Filed: May 20, 2016
Latest Update: Mar. 02, 2020
Summary: 15-1019 L.O. ex rel. K.T. v. N.Y.C. Dep’t of Educ. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _ August Term, 2015 (Argued: March 10, 2016 Decided: May 20, 2016) Docket No. 15-1019 _ L.O., individually and on behalf of K.T., a child with a disability, Plaintiff-Appellant, –v.– NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellee. _ Before: LEVAL, POOLER, AND WESLEY, Circuit Judges. _ Appeal from an order of the United States District Court for the Southern District of New York (
Summary: 15-1019 L.O. ex rel. K.T. v. N.Y.C. Dep’t of Educ. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _ August Term, 2015 (Argued: March 10, 2016 Decided: May 20, 2016) Docket No. 15-1019 _ L.O., individually and on behalf of K.T., a child with a disability, Plaintiff-Appellant, –v.– NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellee. _ Before: LEVAL, POOLER, AND WESLEY, Circuit Judges. _ Appeal from an order of the United States District Court for the Southern District of New York (G..
More
15‐1019
L.O. ex rel. K.T. v. N.Y.C. Dep’t of Educ.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________
August Term, 2015
(Argued: March 10, 2016 Decided: May 20, 2016)
Docket No. 15‐1019
____________
L.O., individually and on behalf of K.T., a child with a
disability,
Plaintiff‐Appellant,
–v.–
NEW YORK CITY DEPARTMENT OF EDUCATION,
Defendant‐Appellee.
______________
Before:
LEVAL, POOLER, AND WESLEY, Circuit Judges.
______________
Appeal from an order of the United States District Court
for the Southern District of New York (Gardephe, J.), entered on
March 23, 2015, granting judgment for Defendant‐Appellee New
York City Department of Education (“DOE”) and denying
Plaintiff‐Appellant L.O., on behalf of herself and her disabled
son, K.T., relief under the Individuals with Disabilities
Education Act, 20 U.S.C. §§ 1400 et seq. In denying L.O. relief, the
District Court concluded that K.T. was afforded a free
appropriate public education (“FAPE”) by the DOE for the 2009–
2010, 2010–2011, and 2011–2012 school years. We disagree and
hold that the DOE failed to offer K.T. a FAPE for each school
year. Accordingly, we REVERSE the decision of the District
Court and REMAND for further proceedings.
PHILIP B. ABRAMOWITZ, Williamsville, NY (Jason Hale
Sterne, Cuddy Law Firm, P.C., Auburn, NY, on the brief), 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.
AMANDA SUE NICHOLS, Assistant Corporation
Counsel (Richard Dearing, Assistant Corporation Counsel, on the
brief), for Zachary W. Carter, Corporation Counsel, New York,
NY, for Defendant‐Appellee.
_____________
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 L.O., on behalf of herself
2
and her son, K.T., now a twenty‐year‐old autistic child,1 against
Defendant‐Appellee the New York City Department of
Education (“DOE”). This appeal concerns L.O.’s challenge to the
adequacy of three individualized education programs (“IEP”),
which were characterized by a pattern of procedural violations
of the IDEA committed by the DOE, and whether these errors
deprived K.T. of a free appropriate public education (“FAPE”)
for a period of three consecutive years.
In December 2009, the DOE convened a local Committee
on Special Education (“CSE”) meeting for the purpose of
developing an IEP for K.T. for the 2010 academic year. K.T.
enrolled in the IEP’s prescribed placement and continued to
attend as provided for by two subsequent IEPs in December
2010 and March 2011, until he began refusing to attend school in
November 2011.2 Thereafter, L.O. filed a due process complaint
against the DOE, claiming procedural and substantive violations
1 K.T. will celebrate his twenty‐first birthday on October 23, 2016.
2 Although L.O. claims that K.T.’s school refusal behavior began as
early as January 2010, she provides no evidence other than her own
testimony to support this claim. Because Ms. Quinones (K.T.’s special
education teacher), Assistant Principal Rivas, and Peter Doran (the
Medicaid Service Coordinator) all testified before the IHO that K.T.’s
refusal to attend school did not commence until the fall of 2011, we
cannot say that the District Court erred in determining that the
preponderance of the evidence established that this interfering
behavior did not manifest until after the formulation of the March 2011
IEP. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir.
2007) (“[T]he district court must engage in an independent review of
the administrative record and make a determination based on a
‘preponderance of the evidence.’” (quoting Mrs. B. v. Milford Bd. of
Educ., 103 F.3d 1114, 1120 (2d Cir. 1997))).
3
of the IDEA, and that K.T. had been deprived of a FAPE for the
2009–2010, 2010–2011, and 2011–2012 school years. Specifically,
L.O. sought, among other things, the completion of further
evaluations,3 program modifications, compensatory services,
and attorney’s fees and costs.
Following a five‐day hearing, an impartial hearing officer
(“IHO”) denied L.O. that relief. L.O. appealed to a state review
officer (“SRO”) who affirmed that decision. Thereafter, L.O.
brought suit in the United States District Court for the Southern
District of New York (Gardephe, J.), which affirmed the order of
the SRO. See L.O. v. N.Y.C. Dep’t of Educ., 94 F. Supp. 3d 530, 537
(S.D.N.Y. 2015). L.O. appealed, contending primarily that the
three IEPs formulated for K.T. violated the IDEA and deprived
him of a FAPE. For the reasons set forth below, we REVERSE.
BACKGROUND
I. LEGAL FRAMEWORK
The IDEA requires “[a] state receiving federal funds
under the IDEA [to] provide disabled children with a [FAPE].”
R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 174–75 (2d Cir. 2012).
School districts, through a CSE,4 are responsible for formulating
3 In an interim order, the IHO directed the DOE to perform the
requested evaluations.
4 “In New York, the state has assigned responsibility for developing
IEPs to local [CSEs].” R.E., 694 F.3d at 175. “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.” Id. (citing N.Y. Educ. Law
§ 4402(1)(b)(1)(a)).
4
a written IEP for every qualifying child. Id. at 175; see also 20
U.S.C. § 1414(d). The IEP “sets out the child’s present
educational performance, establishes annual and short‐term
objectives for improvements in that performance, and describes
the specially designed instruction and services that will enable
the child to meet those objectives.” R.E., 694 F.3d at 175 (internal
quotation marks omitted). To comply with the provisions of the
IDEA, the IEP must “be ‘reasonably calculated to enable the
child to receive educational benefits.’” Id. (quoting Bd. of Educ. of
Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207
(1982)).
If a parent believes that his or her child is being denied a
FAPE, the parent may file a “due process complaint” challenging
“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). Doing so “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 a[n] [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. Depʹt of Educ., 793 F.3d
236, 239 (2d Cir. 2015) (per curiam) (citations and internal
quotation marks omitted) (citing 20 U.S.C. § 1415(g), (i)(2)(A);
N.Y. Educ. Law § 4404(1)–(3)).
II. STATEMENT OF FACTS
A. K.T.
K.T. is an autistic child born in October 1995 who suffers
from obsessive compulsion disorder, mild mental retardation,
5
mood disorder, asthma, and pica.5 Since he was first diagnosed
with autism at the age of four, K.T. has attended public special
education programs in a 6:1:1 (i.e., six students, one teacher, one
paraprofessional aide) special classroom setting with the support
of related services including speech‐language, occupational,
counseling, and physical therapies. In 2009, K.T. began attending
PS 811X, a public special education school located in the Bronx,
New York. In accordance with his IEP formulated in December
2008, K.T. was placed in a 6:1:1 special class setting where he
continued to receive the same support services as in prior years.
B. K.T.’s December 2009 Individualized Education
Program
On December 2, 2009, a CSE team convened for its annual
meeting to develop an IEP for K.T. for December 14, 2009 to
December 14, 2010 (i.e., the 2009–2010 school year).6 The IEP
described K.T. as a fourteen‐year‐old “partially verbal autistic
young man” who understood “one‐step commands,” and
“communicate[d] with others by pointing to what he want[ed] or
need[ed].” Pl.’s Ex. 6 at 1, 3. The IEP further observed that K.T.’s
writing ability was limited to “copying letters, at times his letter
5 As described by the District Court, “pica” is “‘compulsive eating of
nonnutritive substances, such as ice . . . , dirt . . . , gravel, flaking paint
or plaster, clay, hair . . . , or laundry starch.’” L.O., 94 F. Supp. 3d at 537
n.1 (quoting Dorland’s Illustrated Medical Dictionary 1466 (31st ed.
2007)). Here, K.T.’s pica is exhibited “by putting staples in his mouth,
which he finds comforting. He does not eat them, but will sometimes
swallow them by accident.” Suppl. App. 26.
6 Present at this meeting were (1) L.O., (2) a DOE representative, (3) a
special education teacher, (4) a physical therapist, (5) an occupational
therapist, (6) a speech therapist, (7) a related services counselor, and
(8) a Medicaid Service Coordinator.
6
overlap,” and that he “c[ould] write numbers 1–10.” Pl.’s Ex. 6 at
3. It also noted that he suffered from frequent and sudden mood
and personality changes, restlessness, and that he would become
“verbally and physically aggressive, many times for no apparent
reason,” and also “engage[d] in self‐abusive behaviors such as
punching himself in the head, scratching himself, and eating
staples.” Pl.’s Ex. 6 at 4.
The IEP recommended placement in a 6:1:1 “[s]pecial
class in a specialized school with related services” for a twelve‐
month school year. Pl.’s Ex. 6 at 1. The CSE further observed,
however, that K.T. “benefit[ted] from a small [and] highly
structured class setting” and “forms of positive reinforcement,”
and that K.T.’s “[b]ehavior seriously interfere[d] with instruction
and require[d] additional adult support.” Pl.’s Ex. 6 at 3, 4.
Accordingly, the IEP recommended that K.T. participate in an
“Alternative Assessment” program due to the “[s]everity of [his]
deficits in cognitive, communication, and social development.”
Pl.’s Ex. 6 at 12. The CSE also recommended that K.T. continue to
receive a number of related services, including speech‐language
services twice per week for thirty minutes in a group of three, as
well as physical and occupational therapy, but discontinued
K.T.’s counseling services from the prior IEP. The December
2009 IEP further set forth nine annual goals and twenty‐four
short‐term objectives for K.T. during the 2009–2010 school year.
The IEP also provided a plan for K.T. to transition to adult
living.
Moreover, based on the CSE’s conclusion that K.T.’s
behaviors seriously interfered with instruction, the IEP required
the development of a behavioral intervention plan (“BIP”),
which was incorporated into the IEP. A BIP is generally used to
“develop[] . . . strategies to deal with . . . problem behavior(s).”
R.E., 694 F.3d at 190 (citing N.Y. Comp. Codes R. & Regs. tit. 8,
7
§ 200.22(b)). The BIP identified K.T.’s inability to pay attention
and concentrate, and noted that he displayed “poor anger
management” and various self‐abusive behaviors. Pl.’s Ex. 6 at
16. To manage these behaviors, the BIP suggested “[p]rovid[ing]
constant positive reinforcement,” through the support from a
classroom paraprofessional, using tangible rewards and
privileges, and using discipline to punish K.T. for exhibiting
poor behavior. Pl.’s Ex. 6 at 16. The BIP did not, however,
attempt to identify the root causes of K.T.’s problem behaviors.
Nor did the CSE request or develop a functional behavior
assessment (“FBA”), 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.” N.Y. Comp. Codes R. &
Regs. tit. 8, § 200.1(r). K.T. continued to attend his 6:1:1 public
school placement throughout the 2009–2010 school year at PS
811X.
C. K.T.’s December 2010 Individualized Education
Program
On December 20, 2010, the CSE reconvened to formulate a
new IEP for K.T. for January 11, 2011 to January 11, 2012 (i.e., the
2010–2011 school year).7 The CSE determined that K.T.’s services
should remain unchanged from the prior year and that K.T.
should continue with his alternate assessment curriculum. The
Present at this meeting were (1) L.O., (2) a DOE representative, (3)
7
K.T.’s special education teacher, Myrna Quinones, (4) a speech
pathologist, and (5) K.T.’s Medicaid Service Coordinator.
8
December 2010 IEP provided new annual goals and short‐term
objectives, as well as a transition plan and a BIP nearly identical
to that developed for K.T. for the prior school year. K.T.
continued to attend his public school placement under the new
IEP at PS 811X.
D. K.T.’s March 2011 Individualized Education Program
Shortly thereafter, on January 18, 2011, L.O. wrote to the
CSE and requested an immediate reevaluation of K.T. to ensure
that he was receiving appropriate services in an appropriate
educational setting. The CSE agreed and reconvened on March 7,
2011 to review K.T.’s IEP.8 The March 2011 IEP formulated by
the CSE for March 21, 2011 to March 21, 2012 (i.e., the 2011–2012
school year), recommended that K.T.’s services remain
unchanged from the December 2011 IEP and that he continue his
placement in the alternative assessment program and receive the
same speech, physical, and occupational therapy services. The
March 2011 IEP provided no new annual goals or short‐term
objectives, included a transition plan identical to that contained
in the December 2010 IEP, and, although the March 2011 IEP
stated that a new BIP had been developed for K.T., none was
incorporated in the IEP. Thereafter, K.T. continued to attend the
6:1:1 public school placement until November 18, 2011, when he
began refusing to attend school.
E. Administrative Review
On December 9, 2011, L.O. filed a due process complaint,
claiming that the DOE had failed to provide K.T. with a FAPE
for the 2009–2010, 2010–2011, and 2011–2012 school years. L.O.
8 Those present at this meeting included (1) L.O., (2) a DOE
representative, (3) K.T.’s special education teacher, Myrna Quinones,
(4) a school psychologist, and (5) K.T.’s Medicaid Service Coordinator.
9
alleged eighteen separate deficiencies in the IEPs developed for
K.T., including that (1) the IEPs failed to reflect reliance on any
evaluations or assessments of K.T., (2) the CSE created BIPs
without the benefit of FBAs resulting in his refusal to attend
school, (3) the DOE failed to provide adequate speech‐language
services, (4) the CSE failed to develop annual goals that
adequately addressed K.T.’s educational needs, (5) the IEPs
failed to provide parent counseling and training as a related
service, and (6) K.T.’s significant deterioration as a result of
inappropriate programming had led to the need for a residential
private school placement.
On January 10, 2012, a five‐day impartial hearing
commenced before an IHO, which heard testimony from nine
witnesses.9 On April 18, 2012, the IHO rejected L.O.’s challenge
to the appropriateness of K.T.’s December 2009, December 2010,
and March 2011 IEPs, and denied L.O.’s claim for relief.
L.O. appealed the IHO’s decision to an SRO. On March
15, 2013, the SRO affirmed the IHO’s decision and dismissed the
appeal, concluding that all three IEPs were properly designed to
address K.T.’s educational needs. In reaching its conclusion, the
SRO rejected L.O.’s claim that there was no evidence that the
CSE had reviewed K.T.’s evaluations in preparing his IEPs,
9 L.O. offered testimony from four witnesses: (1) Carol Bufano, a
former DOE related services coordinator; (2) Gracie President, the
program manager for Service for the Underserved; (3) Peter Doran, the
Medicaid Service Coordinator for Services for the Developmentally
Challenged; and (4) K.T.’s mother. The DOE offered testimony from
five witnesses: (1) Myrna Quinones, K.T.’s special education teacher;
(2) Eleyna Rivas, the assistant principal at K.T.’s school; (3) Charlene
Torres, a speech teacher; (4) Kim McPherson, an occupational
therapist; and (5) Charito Labay, a physical therapist.
10
finding that, although the record did not show which evaluative
information was reviewed during the CSE meetings, the
evidence in the hearing record nevertheless was consistent with
the information contained in the evaluations.
As to the DOE’s failure to develop FBAs in any of the IEPs
in accordance with New York regulations, the SRO determined
that this failure did not amount to a FAPE deprivation because
the IEPs adequately identified the problem behaviors and
prescribed ways to manage them. As to the lack of a BIP in the
March 2011 IEP, the SRO reasoned that a BIP was unnecessary at
the time of the March 2011 IEP because K.T.’s level of
social/emotional performance “remained unchanged from the
previous IEP,” which included a BIP. App. 58. Further, with
respect to K.T.’s refusal to attend school, the SRO concluded that
this behavior did not begin until well after the preparation of the
March 2011 IEP and therefore was not relevant for purposes of
evaluating the adequacy of the March 2011 IEP.
Further, the SRO considered L.O.’s argument that the
IEPs’ provision of two weekly thirty‐minute sessions of speech‐
language therapy in a group of three was in violation of New
York law because the regulations required daily instructional
services, but found it to be without merit because daily language
instruction was not required under the current regulations. The
SRO also noted that K.T.’s teacher testified that additional
speech‐language services were available to K.T. in the classroom.
In addition, as to the IEPs’ goals and objectives, the SRO
determined that “the annual goals and short term objectives . . .
contained sufficient specificity by which to guide instruction and
intervention, evaluate [K.T.’s] progress, and gauge the need for
continuation or revision, and they contained adequate evaluative
11
criteria.”10 App. 42. Last, the SRO determined that, although the
CSE erred by omitting provisions for parental counseling and
training in the IEPs, this failure did not deprive K.T. of a FAPE.
F. District Court Review
Thereafter, L.O. brought this action in the District Court,
claiming procedural and substantive violations under the IDEA
resulting in the denial of a FAPE for K.T, and seeking a reversal
of the SRO’s decision. The parties each separately moved for
summary judgment, and on March 23, 2015, the District Court,
relying heavily on the SRO’s analysis, affirmed that decision.
First, as to the DOE’s claim that the CSE failed to review
any of the evaluative materials in developing the IEPs, the
District Court reviewed each IEP and held that, although the
record did not indicate which specific evaluative materials the
CSE had considered in formulating the IEPs, each IEP was
“consistent with evaluative material available to the CSE at the
time of these meetings.” L.O., 94 F. Supp. 3d at 555. Accordingly,
the District Court held that, to the extent such a failure to
identify specific evaluative materials upon which it relied in
formulating an IEP amounts to a procedural violation of the
IDEA, this did not deny K.T. a FAPE.
The District Court next considered L.O.’s claim that K.T.
was deprived of a FAPE because the DOE failed to conduct an
FBA in connection with any of the IEPs despite the presence of
K.T.’s significant interfering behaviors. Despite this omission,
the District Court found that the December 2009 and December
10 The SRO noted, however, “that one goal related to fine motor skills
failed to include the frequency that the student’s progress would be
reported to the parent,” and directed the DOE “to comply with this
requirement.” App. 42.
12
2010 IEPs each contained BIPs that sufficiently addressed K.T.’s
interfering behaviors and provided strategies to improve his
behavioral performance and therefore there was no violation of
the procedures of the IDEA. The District Court, however, did not
address the lack of a BIP in the March 2011 IEP. As to L.O.’s
claim that the March 2011 IEP was equally deficient, as
highlighted by K.T.’s eventual refusal to attend classes in the fall
of 2011, the District Court rejected the argument because K.T.’s
refusal to attend class did not begin until many months after the
March 2011 IEP had been developed, and the District Court’s
review of the adequacy of the IEP was limited to the written plan
itself and the information available to the parties at the time the
plan was formulated. Accordingly, the District Court held that
there was no error on the part of the DOE and that the SRO
correctly refused to consider K.T.’s attendance issues in
reviewing the adequacy of the March 2011 IEP.
Next, the District Court evaluated whether the IEPs
adequately addressed K.T.’s speech and language needs. It noted
that, although each IEP provided for speech‐language therapy
twice each week for thirty minutes in a group of three, prior to
December 2010, at the time the December 2009 IEP was
prepared, New York law required that such services be provided
to autistic students daily, in groups of two or less for thirty
minutes or in groups of six or less for sixty minutes. The District
Court observed that neither the IHO nor the SRO recognized
that the speech‐language services provided for in the December
2009 IEP for K.T. were consequently in violation of New York
law. It thus declined to defer to either of their findings
concerning the question of whether the December 2009 IEP’s
provisions for speech‐language instruction denied K.T. a FAPE.
Nonetheless, despite this procedural error in the December 2009
IEP, the District Court concluded that the IEP “adequately
13
addressed K.T.’s speech and language needs.”11 Id. at 560. As to
the December 2010 and March 2011 IEPs, which also
recommended that K.T. receive speech‐language therapy twice
weekly for thirty minutes in a group of three, the District Court
noted that these IEPs were developed after the 2010 amendment
to the New York regulation and therefore were in accordance
with New York law. The District Court further agreed with the
SRO that the speech‐language provisions of the December 2010
and March 2011 IEPs were appropriate.12
The District Court observed that the December 2009 IEP provided
11
goals to improve K.T.’s reading and social interaction skills with 80%
accuracy, and that the IEP included short‐term objectives to improve
his ability to play board games, which would allow him to experience
progress in his receptive language skills and ability to follow
directions. The District Court also noted that K.T. had experienced
progress in his speech‐language skills under the prior two IEPs and
that the CSE thus reasonably concluded that the continuation of the
twice‐weekly group speech‐language program was appropriate for
K.T.
12 The District Court noted K.T.’s continued progress in the social
interaction goals included in the December 2009 IEP, which supported
the CSE’s determination for K.T. to continue the same speech‐language
program moving forward. With respect to the March 2011 IEP, the
District Court observed that the IEP continued to recommend that K.T.
receive the same speech‐language services as those provided for in the
December 2010 IEP. Although L.O. argued that K.T. had experienced
minimal progress between December 2009 and March 2011 and thus a
new program should have been generated for K.T., the District Court
disagreed, finding that, during this three‐month period, K.T. had
made some progress with his goals and that his teacher reasonably
anticipated that he would meet his goals with more time.
14
The District Court also considered the DOE’s alleged
failure to appropriately develop adequate goals in the IEPs that
satisfied K.T.’s educational needs and agreed with the SRO that
the goals set by the CSE in the December 2009 and December
2010 IEPs were appropriate in light of K.T.’s needs at the time.13
As for the March 2011 IEP, however, the District Court observed
certain deficiencies unidentified by the SRO. Specifically, it
observed (1) the lack of goals related to K.T.’s occupational and
physical development despite no notable change in K.T.’s needs
since the formulation of the December 2010 IEP, and (2) the
March 2011 IEP recommended that K.T. continue to receive
occupational and physical therapy, yet omitted the frequency
with which K.T.’s progress would be reported by the DOE. The
District Court found that the IEP’s lack of goals related to K.T.’s
occupational and physical needs constituted a procedural
violation but that, because the March 2011 IEP continued K.T.’s
physical and occupational therapy programs, as well as a
transition plan carried over from the December 2010 IEP, which
set goals related to K.T.’s functional and occupational skills, the
March 2011 IEP did not deny K.T. a FAPE because it contained
“detailed and objective standards by which [K.T.’s] progress
c[ould] be measured on both an annual and short‐term basis.” Id.
13 More specifically, although the December 2009 IEP did not explicitly
mention K.T.’s toileting needs or that he suffered from pica, the
District Court observed that the IEP included goals related to K.T.’s
“self‐abusive behaviors such as . . . eating staples,” and that he must
therefore “be observed consistently,” and it also provided an annual
goal of “improv[ing] [K.T.’s] fine motor skills necessary for performing
[activities of daily living] and [s]chool activities.” L.O., 94 F. Supp. 3d
at 557 (third and fourth alterations in original) (internal quotation
marks omitted).
15
at 557 (first alteration in original) (internal quotation marks
omitted).
Next, the District Court noted the DOE’s failure to
provide for parental training and counseling in accordance with
New York law in each of the IEPs, which it concluded amounted
to a procedural violation under the IDEA. Nonetheless, the
District Court agreed with the SRO that this violation on its own
did not amount to a denial of a FAPE for any school year.
Last, the District Court considered the cumulative effect
of the multiple procedural violations in this case but found that
“[t]hese deficiencies, even when considered cumulatively, did
not deny a FAPE to K.T.,” because these deficiencies were “more
formal than substantive.” Id. at 571 (internal quotation marks
omitted).
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. ex rel. S.W. v.
N.Y.C. Dep’t of Educ., 725 F.3d 131, 138 (2d Cir. 2013) (alteration
in original) (quoting M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217,
240 (2d Cir. 2012)). “Summary judgment in this context involves
more than looking into disputed issues of fact; rather, it is a
‘pragmatic procedural mechanism’ for reviewing administrative
decisions.” R.E., 694 F.3d at 184 (quoting A.C. ex rel. M.C. v. Bd. of
Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir.
2009)). “This review ‘requires a more critical appraisal of the
agency determination than clear‐error review’ but ‘falls well
short of complete de novo review.’ Accordingly, our de novo
review only seeks to independently verify that the
16
administrative record supports the district court’s determination
that a student’s IEP was adequate.” M.W., 725 F.3d at 138
(quoting M.H., 685 F.3d at 244) (citing R.E., 694 F.3d at 184).
Our role in reviewing the agency’s determination is
further constrained “by our lack of specialized knowledge and
educational expertise,” requiring “‘defer[ence] to the
administrative decision [particularly where] the state officer’s
review has been thorough and careful.’” Id. at 138–39 (second
alteration in original) (quoting R.E., 694 F.3d at 184). That is,
courts may not “substitute their own notions of sound
educational policy for those of the school authorities which they
review.” Rowley, 458 U.S. at 206. The level of deference granted
to the administrative decision, however, is not without
limitation. To merit deference, “[t]he SRO’s or IHO’s factual
findings must be ‘reasoned and supported by the record.’” M.H.,
685 F.3d at 241 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489
F.3d 105, 114 (2d Cir. 2007)).
I. PROCEDURAL VIOLATIONS
“In determining whether an IEP complies with the IDEA,
courts make a two‐part inquiry that is, first, procedural, and
second, substantive.” R.E., 694 F.3d at 189–90. As all of the
alleged violations are procedural in nature, only the first step is
relevant here. At this step, we “examine[] the procedural
adequacy of the IEP, asking ‘whether the state has complied
with the procedures set forth in the IDEA.’” T.M. ex rel. A.M. v.
Cornwall Cent. Sch. Dist., 752 F.3d 145, 160 (2d Cir. 2014) (quoting
R.E., 694 F.3d at 190). Under this framework, “[p]rocedural
violations will entitle parents to [relief] only if they ‘impeded the
child’s right to a [FAPE],’ ‘significantly impeded the parents’
opportunity to participate in the decisionmaking process
regarding the provision of a [FAPE] to the parents’ child,’ or
‘caused a deprivation of educational benefits.’” Id. (third and
17
fourth alterations in original) (quoting 20 U.S.C.
§ 1415(f)(3)(E)(ii)). “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.’” Id. (quoting R.E., 694 F.3d at
190). Here, L.O. alleges that the DOE committed multiple
procedural errors in formulating each of K.T.’s IEPs,
independently and cumulatively resulting in the denial of a
FAPE for each school year.
A. Evaluative Data
L.O.’s first attack on the procedural adequacy of the three
IEPs is that there is no record evidence that the CSE reviewed
any evaluative materials in developing K.T.’s December 2009,
December 2010, and March 2011 IEPs, which amounted to a
denial of a FAPE to K.T. In formulating a student’s IEP, the
IDEA requires a CSE to “review existing evaluation data on the
child, including—(i) evaluations and information provided by
the parents of the child; (ii) current classroom‐based, local, or
State assessments, and classroom‐based observations; and (iii)
observations by teachers and related services providers.” 20
U.S.C. § 1414(c)(1)(A); see also 34 C.F.R. § 300.324(a)(1)(iii) (“In
developing each child’s IEP, the IEP Team must consider . . .
[t]he results of the initial or most recent evaluation of the child
. . . .”).
Although the SRO agreed that “the [DOE] did not show
which evaluative information was reviewed during the course of
the CSE meeting[s]” and that there was no “evidence that any of
[K.T.’s] evaluations were reviewed by the CSE in preparation for
or during any of the three CSE meetings at issue,” the SRO
determined that “the hearing record contain[ed] evaluative
18
materials that, based on their date, existed at the time of each of
the CSE meetings,” and “from which [K.T.’s] IEP could be
developed.” App. 37, 41. The SRO further concluded that K.T.’s
IEPs were “prepared in a manner consistent with information
included in the evaluative materials that had been conducted at
the time of the . . . CSE meeting[s] and that there was no denial
of a FAPE due to inadequate evaluation or an insufficient
statement of [K.T.’s] needs in the . . . IEP[s].” See App. 41. The
District Court agreed and affirmed, holding that, although the
failure to cite specific evaluative materials constituted a violation
of the procedures of the IDEA, “all of the IEPs [were] consistent
with evaluative material available to the CSE at the time of these
meetings” and thus the violations “did not deny K.T. a FAPE.”
L.O., 94 F. Supp. 3d at 555.
The SRO’s analysis of L.O.’s claim as to each IEP is
indeed thorough; it devotes nearly thirteen full single‐spaced
pages to its comparison of the terms of each IEP with the
evaluative materials in existence at the time the IEP was
developed. We defer to the SRO’s careful analysis and its
ultimate conclusion that the provisions in each IEP were
generally consistent with the evaluative materials available to
the CSE, and that K.T. was not deprived of a FAPE as a result of
the procedural error. Despite this conclusion, this violation
deserves further explanation, as the SRO and District Court
failed to appreciate its implications, particularly under the facts
of this case.
As noted, both the statute and its implementing
regulations require a CSE, in developing a child’s IEP, to consider
the most recent evaluative data of the child. See 20 U.S.C.
§ 1414(c)(1)(A); 34 C.F.R. § 300.324(a)(1)(iii). It therefore follows
that the burden rested with the DOE to demonstrate which
evaluative materials were reviewed during each CSE meeting in
reaching the terms of the IEPs, a burden that both the SRO and
19
District Court concluded the DOE failed to carry. The purpose of
the requirement is to ensure that a CSE, in formulating a
student’s IEP, provides the student with services narrowly
tailored to his or her particular educational needs based on
actual and recent evaluative data from the student’s education
providers, so that the developed IEP will reasonably enable the
child to receive the educational benefits to which he or she is
entitled by law. Where, as here, however, the CSE failed to
memorialize how it reached the terms of the IEPs, reviewing
authorities and courts are left to speculate many months, or as in
this case, many years, later as to how the CSE reached the terms
of the child’s IEP (i.e., which, if any, evaluative materials the CSE
actually considered). The resulting implication of this procedural
violation is that it provides the reviewing authority with almost
unfettered discretion, as it combs through the evaluative
materials generated at the time the IEP was formulated, to match
terms of the IEP to any assertion contained in any existing
document, irrespective of whether it was actually viewed and
considered by the CSE or even in possession of the CSE at the
time of the meeting.
Further, the SRO and District Court’s conclusion that
what mattered was the existence of evaluative materials at the
time of the relevant CSE meeting that corroborated the terms of
the IEP misses the point. The statute requires that a CSE actually
review evaluative data and base the terms of the student’s IEP
on that information. The rule fashioned by the SRO and District
Court ignores the plain language of the statute entirely. Rather, it
permits the reviewing body to offer post hoc rationalizations for
how the CSE reached its conclusions and refer to documents that
may or may not have been in possession of the CSE at the time of
the meeting.
20
Further, this violation calls into question whether, as shall
be seen, the other errors and omissions in the IEPs were a result
of oversight because the CSE failed to review any of the
evaluative materials available to it or a result of a deliberate
decision on the part of the CSE based on its specialized
knowledge and educational expertise. Indeed, Myrna Quinones,
K.T.’s special education teacher who was present at the March
2011 CSE meeting, testified before the IHO that she could not
recall reviewing any evaluative material at the CSE meeting, nor
could she recall the CSE team engaging in any discussion about
K.T.’s skills or functioning. Put differently, this violation casts
doubt on the SRO’s remaining conclusions and analyses
regarding how the CSE reached the remaining terms of the IEPs.
Last, to the extent the DOE relies on this Court’s holding
in R.B. v. New York City Department of Education, 589 F. App’x
572, 575 (2d Cir. 2014) (summary order) for the proposition that
L.O. is precluded from contesting the absence of evaluative
information during the CSE meetings because she could have
raised the matter during or immediately following each meeting
at which she was present, we disagree. Whether L.O. could have
objected to the absence of evaluative materials or the CSE’s
failure to consider adequate evaluative information in
formulating K.T.’s IEPs does not absolve the DOE from carrying
out responsibilities imposed on it by Congress.14
Accordingly, although we affirm the SRO’s determination
that this violation, standing alone, did not deprive K.T. of a
Importantly, L.O. consistently raised this objection during the
14
administrative proceedings below and before the District Court. We
can find nothing in the statute that imposes an obligation on a parent
to raise such an objection during the CSE meeting.
21
FAPE, it is clear that, at a minimum, this failure constituted a
serious violation of the procedures of the IDEA in this case.
B. Functional Behavior Assessments and Behavioral
Intervention Plans
Under New York law, the DOE is required 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); see also R.E., 694 F.3d at 190. An FBA includes
“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.” N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(r). The
“purpose of an FBA 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. Further, where, as here, “a student’s behavior
impedes his learning, a BIP must be developed with strategies to
deal with the problem behavior(s).” Id. (citing N.Y. Comp. Codes
R. & Regs. tit. 8, § 200.22(b)). A BIP must 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, as here, however, a child’s behavior impedes
learning and no FBA has been conducted, we must “take
particular care to ensure that the IEP adequately addresses the
child’s problem behaviors.” R.E., 694 F.3d at 190. Although we
have explained that the “[f]ailure to conduct an FBA . . . does not
render an IEP legally inadequate under the IDEA so long as the
22
IEP adequately identifies a student’s behavioral impediments
and implements strategies to address that behavior,” M.W., 725
F.3d at 140, we have cautioned that “[t]he failure to conduct an
adequate FBA is 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, each IEP indicated that the CSE determined that
K.T.’s behavior seriously interfered with his instruction and
therefore required additional adult support, and thus that a BIP
had been developed. As noted, although the December 2009 and
December 2010 IEPs developed BIPs, the DOE failed to conduct
an FBA of K.T. until December 2011, after K.T. stopped attending
classes. Moreover, although the March 2011 IEP stated that a
new BIP was developed for K.T., no BIP was attached to the
March 2011 IEP. The December 2009 and December 2010 IEPs
and BIPs are substantially similar to one another. Although no
FBA was developed for either IEP, the SRO concluded and the
District Court agreed that this did not result in a deprivation of a
FAPE for K.T. because the IEPs, with the attached BIPs,
adequately identified K.T.’s behavioral impediments and
implemented strategies to address these problematic behaviors.
L.O. contends that the DOE’s development of BIPs
without available FBAs amounts to a serious violation of the
IDEA’s procedures and resulted in a FAPE deprivation for K.T.
Specifically, she maintains that the omission of FBAs prevented
the DOE from identifying and thus eliminating the factors
actually causing K.T.’s interfering behaviors.
23
The IEPs identified K.T.’s social and emotional
behaviors—including that he often experienced rapid mood
changes and had become self‐abusive, verbally and physically
aggressive, restless, and at times, upset, anxious, and irritated—
and provided ways to manage them, through positive
reinforcement and praise from K.T.’s service providers.
Nonetheless, the SRO’s conclusion that the IEPs were adequate
in this regard was error.
While the December 2009 and December 2010 IEPs appear
to address K.T.’s problematic social and emotional behaviors,
and provided strategies for addressing these behaviors, absent
from either IEP are “global and specific hypotheses as to why the
problem behavior[s] occur[red]” as required by New York law.
See N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(mmm). Further,
as prescribed by the regulations, determining the cause of a
handicapped child’s problem behaviors is a minimum
requirement. See id. (“Behavioral intervention plan means a plan
that is based on the results of a[n FBA] and, at a minimum,
includes . . . global and specific hypotheses as to why the
problem behavior occurs . . . .” (emphasis added)). That is,
although each IEP contained a BIP, neither attempted to identify
the root causes of these behavioral deficiencies so that they could
be properly addressed and treated. Indeed, the December 2009
IEP notes that the CSE and K.T.’s service providers did not know
why K.T. displayed these interfering behaviors. See Pl.’s Ex. 6 at
4 (“Often times, [K.T.’s] mood and personality change without the
staff or teacher realizing the antecedent behavior or underlying cause.
At times he appears happy, while during other times, he appears
upset, anxious, irritated, and frustrated. . . . He can be verbally
and physically aggressive, many times for no apparent reason.”
(emphasis added)). Had an FBA been conducted, the CSE might
24
have been able to identify what caused K.T. to behave in certain
ways, and provide effective treatment for these behaviors.
Moreover, the March 2011 IEP’s deficiencies are
aggravated by the fact that, in addition to the absence of an FBA,
no BIP was developed for K.T. Although the SRO observed that
K.T.’s interfering behaviors remained unchanged from the
previous IEP and that no BIP was developed, the SRO reached
no conclusion regarding whether this omission constituted a
procedural error, a deprivation of a FAPE, or any error at all.
Although the description of K.T.’s social and emotional
behaviors may not have changed between the development of
the December 2010 IEP and March 2011 IEP, this did not excuse
the CSE from complying with its legal obligations to develop a
BIP for K.T., whose problem behaviors impeded learning.
Indeed, the IEP itself indicates that the CSE believed that a BIP
was warranted, yet the CSE failed to follow through with its
own directive. See Pl.’s Ex. 3 at 4 (noting that “[a] behavior
intervention plan has been developed”).
Further, we have repeatedly stated that the “failure to
conduct an FBA is a particularly serious procedural violation for
a student who has significant interfering behaviors.” See R.E.,
694 F.3d at 194. Because the CSE failed to address the root causes
of K.T.’s behavioral deficiencies, we are unable to determine
whether the IEPs adequately identified K.T.’s behavioral
impediments and whether the strategies formulated to address
those behaviors were appropriate.15 See id. at 190. Accordingly,
In connection with the omission of an FBA and BIP in the March
15
2011 IEP, L.O. insists that the SRO and District Court failed to
appreciate that K.T.’s deteriorating behaviors, such as his refusal to
attend school, were a direct result thereof, that the DOE failed to
promptly reconvene a CSE meeting regarding K.T.’s attendance issues,
25
the omission of FBAs in each IEP and the absence of a BIP in the
March 2011 IEP constituted serious procedural violations
impairing our ability to review the adequacy of the IEP
provisions.
C. Speech‐Language Therapy
As noted previously, each IEP provided for speech‐
language therapy two times weekly for thirty minutes in a group
and that he was consequently deprived of a FAPE during the 2011–
2012 school year. While we find it unsurprising that K.T.’s behaviors
continued to deteriorate to this level given the DOE’s repeated failure
to adequately address his interfering behaviors over the years, we
must reject L.O.’s claim. As the SRO correctly found, because K.T.’s
refusal to attend school did not commence until after the development
of the March 2011 IEP, it can have no bearing on the adequacy of that
particular IEP. See R.E., 694 F.3d at 186 (“[T]he IEP must be evaluated
prospectively as of the time of its drafting.”). That is, because we must
review the adequacy of the IEP at the time it was offered, based on the
information the CSE had at that time, K.T.’s refusal to attend school
many months later cannot affect the adequacy of the IEP. As the SRO
noted, whether the DOE should have convened at an earlier date to
address this new problem behavior is a matter for a future proceeding,
but it is not relevant to the present one before us. Indeed, L.O.
commenced a separate action challenging the adequacy of the
subsequent IEP formulated in March 2012, including the CSE’s failure
to address K.T.’s school avoidance behaviors. In that action, L.O. was
awarded compensatory services by an IHO for a ten‐month period
(i.e., the duration for which K.T. had been without any schooling and
services since the last day covered by the IHO’s ruling in the present
action), which extended beyond K.T.’s period of eligibility to receive
services under the IDEA (i.e., beyond his twenty‐first birthday), and
K.T. was subsequently placed in a residential private school education
program. That decision was uncontested by the parties.
26
of three. L.O. maintains that this level of speech‐language
services was not reasonably calculated to afford K.T. an
opportunity to obtain educational benefits and thereby deprived
him of a FAPE.
1. December 2009 IEP’s Speech‐Language Provision
In December 2009, at the time K.T.’s December 2009 IEP
was prepared, New York regulations required that instructional
speech and language services “be provided to meet the
individual language needs of a student with autism for a
minimum of 30 minutes daily in groups not to exceed two, or 60
minutes daily in groups not to exceed six.” N.Y. Comp. Codes R.
& Regs. tit. 8, § 200.13(a)(4) (amended Dec. 8, 2010) (emphases
added). Although the IHO and SRO each construed the incorrect
version of the applicable regulation and thus failed to appreciate
the procedural error in this case, the District Court correctly
found that K.T.’s December 2009 IEP’s provision for two speech‐
language therapy sessions per week, rather than daily sessions,
violated the then‐existing regulation. Moreover, although
unidentified by the District Court, the group size of K.T.’s
instruction (i.e., three students) also violated the regulation,
which required that a student with autism that received daily
speech‐language services for thirty minutes be in a smaller
group “not to exceed two.” Id. Despite finding a procedural
violation and declining to defer to the findings of either the IHO
or SRO on this matter because neither administrative officer
recognized the applicable regulation, the District Court
nonetheless held that “the record demonstrate[d] that the
December 2009 IEP adequately addressed K.T.’s speech and
language needs.” L.O., 94 F. Supp. 3d at 560. Specifically, the
District Court found that the 2009 IEP contained adequate goals
and objectives that were tailored toward improving K.T.’s
reading, social interaction, and receptive language skills. The
27
District Court also found that reports on the record indicated
that K.T. had made progress in his speech‐language skills under
the prior IEPs, suggesting that it was appropriate to continue the
same speech‐language program for K.T. under the current IEP.
In support of its conclusion that K.T. was receiving adequate
speech‐language services under the 2009 IEP, the District Court
further relied on testimony from the IHO hearing from Ms.
Quinones, K.T.’s special education teacher, who testified that she
incorporated “language acquisition in the class . . . curriculum”
by “collaborat[ing] with the speech and language teacher.” See
IHO Hearing Tr. 115. We disagree with the District Court’s
assessment.
The District Court’s reliance on the testimony of Ms.
Quinones regarding the provision of additional speech‐language
instruction in the classroom was error, as it was impermissibly
retrospective. See R.E., 694 F.3d at 186 (“[T]he IEP must be
evaluated prospectively as of the time of its drafting and
therefore . . . retrospective testimony that the school district
would have provided additional services beyond those listed in
the IEP may not be considered.”); see also P.K. ex rel. S.K. v.
N.Y.C. Dep’t of Educ., (Region 4), 526 F. App’x 135, 140–41 (2d Cir.
2013) (summary order) (“[M]uch of the evidence relied on by the
SRO to support his view that the IEP was adequate was
‘retrospective testimony.’ For example, the SRO concluded that
the IEP provided adequate speech and language therapy in large
part because the teacher in S.K.’s proposed placement classroom
testified that she provided frequent language instruction in the
form of gestures, picture symbols, and sign language. This
testimony may accurately reflect the care and individual
instruction that would be available to S.K. at her proposed
placement, but it has no bearing on the evaluation of S.K.’s IEP.
For the reasons discussed in R.E., neither the state review
28
officers nor our Court may justify the CSE’s IEP based on
evidence about the language services S.K. would actually receive
in her public school placement. Parents are entitled to rely on the
IEP for a description of the services that will be provided to their
child.”). Although the District Court attempted to distinguish
this case from our long line of cases barring retrospective
testimony because K.T. was actually educated at the IEP
placement, this is a distinction without a difference. Moreover,
although we have previously allowed testimony “that explains
or justifies the services listed in the IEP,” R.E., 694 F.3d at 186,
this exception is not applicable here. Ms. Quinones’s testimony
indicated that K.T. was receiving speech‐language acquisition in
the classroom, a service that was not provided for in the IEP.
This testimony, however, does not further explain a service
provided for in the IEP, but rather explains a new service not
noted therein. Accordingly, although her testimony may
accurately reflect the services received in the classroom, it has no
bearing on the evaluation of K.T.’s IEP.
Further, although we have not previously considered
whether failure to comply with the speech‐language therapy
provision for students with autism might rise to the level of a
FAPE deprivation, we are of the view that such an inadequacy
constitutes a serious violation of the procedures of the IDEA.
This is because central to the provision of a student’s special
education is his or her communicative functioning, including
speech and language instruction. Although the December 2009
IEP listed K.T.’s speech and language levels and deficiencies
with some detail and provided annual goals and short‐term
objectives for K.T. to progress in these areas,16 these provisions
For example, the December 2009 IEP provides an annual goal of
16
“develop[ing K.T.’s] reading skills with 80% accuracy” and short‐term
29
did nothing to compensate for the CSE’s failure to mandate the
proper frequency with which he was to receive speech and
language instruction and more individualized learning in a
smaller classroom setting. Put differently, these provisions did
not compensate for the lack of (as much as) four hours of weekly
instruction to which K.T. was legally entitled but did not receive
during the 2009–2010 school year. Moreover, this violation is
underscored by the fact that, in at least the prior two IEPs
developed for K.T. in December 2007 and December 2008, he
was provided with the same infrequent weekly instruction in
violation of New York law, further limiting any progress he
might have made with his speech in prior years. Further
stressing the importance of the speech‐language provision in this
case is that K.T. possesses “a cognitive linguistic level of
approximately 3.6 years,” that is, less than a four‐year‐old. See
IHO Hearing Tr. 392. His teacher, Ms. Quinones, also testified
that K.T. did not “know any letter sounds.” IHO Hearing Tr. 172.
Thus, the record demonstrates that further speech language
therapy in a smaller class setting is precisely what K.T. required
in order to progress.
Accordingly, the DOE’s procedural error in this case was
a serious one and, contrary to the findings of the District Court,
was not rehabilitated in the IEP by other provisions made by the
CSE. The procedural error thus deprived K.T. of important
educational benefits to which he was entitled by law.
objectives, such as “read[ing] and identify[ing] items he likes from a
fast food menu 8/10 times over a two week period,” and “look[ing] at a
picture book for enjoyment during a choice reading time 8/10 times
over a two week period.” Pl.’s Ex. 6 at 6.
30
2. December 2010 IEP’s Speech‐Language Provision
On December 8, 2010, the New York regulation governing
speech‐language therapy for students with autism was amended
to remove the daily speech‐language instruction and the
minimum class‐size requirements, imposing upon the DOE only
that “[i]nstructional services shall be provided to meet the
individual language needs of a student with autism.” N.Y.
Comp. Codes R. & Regs. tit. 8, § 200.13(a)(4). The December 2010
IEP, which provided for the same speech‐language instruction as
the December 2009 IEP and was formulated on December 20,
2010, after the new version of the regulation became effective,
thus was in conformity with the speech‐language therapy
regulation. See N.Y. Comp. Codes R. & Regs. tit. 8, § 200.13(a)(4).
Although the frequency of speech‐language instruction in
the December 2010 IEP was in conformity with the law, L.O.
contends that this level of recommended instruction was not
reasonably calculated to deliver K.T. educational benefits and
thus deprived him of a FAPE. According to L.O., the CSE should
have increased K.T.’s speech services in the December 2010 IEP,
given that K.T. possessed the language skills of a three‐year‐old.
A comparison of the speech‐language services provided
for in the December 2009 and December 2010 IEPs reveals that
they are substantially similar. The SRO observed that progress
updates between January 2010 and November 2010 showed that
K.T. had made progress on his goal in the December 2009 IEP of
socially conversing with his peers and adults, as well as his
social interaction goal of improving his receptive language skills.
The SRO also found that K.T. had met a short‐term objective,
which was improving his ability to play board games. Based on
this progress, the SRO determined that the CSE reasonably
continued K.T.’s annual goals and short‐term objectives
31
contained in the previous IEP (i.e., the December 2009 IEP),
which adequately addressed K.T.’s speech‐language needs.
We are not persuaded, based on the record before us, that
these services adequately addressed K.T.’s needs. Ms. Quinones
testified before the IHO that K.T. knew no letter sounds and was
able to identify only some letters of the alphabet. Despite this
observation, Ms. Quinones stated that she did not work with
K.T. to improve his ability to make letter sounds during any of
the school years challenged in this action. Moreover, when
pressed on the issue, Ms. Quinones testified that she believed
such learning was unnecessary because K.T. had “reach[ed] a
plateau” because he was unable to “retain information,” so she
“move[d] on to functional independent skills.” IHO Hearing Tr.
172, 173. Further, consistent with Ms. Quinones’s testimony was
that of Charlene Torres, the DOE’s speech therapist who worked
with K.T., who testified at the IHO hearing that she did not
address K.T.’s language deficiencies; rather, she focused
exclusively on goals related to his social interaction with others.
Ms. Torres further acknowledged that K.T.’s vocabulary was
extremely restricted, limited often to “yes” and “no” answers.
IHO Hearing Tr. 372. Moreover, K.T.’s Medicaid Service
Coordinator, Peter Doran, testified that, since he had begun
working with K.T. in 2009, he believed that K.T. “ha[d] made no
progress” with his speech, which had “stayed the same.” See
IHO Hearing Tr. 624.
We are mindful, of course, that how best to educate an
autistic child is “a difficult question of educational policy” that
requires deference to the decisions of administrative experts. T.P.
ex rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254
(2d Cir. 2009). Based on the record, however, it appears plain
that, contrary to the findings of the SRO, the speech‐language
services set forth in the December 2010 IEP—which were
32
substantially similar to those contained in the December 2009
IEP—were not adequately designed to address and improve
K.T.’s speech‐language needs. Indeed, IHO hearing testimony
from Carol Bufano, a former DOE related services coordinator
responsible for ensuring that students received the services
provided for under the terms of their IEPs, suggested that the
speech‐language services offered at K.T.’s placement school
were generally applicable to all students and not narrowly
tailored to K.T.’s particular needs. Although K.T. may have
enjoyed limited progress in achieving certain social interaction
goals from the prior IEP, the hearing record reflects that K.T.’s
speech‐language skills had not improved and that he continued
to suffer from an almost complete inability to communicate
verbally with others.
The SRO’s conclusion that the CSE reasonably carried
over from the prior IEP the twice weekly speech‐language
services in groups of three thus was error. It is clear that K.T.’s
verbal communication skills were not improving under this
provision, yet no attempt to provide further out‐of‐class speech‐
language therapy was provided for in the IEP. Indeed, it is not
surprising that K.T. did not progress given that his IEPs did not
call on his instructors to attempt to work with him on actually
improving his speech. Thus, although the speech‐language
therapy services provided for in the IEP no longer violated
minimum requirements under the law, the limited and generally
applicable therapy sessions contained in the December 2010 IEP
were not reasonably calculated to provide K.T. with educational
benefits.
3. March 2011 IEP’s Speech‐Language Provision
In reviewing L.O.’s challenge to the speech‐language
instruction provided for in the March 2011 IEP, the SRO
observed that the description of K.T.’s speech‐language needs,
33
annual goals, and short‐term objectives remained unchanged
from the prior IEP formulated just three months earlier. It thus
concluded that the recommended continuation of the two thirty‐
minute speech‐language therapy sessions in groups of three was
reasonable. This was error. Given that K.T.’s speech‐language
needs remained unchanged from the prior IEP, we continue to
find these provisions inadequate because they were unlikely to
result in any progress in K.T.’s speech. Indeed, prior to the
formulation of the March 2011 IEP, a Vineland‐II Survey
Interview Report was generated for K.T. on March 7, 2011,
which determined that K.T.’s communication skills placed him
below one percentile. A preponderance of the evidence
demonstrates that K.T. was still in need of greater support
services in his learning environment related to his speech‐
language capabilities in March 2011.
D. Goals and Objectives
The IDEA requires that a student’s IEP include “a
statement of measurable annual goals, including academic and
functional goals, designed to . . . enable the child to . . . make
progress” and “meet each of the child’s other educational needs
that result from the child’s disability.” 20 U.S.C.
§ 1414(d)(1)(A)(i)(II)(aa) & (bb). “New York State regulations
require an IEP to specify ‘evaluative criteria, evaluation
procedures and schedules to be used to measure progress
toward meeting the annual goal.’” M.H., 685 F.3d at 249 (quoting
N.Y. Comp. Codes R. & Regs. tit. 8, § 200.4(d)(2)(iii)(b)). Further,
“[a]ny short‐term objective must also be ‘measurable.’” Id.
(quoting N.Y. Comp. Codes R. & Regs. tit. 8, § 200.4(d)(2)(iii)(c),
(iv)). We generally have held, however, that “[t]he sufficiency of
goals and strategies in an IEP is precisely the type of issue upon
which the IDEA requires deference to the expertise of the
administrative officers.” Grim v. Rhinebeck Cent. Sch. Dist., 346
34
F.3d 377, 382 (2d Cir. 2003). L.O. maintains that the goals in the
IEPs were inadequate because they failed to address K.T.’s pica,
toileting issues, and communication deficiencies. Thus, for L.O.,
because the goals set forth in each IEP failed to address K.T.’s
educational needs, the IEPs were procedurally inadequate and
K.T. was deprived of a FAPE.
1. December 2009 IEP’s Goals and Objectives
First, although the SRO made no findings with respect to
K.T.’s pica, the 2009 IEP identified K.T.’s behavioral deficiency,
noting his “self‐abusive behaviors such as . . . eating staples.”
Pl.’s Ex. 6 at 4. The IEP further provided that, as a result, K.T.
“must be observed consistently.” Pl.’s Ex. 6 at 4. Indeed, in the
BIP developed for K.T. as part of the 2009 IEP, it described his
pica (i.e., “eating staples”), and then listed as an expected
behavioral change that he “w[ould] engage less frequently in
self‐abusive behaviors,” and that such a change would be
achieved through a number of strategies, such as “constant
positive reinforcement” from his “classroom paraprofessionals”
and providing rewards and consequences for positive and poor
behavior. Pl.’s Ex. 6 at 16. Like the District Court, we are mindful
that the IEP did not include annual goals or short‐term objectives
specifically related to K.T.’s pica, nor did it include the frequency
with which K.T.’s progress would be reported by the DOE, but
we nonetheless conclude that there is nothing in the record to
indicate that these omissions prevented K.T. from making
progress in this area or deprived him of a FAPE. See 20 U.S.C.
§ 1414(d)(1)(A)(i)(II)(aa).
Next, with respect to K.T.’s toileting needs, evaluative
data, including a September 2009 psychosocial evaluation report,
stated that K.T. “need[ed] assistance in bathing and cleaning
himself after using the toilet.” Pl.’s Ex. 27 at 3. L.O. further
testified before the IHO that toileting was an issue with which
35
K.T. required assistance because “he urinate[d] all over the seat”
and “d[id not] clean himself” after bowel movements. IHO
Hearing Tr. 680. According to L.O., K.T. struggled using the
toilet alone because “[h]e ha[d] no eye coordination” and was
“not able to focus on the task at hand.” Id.
Although the December 2009 IEP did not specifically
address K.T.’s toileting needs, the District Court observed that it
did include an annual goal that K.T. “w[ould] improve [his] fine
motor skills necessary for performing ADL [(i.e., activities of
daily living)] and [s]chool activities,” which “w[ould] be
assess[ed] within a year.” Pl.’s Ex. 6 at 10. In addition, consistent
with L.O.’s testimony, K.T.’s BIP identified the interfering
behaviors noted in the psychosocial evaluation report as causing
his toileting issues, noting that K.T. “ha[d] significant difficulties
paying attention and maintaining concentration.” Pl.’s Ex. 6 at
16. The BIP further provided that it expected to “improve[] [his]
attention and concentration” with “ongoing support from
classroom paraprofessionals” by rewarding K.T. for exhibiting
positive behavior and punishing him for undesirable conduct.
Pl.’s Ex. 6 at 16. Thus, although the IEP failed to provide goals
and objectives specifically related to K.T.’s toileting needs, it
nonetheless designed goals that would enable K.T. to make
progress in this area.
Further, the December 2009 IEP adequately identified
goals and strategies for K.T.’s communication deficits,
providing, for example, that, “[i]n a year[,] [K.T.] w[ould] give
eye contact with familiar peers while transitioning from one
place to the other four out of five times over a three‐week
period. Pl.’s Ex. 6 at 11. As an annual goal, the IEP provided that,
“[i]n [a] one year period[, K.T.] w[ould] be able to initiate social
conversation with peers, family members or other staff members
in his envi[ronment],” which “w[ould] be monitored by
36
observation and class activities four out of five times over a two
week period.” Pl.’s Ex. 6 at 11. Moreover, the IEP provided that
“[w]ithin a year, [K.T.] w[ould] increase his social interaction
skills with 80% accuracy as measured by teacher made
activities.” Pl.’s Ex. 6 at 8. Toward reaching this goal, the IEP
provided short‐term objectives, which included “play[ing] board
games with other students 8/10 times over a two week period,”
“properly set[ting] a dinner table and identify[ing] all necessary
utensils 8/10 trials over a two week period,” and “distribut[ing]
classroom materials to his fellow peers and participat[ing] in
other classroom job activities 8/10 trials over a two week
period.” Pl.’s Ex. 6 at 8. The IEP thus contained goals and
objectives for skills related to reading, handwriting, community
awareness, and social interaction. We “defer[] to the expertise of
the administrative officers” over whether these goals and
objectives were sufficient. See Grim, 346 F.3d at 382.
Accordingly, we affirm the SRO’s conclusion that the
goals and objectives set forth in the December 2009 IEP
adequately addressed K.T.’s needs and provided sufficient
procedures for measuring his progress.
2. December 2010 IEP’s Goals and Objectives
K.T.’s December 2010 IEP provided seven distinct
annual/long‐term goals and eighteen short‐term objectives. As to
K.T.’s pica, although a 2010 Association for Retarded Children
(“AHRC”) psychological evaluation noted K.T.’s pica diagnosis,
observed that K.T. continued to “put[] staples in his mouth,” and
recommended that K.T. “continue to receive treatment for
symptoms related to PICA,” notably absent from the December
2010 IEP is any goal or objective related to improving this
behavioral deficiency. Pl.’s Ex. 25 at 2, 7. Indeed, the BIP
incorporated into the December 2010 IEP described K.T.’s
“eating staples” as a behavior that interfered with learning, yet
37
the CSE took no further steps to address this condition in the
IEP. See Pl.’s Ex. 5 at 14. The CSE thus erred in this respect.
As to toileting, however, a September 17, 2010 student
strengths‐based profile noted under K.T.’s activities of daily
living that K.T. is “independent” with respect to “toileting.” Pl.’s
Ex. 46 at 1. This is the only evaluative material on the record
regarding K.T.’s toileting needs at the time the December 2010
IEP was formulated. Accordingly, to the extent that L.O.
challenges the adequacy of the December 2010 IEP based on the
absence of goals and objectives related to toileting, that challenge
is without merit, as the only information of which the CSE could
have been aware indicated that K.T. was, by December 2010,
able to manage his toileting needs independently.
Further, the December 2010 IEP provided annual goals
addressing K.T.’s communicative deficiencies, which included,
among other things, “be[ing] able to use the keyboard on a
computer to type his name with minimal assistance as measured
by [a] teacher with minimal prompting within a two week
period . . . using data collection and observation every 2 weeks,”
and “be[ing] able to comply and cooperate in OT [(i.e.,
occupational therapy)] activities with use of self‐calming and
relaxation techniques with 2‐3 verbal and visual demonstrations
4 out of 5 opportunities,” the progress of which “w[ould] be
measured by [K.T.’s] therapist’s observation every 4 months.”
Pl.’s Ex. 5 at 7, 9. As to short‐term objectives related to
improving his communication skills, the SRO observed that the
IEP provided, among other things, (1) that K.T. “w[ould] be able
to identify and exchange items needed during an activity with
another student by giving and/or receiving objects given visual
prompting and verbal cues, 4/5 trials within a 2 week period,”
(2) that K.T. “w[ould] take turns appropriately in a group
activity by verbalizing ‘my turn,’ with visual cues and prompts
38
when needed, in 4/5 trials, within a 2 week period,” which
would be assessed “through data collection and observation
from teacher” and “evaluated at each marking period,” (3) that
K.T., “[w]hen shown a picture of a classmate, during a group
activity, . . . w[ould] go over to that student and greet them by
shaking their hand, with prompting and verbal cues, in 4 trials,
within a 2 week period,” assessed “through data collection from
[the] teacher” and “evaluated at each marking period,” and (4)
various objectives related to improving his typing skills, such as
learning to type the letters of his name. Pl.’s Ex. 5 at 6, 7. The
SRO concluded that these annual goals and short‐term objectives
appropriately and adequately addressed K.T.’s needs, and we
defer to its analysis.
Although the IEP is wanting of any annual goals or short‐
term objectives related to improving K.T.’s pica, this omission
did not deprive K.T. of a FAPE. Accordingly, the SRO’s
determination is affirmed.
3. March 2011 IEP’s Goals and Objectives
As to the March 2011 IEP’s goals and objectives, the SRO
observed that K.T.’s needs related to occupational and physical
therapy did not change between the formulation of the
December 2010 and March 2011 IEPs and thus concluded that
the goals carried over from the December 2010 IEP “continued to
be appropriately linked to the information reflected in the March
2011 IEP.” App. 57. Although the March 2011 IEP provided for
individual physical and occupational therapy services for K.T.
twice each week for thirty minutes and included three annual
goals and nine short‐term objectives, which it carried over from
the December 2010 IEP, it did not carry over the goals and
objectives related to K.T.’s occupational and physical therapy
included in the December 2010 IEP. These omissions included
annual goals and short‐term objectives of teaching K.T. how “to
39
tie his shoes,” and “develop[ing] his overall aerobic fitness level”
by using a stationary bicycle and working on “ball‐related game
activities.” Pl.’s Ex. 5 at 8, 9. These goals were omitted despite
the absence of any record evidence that, between the
formulation of the December 2010 IEP and the CSE meeting
convened in March 2011, a period of approximately three
months, K.T.’s needs related to these areas somehow dissipated
or changed. Indeed, the SRO made this observation, yet did not
explain it further.
The District Court made this observation and also noted
that the March 2011 IEP did not indicate the frequency with
which the DOE would report on K.T.’s progress during the
2011–2012 school year, and found that these omissions
amounted to a procedural violation of the IDEA, but “that this
procedural violation did not deny K.T. a FAPE” because the
March 2011 IEP “include[d] a transition plan—which was
carried over from the December 2010 IEP—that set[] goals
relating to K.T.’s functional and occupational skills.” L.O., 94 F.
Supp. 3d at 559. The District Court pointed to transition services,
including teaching K.T. (1) to “use supermarket circular[s] to
choose items to be bought,” (2) “community signs for use in the
community with adult supports,” (3) “work task activities such
as sorting and matching,” and (4) “functional skills activities
such as[] setting the table, [and] washing/drying dishes,” which
it found “appropriately address[ed] K.T.’s occupational and
physical needs.” Id. (first, second, and third alterations in
original) (internal quotation marks omitted).
It is difficult to see, however, how these transitional
services, which pertained only to K.T.’s occupational therapy
needs, could have rehabilitated the otherwise deficient IEP,
given that these goals had no relevance to the physical therapy
goals that the District Court acknowledged were missing and
40
amounted to a violation of the procedures of the IDEA. That is,
although the transition plan did provide other objectives related
to K.T.’s occupational therapy needs in the March 2011 IEP, it
provided no objectives related to K.T.’s physical therapy needs,
which were well documented in the prior IEP and, based on the
information available to the CSE at the time, had not been
resolved. Moreover, the March 2011 IEP suffers from the same
deficiency as its predecessor (i.e., the December 2010 IEP), as it
failed to provide for any treatment of K.T.’s pica. Indeed, there
was no new evidence or reports that this condition somehow
dissipated since K.T.’s 2010 AHRC psychological evaluation.
Further, as the District Court observed, the March 2011 IEP
provided no indication regarding the frequency with which the
DOE would report on K.T.’s progress in reaching his goals
during the 2011–2012 school year, in violation of New York law.
See N.Y. Comp. Codes R. & Regs. tit. 8, § 200.4(d)(2)(iii)(b).
As to K.T.’s toileting, the SRO observed that a March 2011
teacher evaluation prepared prior to the March 2011 CSE
meeting indicated that K.T. was independent in all activities of
daily living, including toileting. Thus, the SRO reasonably
determined, based on this evidence, that no provision was
needed to address this condition in the IEP. Further, given the
SRO’s conclusion that K.T.’s needs remained unchanged
between the formulation of the December 2010 and March 2011
IEPs, and that the March 2011 IEP carried over the goals and
objectives related to improving K.T.’s communicative skills,
which we have already sustained, we continue to find that these
goals and objectives were appropriate.
Accordingly, because (1) the March 2011 IEP failed to
provide procedures toward meeting important goals such as any
related to K.T.’s physical therapy needs and improving his pica,
that is, it failed to provide these goals at all in the IEP, (2)
41
omitted, without explanation, various goals related to K.T.’s
occupational therapy needs, and (3) failed to indicate the
frequency with which K.T.’s progress in reaching his goals
would be reported during the school year, this constituted a
procedural violation of the IDEA. Although the IEP was wanting
of any goals related to K.T.’s physical therapy needs, because he
continued to receive weekly and individual physical therapy
related services under the terms of the IEP and therefore was not
deprived of physical therapy services for the 2011–2012 school
year, we conclude that K.T. was not deprived of a FAPE as a
result of these procedural errors.
E. Parental Counseling and Training
Next, L.O. argues that the DOE’s failure to provide for
parental counseling and training in each of K.T.’s IEPs denied
K.T. a FAPE. For educational programs for students with autism,
New York requires that an IEP include a “[p]rovision . . . for
parent counseling and training . . . for the purpose of enabling
parents to perform appropriate follow‐up intervention activities
at home.” N.Y. Comp. Codes R. & Regs. tit. 8, § 200.13(d). The
purpose of this provision is 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].” Id. § 200.1(kk). We have
repeatedly held, however, 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].” See M.W., 725 F.3d at 141 (internal quotation marks
omitted); see also R.E., 694 F.3d at 191 (“[T]he failure to include
parent counseling in the IEP is less serious than [other
procedural violations].”). “Moreover, because school districts are
42
required . . . to provide parent counseling, they remain
accountable for their failure to do so no matter the contents of
the IEP.” R.E., 694 F.3d at 191 (citing N.Y. Comp. Codes R. &
Regs. tit. 8, § 200.13(d)). Further, where, as here, the parent
enrolls his or her child in the proposed IEP placement, the
“[p]arent[] can file a complaint at any time if they feel they are
not receiving this service” to rectify the error committed during
the drafting of the IEP. Id.
Here, the SRO found that each IEP lacked provisions for
parental counseling and training and thus violated New York
law, which required that such services be provided for in the
IEP. The DOE, however, provided evidence that parental
services were available at K.T.’s school in the form of monthly
family nights and parent workshops, of which L.O. was aware.
The SRO, however, refused to consider this evidence because it
constituted retrospective evidence and thus could not be used to
rehabilitate the IEP. It further noted that, in any event, these
services were “general in nature” and not narrowly tailored to
K.T.’s severe disabilities. See App. 59. Nonetheless, the SRO
concluded that the omission of parental counseling and training
in the IEPs did not amount to a denial of a FAPE for K.T.
We defer to the SRO’s analysis and find that L.O. has
failed to specify how the omission of parental training and
counseling in K.T.’s IEPs deprived him of a FAPE. We add only
one further comment, which is that our retrospective testimony
bar should not have prevented the SRO from considering the
counseling and training services available to parents at K.T.’s
school as part of its determination. “Because New York requires
these counseling and training services to be provided even if not
listed in an IEP, testimony that such training would be provided
does not propose to modify an IEP in such a way as to warrant
application of our retrospective testimony bar.” F.L. ex rel. F.L. v.
43
N.Y.C. Dep’t of Educ., 553 F. App’x 2, 7 n.3 (2d Cir. 2014)
(summary order).17 Thus, while its absence in the IEPs
constitutes a violation of the procedures of the IDEA, evidence
that K.T.’s school actually offered parental counseling and
training services could be considered as part of the evaluation of
whether the procedural violation deprived him of a FAPE.
F. Cumulative Effect
We 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.” R.E., 694 F.3d
at 190. The District Court concluded, despite finding multiple
procedural violations, that these errors, together, did not deny
K.T. a FAPE. We disagree and find that, at a minimum, the
errors we have identified in each IEP cumulatively resulted in a
denial of a FAPE for K.T. for the 2009–2010, 2010–2011, and
2011–2012 school years.
There were four procedural violations present in each of
the three IEPs, three of which we identified as serious errors in
formulating K.T.’s public school program. First, there was no
record evidence that the CSE reviewed any evaluative materials
in developing any of K.T.’s IEPs. This was a clear violation of the
IDEA and its implementing regulations, and it raised serious
questions about the CSE’s review of K.T.’s needs and the
adequacy of its determinations in reaching the terms of the IEPs.
See 20 U.S.C. § 1414(c)(1)(A); 34 C.F.R. § 300.324(a)(1)(iii).
Second, the CSE failed to conduct an FBA for any of the IEPs,
17 “[D]enying summary orders precedential effect does not mean that
the court considers itself free to rule differently in similar cases.”
Jackler v. Byrne, 658 F.3d 225, 244 (2d Cir. 2011) (internal quotation
marks omitted).
44
despite finding that K.T. possessed behaviors that interfered
with learning, which this Court has previously found to
constitute “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. Indeed, that is
the case here, as this failure resulted in the omission of “global
and specific hypotheses as to why [K.T.’s] problem behavior[s]
occur[red],” which are minimum requirements under the law.
See N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(mmm). In other
words, the CSE, in formulating K.T.’s IEPs, developed BIPs
without the results of an FBA, and thus never attempted to
address the root causes of K.T.’s interfering behaviors, thereby
casting doubt on the adequacy of its provisions for treating
them. See id. Third, each IEP provided K.T. with insufficiently
frequent weekly speech‐language instruction in an inappropriate
class size. The December 2009 instruction violated the plain
language of the New York speech‐language provision for autistic
students then in effect. See N.Y. Comp. Codes R. & Regs. tit. 8,
§ 200.13(a)(4) (amended Dec. 8, 2010). In connection with this
holding, based on the hearing record, we observed that K.T.’s
verbal communication skills were not improving under these
services in prior IEPs and found that the continuation of these
same services in subsequent IEPs (i.e., the December 2010 and
March 2011 IEPs) was not reasonably calculated to improve
K.T.’s speech and ability to communicate, which is an integral
component of a child’s education. Fourth, although a lesser
violation, no parental counseling and training was provided for
in any of the IEPs, which is a violation of New York law. See N.Y.
Comp. Codes R. & Regs. tit. 8, § 200.13(d).
We also found additional isolated deficiencies in the IEPs,
including the omission of any annual goals or short‐term
45
objectives related to addressing K.T.’s pica in the December 2010
and March 2011 IEPs, despite record evidence that K.T.
continued to suffer from this condition, a violation of the IDEA’s
procedures. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); N.Y. Comp.
Codes R. & Regs. tit. 8, § 200.4(d)(2)(iii). Further, in addition to
the absence of an FBA, no BIP was developed in accordance with
the terms of the March 2011 IEP and as required by law, further
undermining the SRO’s conclusion that K.T.’s interfering
behaviors were adequately addressed in the IEP. See N.Y. Comp.
Codes R. & Regs. tit. 8, § 200.22(b). Moreover, no annual goals or
short‐term objectives were included in the March 2011 IEP
related to K.T.’s physical therapy needs—despite their inclusion
in his IEP just three months earlier and without any record
evidence suggesting that his physical therapy needs had
dissipated or somehow changed between the formulation of his
IEPs in December 2010 and March 2011—and no provision was
made indicating the frequency with which K.T.’s progress in
reaching any of his goals would be reporting during the school
year. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); N.Y. Comp. Codes R. &
Regs. tit. 8, § 200.4(d)(2)(iii)(b). Indeed, we are left to wonder
whether these persistent errors and omissions in developing
K.T.’s IEPs are the result of the CSE’s failure to consult the
evaluative materials available to it at the time.
There is no doubt that these procedural violations in
formulating each IEP, when taken together, deprived K.T. of a
FAPE for each school year.18 The DOE displayed a pattern of
indifference to the procedural requirements of the IDEA and
Because we conclude that these violations cumulatively deprived
18
K.T. of a FAPE for the 2009–2010, 2010–2011, and 2011–2012 school
years, we express no view as to whether any of these violations, when
considered individually, amount to a denial of a FAPE.
46
carelessness in formulating K.T.’s IEPs over the period of many
years, repeatedly violating its obligations under the statute,
which consequently resulted in the deprivation of important
educational benefits to which K.T. was entitled by law. See R.E.,
694 F.3d at 194. The District Court denied L.O. relief on the basis
that the deficiencies identified in the IEPs were “more formal
than substantive.” L.O. 94 F. Supp. 3d at 571 (internal quotation
marks omitted). We have explained, however, that “[t]he initial
procedural inquiry in an IDEA case ‘is no mere formality,’ as
‘adequate compliance with the procedures prescribed would in
most cases assure much if not all of what Congress wished in the
way of substantive content in an IEP.’” A.C., 553 F.3d at 172
(quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129
(2d Cir. 1998)). Accordingly, we reverse the judgment of the
District Court and remand the case for further proceedings.
II. RELIEF
Last, we turn to the issue of relief. Under the IDEA, “a
handicapped child does not have a right to demand public
education beyond the age of twenty‐one.” Burr v. Ambach, 863
F.2d 1071, 1078 (2d Cir. 1988), vacated on other grounds sub nom.
Sobol v. Burr, 492 U.S. 902 (1989), reaff’d, 888 F.2d 258 (2d Cir.
1989). Here, L.O. retrospectively challenges the adequacy of the
public school placement K.T. attended for three years, claiming
that it did not provide him with a FAPE. In doing so, however,
L.O. seeks relief that would undoubtedly extend beyond K.T.’s
twenty‐first birthday.19
We are directed by statute that, “[i]n any action brought
under the IDEA, the court ‘shall grant such relief as the court
As noted, K.T. will celebrate his twenty‐first birthday on October 23,
19
2016.
47
determines is appropriate.’” Doe v. E. Lyme Bd. of Educ., 790 F.3d
440, 454 (2d Cir. 2015) (quoting 20 U.S.C. § 1415(i)(2)(C)(iii)), cert.
denied, No. 15‐1159, 2016 WL 1059911 (U.S. May 16, 2016). Courts
retain broad discretion in fashioning an award, restrained only
by the Supreme Court’s directive that “the relief is to be
‘appropriate’ in light of the purpose of the Act.” Sch. Comm. of
Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359,
369 (1985); see also Doe, 790 F.3d at 454. The Supreme Court has
held that “equitable considerations are relevant in fashioning
relief” in any IDEA action. See Burlington, 471 U.S. at 374; see also
Doe, 790 F.3d at 454. Further, although “[a]n award of damages
is not available, . . . a court may award various forms of
retroactive and prospective equitable relief, including
reimbursement of tuition, compensatory education, and other
declaratory and injunctive remedies.” Doe, 790 F.3d at 454 (citing
Burlington, 471 U.S. at 369; Polera v. Bd. of Educ. of Newburgh
Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002)). The
parties contest what relief, if any, is available to L.O. under the
unusual circumstances of this case. Neither the District Court
nor either administrative officer, however, reached this question
below. Accordingly, on remand, the District Court is directed to
consider, in the first instance, what, if any, relief L.O. is entitled
to as an award for K.T.’s FAPE deprivations for the 2009–2010,
2010–2011, and 2011–2012 school years. In doing so, “[w]e leave
the mechanics of structuring the compensatory education award
to the [D]istrict [C]ourt’s sound equitable discretion, although
the court may wish to consult remedies that we have endorsed
in the past.” Id. at 457.
48
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 REVERSED and the case is
REMANDED for further proceedings consistent with this
opinion.
49
