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R.E., Individually, On Behalf of J.E., M.E v. New York City Department of Education

September 20, 2012

R.E., INDIVIDUALLY, ON BEHALF OF J.E., M.E, INDIVIDUALLY, ON BEHALF OF J.E., PLAINTIFFS-APPELLEES,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, DEFENDANT-APPELLANT. R.K., BY HER PARENTS R.K. AND S.L., PLAINTIFF-APPELLEE,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, DEFENDANT-APPELLANT. E.Z.-L., BY HER PARENTS R.L. AND A.Z., PLAINTIFF-COUNTER-DEFENDANT-APPELLANT,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, DEFENDANT-COUNTER-CLAIMANT-APPELLEE.



The opinion of the court was delivered by: John M. Walker, Jr., Circuit Judge:

11-1266, 11-1474, 11-655 R.E., M.E., et al v. NYC Dep't of Education

Argued: April 24, 2012

Before : WINTER, WALKER, and CABRANES, Circuit Judges.

10 Defendant New York City Department of Education ("the 11 Department") appeals from an order of the United States District 12 Court for the Southern District of New York (Robert W. Sweet, 13 Judge) granting summary judgment to R.E. and M.E. on their claim 14 for tuition reimbursement under the Individuals with Disabilities 15 Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and a separate 16 order of the District Court for the Eastern District of New York 17 (Kiyo A. Matsumoto, Judge) granting summary judgment to R.K. on 18 her claim for tuition reimbursement under the IDEA. Plaintiff- 19 counter-defendant E.Z.-L. appeals from an order of the Southern 20 District of New York (Sidney H. Stein, Judge) denying her claim 21 for tuition reimbursement under the IDEA. These appeals were 22 heard in tandem due to common questions of law. In resolving a 23 central question presented by these appeals, we hold that courts 24 must evaluate the adequacy of an IEP prospectively as of the time 25 of the parents' placement decision and may not consider 26 "retrospective" testimony regarding services not listed in the 27 IEP. However, we reject a rigid "four-corners rule" that would 1 prevent a court from considering evidence explicating the written 2 terms of the IEP.

3 In light of this holding and for further reasons we 4 elaborate, we reach the following conclusions in the three 5 appeals. In R.E., no. 11-1266-cv, we find that the Department 6 offered the student a free and appropriate public education 7 ("FAPE") and REVERSE the decision of the district court. In 8 R.K., no. 11-1474-cv, we find that the Department failed to offer 9 the student a FAPE and AFFIRM the decision of the district court. 10 In E.Z.-L., no. 11-655-cv, we find that the Department offered 11 the student a FAPE and AFFIRM the decision of the district court.

19 These cases require us to resolve several legal issues 20 related to the rights of disabled children under the Individuals 21 with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et 22 seq. In these three cases, parents of autistic children 23 (collectively and in their respective pairs, "the parents") 24 declined school placements offered by the New York City 25 Department of Education ("the Department") and placed their 26 children in private schools. The parents brought due process 27 claims against the Department for tuition reimbursement on the 28 grounds that the Department's public school placement offers for 29 their children were inadequate. In each case, the parents were 30 initially granted relief following a hearing before an impartial 31 hearing officer ("IHO"), but subsequently were denied relief 32 after the IHO's decision was reversed on appeal by the state 1 review officer ("SRO"). In each case, the SRO relied in part on 2 testimony from Department personnel about the educational program 3 the student would have received if he or she had attended public 4 school. The parents challenge the appropriateness of relying on 5 such testimony, which for ease of reference we refer to in 6 shorthand as "retrospective testimony."

In each case, the parents sought to have the SRO's 8 determination reversed by the appropriate United States District 9 Court, and in two of the three cases they succeeded. In R.E., 10 no. 11-1266-cv, the District Court for the Southern District of 11 New York (Robert W. Sweet, Judge) found that the Department 12 failed to provide the student with a free and appropriate public 13 education ("FAPE") and granted summary judgment for the parents.

14 In R.K., no. 11-1474-cv, the District Court for the Eastern 15 District of New York (Kiyo A. Matsumoto, Judge) similarly found 16 that the Department failed to provide the student with a FAPE and 17 granted summary judgment for the parents. In E.Z.-L., no. 11- 18 655-cv, however, the District Court for the Southern District of 19 New York (Sidney H. Stein, Judge) found that the Department had 20 provided the student with a FAPE and granted it summary judgment.

21 Among the legal conclusions we reach, we conclude that the 22 use of retrospective testimony about what would have happened if 23 a student had accepted the Department's proposed placement must 24 be limited to testimony regarding the services described in the 1 student's individualized educational program ("IEP"). Such 2 testimony may not be used to materially alter a deficient written 3 IEP by establishing that the student would have received services 4 beyond those listed in the IEP. In light of this and other legal 5 conclusions, we reverse the decision of the district court in 6 R.E., and we affirm the decisions of the district courts in R.K. 7 and E.Z.-L.

BACKGROUND

I. The Legal Framework

10 Before delving into the facts of these cases, it is useful 11 to understand the legal framework of the IDEA. A state receiving 12 federal funds under the IDEA must provide disabled children with 13 a free and appropriate public education ("FAPE"). Cerra v. 14 Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). To 15 ensure that qualifying children receive a FAPE, a school district 16 must create an individualized education program ("IEP") for each 17 such child. See 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. 18 Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) 19 (describing the IEP as the "centerpiece" of the IDEA system).

20 The IEP is "a written statement that sets out the child's present 21 educational performance, establishes annual and short-term 22 objectives for improvements in that performance, and describes 23 the specially designed instruction and services that will enable 1 the child to meet those objectives." D.D. ex rel. V.D. v. N.Y.C. 2 Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal 3 quotation marks omitted). The IDEA requires that an IEP be 4 "reasonably calculated to enable the child to receive educational 5 benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982).

6 In New York, the state has assigned responsibility for 7 developing IEPs to local Committees on Special Education 8 ("CSEs"). N.Y. Educ. Law § 4402(1)(b)(1); Walczak v. Fla. Union 9 Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). CSEs are 10 comprised of members appointed by the local school district's 11 board of education, and must include the student's parent(s), a 12 regular or special education teacher, a school board 13 representative, a parent representative, and others. N.Y. Educ. 14 Law § 4402(1)(b)(1)(a). The CSE must examine the student's level 15 of achievement and specific needs and determine an appropriate 16 educational program. Gagliardo v. Arlington Cent. Sch. Dist., 17 489 F.3d 105, 107-08 (2d Cir. 2007).

18 If a parent believes that his child's IEP does not comply 19 with the IDEA, the parent may file a "due process complaint" (a 20 type of administrative challenge unrelated to the concept of 21 constitutional due process) with the appropriate state agency. 22 20 U.S.C. § 1415(b)(6). In such cases, the IDEA mandates that 23 states provide "impartial due process hearings" before impartial 24 hearing officers ("IHOs"). Id. § 1415(f). Under New York's 1 administrative system, the parties first pursue their claim in a 2 hearing before an IHO. N.Y. Educ. Law § 4404(1). Either party 3 may then appeal the case to the state review officer ("SRO"), who 4 may affirm or modify the IHO's order. Id. § 4404(2). Either 5 party may then bring a civil action in state or federal court to 6 review the SRO's decision. 20 U.S.C. § 1415(i)(2)(A).

II. Facts

9 Like most IDEA cases, the consolidated appeals before us are 10 fact-intensive. We therefore find it necessary to set forth in 11 some detail the facts of the three cases.

A. R.E., No. 11-1266-cv

1. Background

15 J.E., the son of R.E. and M.E., is an autistic child born in 16 1999. Since September 2002, J.E. has attended the private 17 McCarton School ("McCarton") located in Manhattan. May 2007, 18 R.E. and M.E. rejected the Department's offer of a 6:1:1 (six 19 students, one teacher, one paraprofessional aide) classroom 20 setting in a special public school for the 2007-08 school year. 21 After the Department conceded that the 2007-08 placement had 22 failed to provide a FAPE, the IHO found that the parents were 23 entitled to reimbursement, which conclusion is not challenged in 1 this appeal. J.E. continued at McCarton during the 2007-08 2 school year.

3 At McCarton, J.E. was in a classroom with five other 4 children and a 1:1 student-to-teacher ratio (i.e., each student 5 had his or her own teacher). Each week he received approximately 6 30 hours of applied behavioral analysis ("ABA") therapy, which is 7 an intensive one-on-one therapy that "involves breaking down 8 activities into discrete tasks and rewarding a child's 9 accomplishments." Cnty. Sch. Bd. v. Z.P. ex rel. R.P., 399 F.3d 10 298, 301 (4th Cir. 2005) (internal quotation marks omitted). He 11 also received 1:1 speech and language therapy five times a week 12 in 60-minute sessions, and 1:1 occupational therapy five times a 13 week in 45-minute sessions.

2. The IEP

15 On May 21, 2008, the Department convened a CSE to develop an 16 IEP for the 2008-09 school year. Present at this meeting were 17 R.E., J.E.'s father; Xin Xin Guan, the Department's 18 representative; Jane O'Connor, a special education teacher; 19 Jeanette Betty, a parent representative; Tara Swietek, J.E.'s 20 head teacher at McCarton; Kelly Lynn Landris, a McCarton speech 21 and language pathologist; Nipa Bhandari, a McCarton occupational 22 therapist; and Ivy Feldman, McCarton's director.

23 Because J.E. had never attended public school, the CSE 24 relied primarily on information it received from McCarton. This 9 1 information consisted of an educational progress report, which 2 explained J.E.'s aptitude with communication, cognition, social 3 skills, and adaptive behaviors, and recommended continuation of 4 his current course of 1:1 therapy; a speech and language progress 5 report, which evaluated J.E.'s language abilities and recommended 6 a continued course of five 60-minute sessions per week; and an 7 occupational therapy progress report, which outlined J.E.'s 8 progress and goals and recommended that he continue with his 9 current course of five 45-minute sessions per week and continue 10 to participate in yoga sessions. Additionally, Carol Schaechter, 11 a Department employee, observed J.E. for one day at McCarton. 12 Her report related J.E.'s activities and noted some behavioral 13 problems. It made no recommendations.

The resulting IEP offered J.E. a 12-month placement in a 15 special class in a public school with a staffing ratio of 6:1:1. 16 It also provided J.E. with a dedicated full-time paraprofessional 17 aide. The IEP included speech therapy, occupational therapy, and 18 counseling as related services. The CSE also produced a 19 Functional Behavioral Assessment ("FBA"). The FBA identified six 20 problem behaviors that interfere with J.E.'s learning: 21 scripting/self-talk, eye closing, vocal protests, impulsivity, 22 anxiety, and escape behaviors. The CSE created a corresponding 23 Behavior Intervention Plan ("BIP"), stating that prompting, 24 redirection, positive reinforcement, token economy, and a written 1 schedule were the primary strategies that would be used to 2 address J.E.'s problem behaviors.

3 On June 9, 2008, the Department mailed R.E. and M.E. a final 4 notice of recommendation ("FNR") offering a classroom at P.S. 208 5 that provided the services listed in the IEP. After the parents 6 visited P.S. 208, R.E. sent a letter to the Department rejecting 7 the proposed placement because it lacked sufficient 1:1 8 instruction. R.E. stated that he would be willing to consider 9 other placements, but that if none was offered, J.E. would 10 continue at McCarton. The Department did not offer an 11 alternative placement, and on February 11, 2009, the parents 12 filed a Demand for Due Process seeking tuition reimbursement for 13 the 2008-09 school year.

3. The Due Process Hearing and IHO Determination

15 At the due process hearing, Department psychologist Xin Xin 16 Guan, who had represented the Department at the IEP meeting, 17 testified that the CSE had reviewed all of the McCarton reports. 18 Based on these documents, Guan believed that the IEP was 19 appropriate. Specifically, she believed that the 6:1:1 staffing 20 ratio "could provide [J.E.] with the support[] needed to address 21 his academic and social-emotional needs." June 16, 2009 Hearing 22 Transcript at 278-79, Joint Appendix ("J.A.") 306-07. She 23 testified that she felt a non-public-school placement would be 24 too restrictive, and that it would not hurt J.E. to be exposed to 1 methodologies besides ABA therapy. Guan further explained that 2 she had developed the FBA and BIP based on the McCarton reports.

3 She acknowledged that she lacked specific information about the 4 frequency and duration of J.E.'s problem behaviors. 5 Peter De Nuovo, a special education teacher at P.S. 208, 6 testified that he would have been J.E.'s teacher at P.S. 208. He 7 described his classroom, noting that for the 2008-09 school year, 8 he had five students in his class ranging from nine to twelve 9 years old. He stated that he was supported by a classroom 10 paraprofessional, Kesha Danc, who had about ten years' experience 11 working with autistic children, and that, in addition, three of 12 the students had their own paraprofessionals. De Nuovo described 13 his methods of instruction. He also testified about techniques 14 he would have used to remedy J.E.'s problem behaviors.

15 Two McCarton personnel, Joe Pierce and Ivy Feldman, 16 countered the testimony of Guan and De Nuovo: they testified that 17 J.E. requires 1:1 teacher support and would not be able to learn 18 in a 6:1:1 setting.

19 On August 28, 2009, IHO William J. Wall issued a decision 20 granting the parents' reimbursement request. He noted that the 21 Department representatives had no personal knowledge of J.E., but 22 the McCarton personnel did. He found that the evidence before 23 the CSE did not support the conclusion that J.E. could succeed in 24 a 6:1:1 setting because the only evaluations of J.E. stated that 1 he required 1:1 teacher support. Additionally, he found that the 2 proposed IEP did not include the amount of related services 3 recommended by the McCarton reports. The IHO concluded that 4 "[t]he testimony and the evidence does not support the District's 5 conclusion that a 6:1:1 program would be an educational setting 6 that would be calculated to provide [J.E.] with meaningful 7 educational progress." IHO Decision at 7, J.A. 673. 8 The IHO also faulted the Department for its failure to 9 conduct an adequate FBA and develop an appropriate BIP. Although 10 these documents were prepared, they purportedly failed to meet 11 the criteria laid out in New York State regulations because they 12 did not contain specific information about the frequency, 13 duration, and intensity of the problem behaviors. See N.Y. Comp.

14 Codes R. & Regs. tit. 8, § 200.22(a)(3), (b)(5). The IHO went on 15 to find that the McCarton school was an appropriate placement and 16 that J.E.'s parents were entitled to full tuition reimbursement.

4. The SRO Decision

18 The Department appealed, and on December 14, 2009, SRO Paul 19 F. Kelly issued a lengthy opinion reversing the IHO and denying 20 tuition reimbursement. The SRO concluded that the goals and 21 objectives listed in the IEP were adequately linked to J.E.'s 22 academic level and needs, and that, contrary to the IHO's 23 finding, a 6:1:1 program was appropriate. The SRO noted De 24 Nuovo's testimony that his class actually consisted of five 1 students and five adults (himself, the classroom aide, and the 2 three dedicated paraprofessionals), and emphasized that the 3 instructor and paraprofessionals were adequately trained and had 4 appropriate credentials. Ultimately, the SRO concluded that "the 5 hearing record illustrates that the recommended classroom would 6 have been able to appropriately support the student with 1:1 7 paraprofessional support such that a FAPE was offered." SRO 8 Opinion at 18, J.A. 701. The SRO further found that, although 9 the McCarton reports indicated a need for 1:1 support, they did 10 not suggest that 1:1 paraprofessional support would be 11 insufficient.

12 The SRO went on to state that De Nuovo would have "adapted 13 the New York State curriculum to meet the students' individual 14 needs." Id. He cited specific examples from De Nuovo's 15 testimony as to what strategies he would have used to work with 16 J.E. The SRO also found that the lack of specific data in the 17 FBA was not fatal to the IEP. He noted that the IEP contained 18 strategies to deal with J.E.'s problem behaviors and also 19 referred to specific strategies that De Nuovo would have used in 20 the classroom. Finally, he concluded that the absence of parent 21 training and counseling from the written IEP was acceptable 22 because the record showed that adequate counseling opportunities 23 would have been available at P.S. 208.

5. Proceedings in the District Court

2 The parents then brought this action in the United States 3 District Court for the Southern District of New York seeking a 4 reversal of the SRO's decision. On March 11, 2011, the district 5 court granted summary judgment for the parents and reversed the 6 SRO. R.E. v. N.Y.C. Dep't of Educ., 785 F. Supp. 2d 28 (S.D.N.Y. 7 2011). The district court found that the SRO had based his 8 conclusion on "after-the-fact testimony . . . as to what the 9 teacher, De Nuovo, would have done if J.E. had attended his 10 class." Id. at 41. It adopted the rule that "[t]he sufficiency 11 of the IEP is determined from the content within the four corners 12 of the IEP itself." Id. at 42. The district court found that 13 the SRO had reversed the IHO primarily on the basis of De Nuovo's 14 testimony, and that there was no evidence in the record to 15 support the SRO's conclusion that a 1:1 paraprofessional aide was 16 adequate for J.E. Id. at 42-43. It further concluded that the 17 SRO's decision was not based on educational policy, "particularly 18 given that it relies so heavily on the testimony [of] individuals 19 who lacked personal knowledge of J.E." Id. at 43. The 20 Department appeals.

B. R.K., No. 11-1474-cv

1. Background

3 R.K., the daughter of R.K. and S.L., is an autistic child 4 born in 2004. R.K. was first diagnosed with autism at age two. 5 Prior to mid-2006, she received home-based therapy (occupational 6 and speech therapy as well as ABA) through New York's Early 7 Intervention Program. In July 2006, R.K. began a full-day 8 preschool program at the Interdisciplinary Center for Child 9 Development ("ICCD"). She was placed in an 8:1:3 classroom 10 (eight students, one teacher, three classroom aides), and 11 received separate speech and language therapy and occupational 12 therapy three times each week in 30-minute 1:1 sessions.

13 Starting in September 2007, R.K. received five two-hour 1:1 ABA 14 therapy sessions per week at home through TheraCare.

2. The IEP

16 On April 29, 2008, the CSE met to create an IEP for R.K. for 17 the 2008-09 school year. Present at the meeting were R.K.'s 18 parents; Dr. Wanda Enoch, the Department representative; Tracy 19 Spiro, a special education teacher; Rita Halpern, a general 20 education teacher; a parent representative; and a school social 21 worker. The CSE reviewed extensive reports on R.K., including a 22 pediatric report by neurologist Dr. John T. Wells, which 23 concluded that R.K. was high-functioning autistic and should 24 continue with an ABA-based program; a social history update from 1 ICCD, which concluded that the ABA method was effective for R.K. 2 and that she should remain in a small, structured environment; a 3 psycho-educational evaluation by school psychologist Chris 4 Starvopoulos, finding that R.K. was too unstable to be evaluated 5 but opining that she required a highly structured environment; a 6 TheraCare age-out report concluding that R.K. required continued 7 1:1 special education services, as well as related services; a 8 progress report from ICCD, prepared by Tracey Spiro, concluding 9 that R.K. would benefit from a small and highly structured 10 classroom environment; a speech progress report from the ICCD, 11 again recommending a small, structured learning environment and 12 three 1:1 speech and language sessions per week; an occupational 13 therapy progress report from ICCD recommending three occupational 14 therapy sessions per week; a private evaluation by the McCarton 15 Center, recommending 40 hours of 1:1 ABA therapy per week, 16 "manding" sessions (in which a child is shown reinforcing items 17 she can access upon request), five 60-minute speech and language 18 therapy sessions per week, five 60-minute occupational therapy 19 sessions per week in a sensory gym, and two hours of ABA training 20 per week for the parents; and a checklist prepared after a 21 preschool observation of R.K recommending a 6:1:1 classroom. 22 The resulting IEP offered a 6:1:1 class in a special public 23 school. It offered speech and language therapy and occupational 24 therapy, each three times a week in 30-minute sessions. It 17 1 stated that R.K. demonstrated "self-stimulatory behaviors which 2 interfere[d] with her ability to attend to tasks and to socially 3 interact with others." IEP at 3, J.A. 610. However, it 4 concluded that her behavior "does not seriously interfere with 5 instruction and can be addressed by the . . . special education 6 classroom teacher." IEP at 4, J.A. 612.

On May 7, 2008, before the parents received a final 8 placement offer from the Department, they signed a contract to 9 enroll R.K. in the Brooklyn Autism Center ("BAC"), a private 10 school. The contract allowed the parents to withdraw prior to 11 September 10, 2008, and be reimbursed for their tuition payments 12 minus a $1,000 non-refundable deposit. On June 12, 2008, the 13 Department provided R.K.'s parents with an FNR offering her a 14 classroom at "P075Q at Robert E. Peary Schl" ("P075Q"). On June 15 26, 2008, the parents notified the Department that they rejected 16 the proposed placement and would be sending R.K. to BAC. They 17 primarily cited inadequate 1:1 ABA support in the IEP.

3. The Due Process Hearing and IHO Determination

19 On June 27, 2008, the parents filed a Demand for Due Process 20 seeking reimbursement for their 2008-09 tuition at BAC. IHO Mary 21 Noe held a hearing on January 7 and 8, 2009. At the hearing, 22 Jamie Nicklaus, the Educational Director at BAC, testified that 23 R.K. required 1:1 instruction to make progress. Leonilda Perez, 24 who would have been R.K.'s teacher at P075Q, testified about her 1 classroom practices. She stated that she used a method called 2 Treatment and Education of Autistic and Communication-Related 3 Handicapped Children ("TEACCH") with some elements of ABA. The 4 TEACCH method differs from ABA therapy in that it places greater 5 emphasis on visual skills, independent work, and group 6 instruction. See Z.P., 399 F.3d at 302. Perez testified that 7 she conducted 1:1 ABA sessions, including manding, with each 8 student. Perez further stated that, based on the information in 9 R.K.'s IEP, she might have had to create a BIP for R.K. 10 Dr. Enoch, a school psychologist and the Department's 11 representative at the CSE, testified that a 1:1 setting would be 12 too restrictive for R.K. and that it would be better for her to 13 interact with a small group. She stated that no formal FBA or 14 BIP was necessary because R.K.'s preschool teacher said she was 15 "no behavior problem." January 7, 2009 Hearing Transcript at 16 144-45, J.A. 82-83. Desiree Sandoval, the parent coordinator at 17 P075Q, testified that the school would have provided various 18 counseling and training opportunities for the parents at their 19 request.

20 On February 25, 2009, the IHO issued a decision awarding 21 tuition reimbursement to R.K.'s parents. Based on the record, 22 the IHO found that there was "no one unanimous theory as to 23 whether this student needs 1:1 or just a highly structured 24 environment. There is a consensus that the student needs an ABA 1 program, speech and language and occupational therapy." IHO 2 Opinion at 5, J.A. 677. The IHO found that because the IEP's 3 recommended program was a 6:1:1 ...


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