the
case here. Having identified four procedural errors (the failure
on the part of the DOE to conduct an FBA of its own, the
development of an inadequate BIP, the failure to include formal
parent counseling and training services in the IEP, and the
omission of transitional support services in the IEP for E.H.’s
would‐be public school teacher), none of which affected the
substance of E.H.’s program, this is not the rare case where the
violations, when taken together, “impeded the child’s right to a
28
[FAPE] . . . or caused a deprivation of educational benefits.” R.E.,
694 F.3d at 190 (internal quotation marks omitted). Accordingly,
no FAPE denial resulted cumulatively from the procedural
errors committed by the DOE in formulating E.H.’s IEP.
B. Substantive Adequacy
Unlike procedural violations, which ordinarily will not
result in a FAPE denial, “[s]ubstantive inadequacy automatically
entitles the parents to reimbursement.” R.E., 694 F.3d at 190. In
evaluating whether an IEP was substantively adequate, we
assess whether the IEP was “reasonably calculated to enable the
child to receive educational benefits.” Rowley, 458 U.S. at 207.
“[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). Importantly, “[i]n
order to avoid ‘impermissibly meddling in state educational
methodology,’ [we] ‘must examine the record for any objective
evidence indicating whether the child is likely to make progress
or regress under the proposed plan.’” Id. (internal quotation
marks omitted) (quoting Walczak, 142 F.3d at 130).
A.M.’s two substantive challenges are inextricably
intertwined. She argues that (1) the 6:1:1 classroom setting
offered in the IEP and (2) the failure to guarantee any 1:1 ABA
therapy in the IEP went against the consensus of the evaluative
materials present at the CSE meeting, and that the IEP
consequently deprived E.H. of a FAPE. According to A.M., the
record “demonstrates overwhelmingly that [E.H.] . . . require[d]
[ABA]” and “a significant amount of one‐on‐one instruction” in
order to make progress toward his goals. Pl.’s Br. 15. We agree.
29
While attending MCC during the 2011–2012 school year,
E.H. was educated in a 1:1 classroom setting with six students
and six teachers and received intensive 1:1 therapy using the
ABA methodology. The SRO reviewed the evaluative materials
present at the CSE meeting and the IHO hearing record, and
concluded, relying heavily on O’Sullivan’s testimony, that the
IEP was substantively adequate despite the absence of any
provision for 1:1 ABA therapy because, “although the May 2012
CSE did not recommend ABA, it also did not disapprove of the
methodology or say ABA should not be used with the student,”
and that the IEP “incorporated behavioral methodologies . . . not
contrary to ABA.” Suppl. App. 15. The SRO was also persuaded
by O’Sullivan’s opinion that E.H. “could make meaningful
progress had the May 2012 IEP been implemented as written
because [E.H.’s] special education services needed to be
delivered within some social context to allow for modeling and
shared instruction,” which, in O’Sullivan’s view, counseled in
favor of a less restrictive placement than a 1:1 classroom setting.
Suppl. App. 15–16.
The District Court affirmed, concluding that, although
“the SRO and IHO deviated from the consensus of the parent’s
evidence, including the representatives from MCC,” “their
conclusion was consistent with the views of the evaluator on the
CSE,” who believed that “a 6:1:1 setting would better facilitate
[E.H.’s] goals.” A.M., 2015 WL 8180751, at *5. Thus, the District
Court explained that “the CSE may come to an independent
conclusion of the student’s needs from the content of the
evaluation reports; the CSE need not simply accept the
conclusion of those reports absent an in‐person evaluation with
the student.” Id. (emphasis in original).
Although the IDEA does not speak to methodology, see
Assistance to States for the Education of Children With Disabilities
30
and Preschool Grants for Children With Disabilities, 71 Fed. Reg.
46,540, 46,665 (Dep’t of Educ. Aug. 14, 2006), the implementing
regulations define a child’s “[s]pecial education” as “specially
designed instruction . . . to meet the unique needs of a child with
a disability.” 34 C.F.R. § 300.39(a). Rowley teaches that the
substantive adequacy of a child’s IEP turns on whether its
provisions are “reasonably calculated to enable the child to
receive educational benefits.” 458 U.S. at 207. This inquiry
requires courts to determine whether “the content, methodology,
or delivery of instruction” have been narrowly tailored to
“address the unique needs of the child that result from the
child’s disability.” 34 C.F.R. § 300.39(b)(3)(i) (emphases added).
To be sure, in evaluating the substantive adequacy of a
child’s IEP, Rowley directs us to “be careful to avoid imposing
[our] view of preferable educational methods upon the States.”
Rowley, 458 U.S. at 207. Thus, “once a court determines that the
requirements of the [IDEA] have been met, questions of
methodology are for resolution by the States.” Id. at 208. As
noted, however, deference to the states “is not without
limitation.” L.O., 822 F.3d at 109. Our review of a case, such as
this, demands that we “engage in an independent review of the
administrative record and make a determination based on a
‘preponderance of the evidence.’” Gagliardo, 489 F.3d at 112
(quoting Mrs. B., 103 F.3d at 1120).
Our decision regarding R.K., one of the three students
whose IDEA challenges we decided in R.E., exemplifies the
interplay of this complex set of directives. There, the SRO
disagreed with the IHO’s conclusion that “[t]here [was] a
consensus that the student need[ed] an ABA program.” R.E., 694
F.3d at 193. Instead, the SRO “concluded that the evidence only
indicated that R.K. needed a small, structured setting, which [it]
found to be satisfied by a 6:1:1 placement.” Id. The SRO “also
31
found that [the child] did not necessarily need ABA because
some evaluations did not specify a teaching method,” and
credited testimony from R.K.’s would‐be teacher at the proposed
placement that she incorporated 1:1 ABA instruction into the
classroom. Id. The SRO determined that the placement was
appropriate because “the student would have received
individual instruction and that instruction would have been
ABA‐based.” Id. (internal quotation marks omitted).
We reversed and faulted the SRO’s reliance on the would‐
be teacher’s testimony because “R.K.’s parents had no
knowledge or guarantee from the IEP that R.K. would have
received a teacher who conducted daily 1:1 ABA sessions with
each student.” Id. at 193–94. We went on to explain that the
SRO’s conclusion was unsupported by the evidence because
those reports that spoke to the size of the child’s classroom either
recommended 1:1 instruction or “emphasized that R.K. needed a
high level of support.” Id. at 194.
We further observed that, “almost all of the reports found
that R.K. needed continued ABA therapy,” and we explained
that “[t]he fact that some reports did not mention a specific
teaching methodology d[id] not negate the clear consensus that
R.K. required ABA support.” Id. Because “the plan proposed in
[R.K.’s] IEP offered her a 6:1:1 classroom with no dedicated aide
and no guarantee of ABA therapy or any meaningful 1:1
support,” we held that the SRO’s conclusion was unsupported
by a preponderance of the evidence and was thus “flawed,” that
“deference to it [was] not warranted,” and that R.K. was
deprived of a FAPE because “the IEP was not reasonably
calculated to create educational benefit for R.K.” Id.
Thus, R.E. stands for the unremarkable proposition that,
when the reports and evaluative materials present at the CSE
meeting yield a clear consensus, an IEP formulated for the child
32
that fails to provide services consistent with that consensus is
not “reasonably calculated to enable the child to receive
educational benefits,” Rowley, 458 U.S. at 207, and the state’s
determination to the contrary is thus entitled to no deference
because it is unsupported by a preponderance of the evidence.
See C.F., 746 F.3d at 81 (holding that the IEP’s failure to provide a
1:1 classroom resulted in the denial of a FAPE because “the
testimony and reports indicat[ed] that [the child’s] needs
required a 1:1 placement,” thereby rendering “such instruction
. . . a necessary component of any plan ‘reasonably calculated to
enable the child to receive educational benefits’” (quoting R.E.,
694 F.3d at 190)). This remains true whether the issue relates to
the content, methodology, or delivery of instruction in a child’s
IEP.
Although we are mindful that the question of “how best
to educate an autistic child is ‘a difficult question of educational
policy’ that requires deference to the decisions of administrative
experts,” L.O., 822 F.3d at 117 (quoting T.P. ex rel S.P. v.
Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009)
(per curiam)), where, as here, “it appears plain that, contrary to
the findings of the SRO,” the placement was “not adequately
designed to address and improve” the child’s educational needs,
the administrative officer’s analysis is deserving of no deference,
see id. Here, as in R.E., the reports that did address E.H.’s needs
as they related to teaching methodology and classroom size
specifically recommended the continued need for ABA therapy
and 1:1 support in order for E.H. to progress. For example, a
report prepared by the Rusk Institute of Rehabilitation Medicine
based on psychological evaluations it conducted of E.H. on
March 28, April 1, and May 19, 2011 (approximately one year
before the CSE meeting in question), recommended that,
“[r]egardless of the placement, it is imperative that [E.H.] receive
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the maximum ABA instruction to allow for carryover and family
training in order to make appropriate progress and meet IEP
goals.” Suppl. App. 689. The report also recommended that,
“[w]ith regard to behavioral management in general,”
“[i]ntensive behavioral intervention such as Lovaas’ [ABA] . . .
techniques may be particularly useful and will provide a means
of increasing communication, attention, and imitation skills, and
decreasing his rigidity.” Suppl. App. 690. It further explained
that E.H.’s “appropriate behaviors and learning c[ould] be
fostered through the development of imitation skills,” and that
“ABA is able to focus on the development of these skills.” Suppl.
App. 690.
Consistent with this report, following a pediatric
neurology evaluation of E.H., neurologist Jay E. Selman, M.D.
recommended in September 2011 that E.H. be educated using
“ABA at least 20 hours per week.” Suppl. App. 749. Earlier that
spring, neurologist Ram Kairam, M.D. evaluated E.H. and
opined that E.H. “would need ABA therapy at least forty hours a
week to see an improvement.” Suppl. App. 752. Dr. Kairam
noted that when he evaluated E.H. in January 2011, A.M. “was
not totally convinced that [E.H.] should be in a full time ABA
program as it m[ight] be too restrictive for [E.H.] and wanted to
leave [E.H.] in a [g]eneral education school with special
education services,” but he “stress[ed to her] the importance of
ABA therapy for an autistic child.” Suppl. App. 751.
The hearing record reinforces these doctors’
recommendations. MCC assistant educational coordinator Solow
testified that E.H. received primarily one‐on‐one instruction at
MCC because he “ha[d] a hard time learning in a group of
children.” Suppl. App. 313. She attributed this difficulty to E.H.’s
“very poor attending skills.” Suppl. App. 313. She explained that
one‐on‐one learning “allow[ed] for more frequent reinforcement,
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which [E.H.] need[ed].” Suppl. App. 313. In addition, she
testified that E.H.’s educators at MCC “believed that [E.H.]
needed a program with a one‐to‐one setting, a one‐to‐one
classroom, a classroom that uses [ABA], since [they] had seen
that that ha[d] been very effective with him.” Suppl. App. 326.
She also testified that she told O’Sullivan at the CSE meeting that
E.H.’s “needs couldn’t be met in a 6‐1‐1” classroom setting.
Suppl. App. 328.
E.H.’s lead classroom teacher at MCC, Herz, echoed
Solow’s testimony. Herz stated that E.H. “require[d] ABA to
make progress” and that “he need[ed] the consistent one‐to‐one
support and . . . the consistent expectations and constant positive
reinforcement . . . for any and all behaviors.” Suppl. App. 436.
Herz explained that a 1:1 classroom was necessary for E.H.
“because his attention [was] so fleeting that it can become easy
for him to become prompt dependent, so he needs a systematic
fading of prompting.” Suppl. App. 436–37. In other words, in
Herz’s view, E.H. “continue[d] to need one‐to‐one support to
attend consistently to groups” and “he also need[ed] the
behavioral component with the research based tactics to target
his palilalia and physical stereotypy.” Suppl. App. 437.
Importantly, there were no evaluative materials present at
the CSE meeting that suggested otherwise, such as that E.H.
could benefit from the use of some other methodology rather
than 1:1 ABA, or that ABA therapy need not play a crucial role in
E.H.’s educational program in order for him to continue to
progress.4 Nor did the DOE conduct any evaluation(s) of its own
4 A.M.’s hearing testimony before the IHO that E.H. attended a karate
class once each week with other developing children, that he “did not
have many of the symptoms of an autistic child,” was “very smart and
knows a lot,” and that “it’s just his attention span is what we need to
35
address in order for him to learn” because “he learned his letters; he
learned his numbers; he learned his colors,” Suppl. App. 39, does not
alter this conclusion. That is, this testimony, although of course highly
relevant coming from the mother of the child, did not obviate the clear
consensus of E.H.’s evaluators (and their evaluations) that E.H.
required meaningful 1:1 classroom support and ABA therapy in order
to progress.
Further, the IHO’s conclusion, that because E.H. had made
improvements while at MCC, he no longer required such a restrictive
class setting, is unsupported by the record. First, the quoted language
on which the IHO relies is taken out of context. While Solow did
testify that E.H. had “really improved” his attending behavior, Solow
also testified that E.H. still “ha[d] a hard time learning in a group of
children,” that he still had “very poor attending skills,” that E.H.
“needed a program with a one‐to‐one setting, a one‐to‐one classroom,
a classroom that uses [ABA], since [they] had seen that that ha[d] been
very effective with him,” and that E.H.’s “needs couldn’t be met in a 6‐
1‐1” classroom setting. Suppl. App. 313, 319, 326, 328.
Indeed, as Solow testified, the logical inference from the testimony that
E.H. had “made huge gains” and “increased [his] social awareness”
after a single year of learning at MCC would suggest that the more
restrictive academic setting in which he was learning adequately
addressed his needs and should thus be continued; not that the
program should be discontinued and that he should be transitioned to
a less restrictive learning environment that did not necessarily employ
ABA therapy techniques—the very kind in which he was previously
educated before attending MCC and in which he did not enjoy similar
progress or success. Suppl. App. 319, 557. Notably, E.H.’s MCC
educators, even despite his improvements, continued to recommend
for the 2012–2013 academic year that he “continue in his current
placement within a small ABA classroom where he c[ould] receive
one‐to‐one instruction throughout the day in order to maintain and
generalize skills.” Suppl. App. 654, 800.
36
of E.H. to call into question the opinions and recommendations
contained in the evaluative materials. While a private school’s
preferred methodology does not bind the CSE in formulating a
student’s IEP, where, as here, the consensus of the evaluative
materials and “all witnesses familiar with [the child],” C.F., 746
F.3d at 81, specifically recommend the continued need for 1:1
ABA therapy and support for the child to progress, and the DOE
does not point to any evidence sufficient to counter these
opinions and recommendations, the CSE was bound, at a
minimum, to require some level of ABA support in a 1:1
classroom setting in order to establish the adequacy of the IEP.
See id. (“The IEP’s substantive inadequacy, therefore, is rooted in
the testimony and reports indicating that [the child’s] behavioral
needs required a 1:1 placement.”); see also R.E., 694 F.3d at 194.
Thus, the District Court and administrative officers’
reliance on the views of O’Sullivan, which were against the clear
consensus of the substance of the evaluative materials present at
the CSE meeting and the views of E.H.’s evaluators and
educational instructors (i.e., “all witnesses familiar with [E.H.],”
C.F., 746 F.3d at 81), was error, as this resulted in a proposed
program that was not “reasonably calculated to enable [E.H.] to
receive educational benefits,” see Rowley, 458 U.S. at 207. This
conclusion is inescapable, “particularly when combined with
[(1)] the [DOE’s] failure to [conduct] an adequate, individualized
[FBA],” (2) the DOE’s failure to prepare an adequate BIP, (3) “the
lack of any provision for parent counseling and training,” and
(4) the omission of transitional support services in the IEP for
E.H.’s would‐be public school teacher at the IEP’s proposed
placement. C.F., 746 F.3d at 81. Moreover, we note that “the issue
of classroom placement ratio cannot be separated from one of
the procedural violations discussed above, namely the [DOE’s]
failure to [evaluate E.H. and] conduct an appropriate [FBA of its
37
own] or [BIP].” Id. Indeed, we are left to wonder whether the
DOE would have reached the same conclusions and
recommended the same deficient services in the IEP that E.H.’s
evaluators and instructors believed to be inadequate, had the
DOE adequately complied with the IDEA’s procedures in the
first instance. See L.O., 822 F.3d at 113; R.E., 694 F.3d at 190.
Accordingly, we conclude that these significant
deficiencies rendered E.H.’s IEP for the 2012–2013 school year
substantively inadequate, thereby depriving E.H. of a FAPE.
C. Relief
A “substantive violation alone does not entitle [A.M.] to
reimbursement for [E.H.’s] education at [MCC]. [A.M.] must still
satisfy the second and third parts of the Burlington/Carter test, by
showing that [her] alternative placement for [E.H.] at [MCC] was
appropriate and that equitable considerations favor
reimbursement.” T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752
F.3d 145, 167 (2d Cir. 2014). Because the District Court
erroneously concluded that there was no substantive deficiency
in E.H.’s IEP and thus that E.H. was not deprived of a FAPE, the
District Court did not address these remaining issues.
Accordingly, rather than evaluate these questions ourselves
without the benefit of a more fully developed record and
briefing on these issues by either party, we believe the preferred
course is to remand to the District Court to consider these
matters in the first instance. See id. at 170.
CONCLUSION
We have reviewed the parties’ remaining arguments and
find them to be without merit. For the foregoing reasons, the
judgment of the District Court is VACATED and the case is
REMANDED for further proceedings consistent with this
opinion.
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