11-3525 (L)
P.K. & T.K. v. New York City Dep’t of Educ.



                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE
PROCEDURE 32.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



       At a stated Term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 21st day of May, two thousand thirteen.

Present:       JOSÉ A. CABRANES,
               ROBERT D. SACK,
               SUSAN L. CARNEY,
                       Circuit Judges.

______________________________________________________
                                                          |
P.K. and T.K., on behalf of S.K.,                         |
                                                          |
                   Plaintiffs-Appellees-Cross-Appellants, |
                                                          |
                     v.                                   |                   Nos. 11-3525(L),
                                                          |                   11- 3633(XAP)
                                                          |
New York City Department of Education, (Region 4),        |
                                                          |
                   Defendant-Appellant-Cross-Appellee. |
______________________________________________________|


Appearing for Plaintiffs-Appellees-Cross-Appellants:   GARY S. MAYERSON (Tracey Spencer Walsh,
                                                       Maria C. McGinley, on the brief), Mayerson &
                                                       Associates, New York, N.Y.

Appearing for Defendant-Appellant-Cross-Appellee:      JANE L. GORDON (Edward F.X. Hart, Lesley
                                                       Berson Mbaye, on the brief), for Michael A.
                                                       Cardozo, Corporation Counsel of the City of
                                                       New York, New York, N.Y.
             Appeal from the United States District Court for the Eastern District

of New York (Sterling Johnson, Judge), ON CONSIDERATION WHEREOF, it is

hereby ORDERED, ADJUDGED, and DECREED that the judgment of the District

Court be and it hereby is AFFIRMED.

             Defendant-appellant New York City Department of Education (Region

4) (the “Department”) appeals from the district court’s award of summary judgment

in favor of plaintiffs, P.K. and T.K., on their claims (1) alleging that the Department

denied their disabled child, S.K., a free appropriate public education (“FAPE”) in

violation of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.     §§

1400 et seq.; and (2) seeking reimbursement for the cost of private school tuition for

the 2008-2009 school year. We assume the parties’ familiarity with the underlying

facts, the procedural history, and the issues on appeal, to which we refer only as

necessary to explain our decision.

      I. Background

             S.K. was born in October 2003. In May 2006, she was diagnosed with

autism. During the 2007-2008 school year, S.K. attended preschool at the

Interdisciplinary Center for Child Development in Queens. There, she was placed

in an 8:1:3 classroom (meaning that the classroom-staffing profile was eight

students assigned to one teacher and three classroom aides). She also received

individualized speech and language therapy at school. Outside of school, S.K.




                                          2
received state-funded 1:1 “Applied Behavioral Analysis” (“ABA”) therapy for ten

hours every week.1

              On March 31, 2008, a Department Committee on Special Education

(“CSE”) met to develop, pursuant to the IDEA, see 20 U.S.C. § 1412(a)(1)(A), an

individualized education plan (“IEP”) for S.K. for the 2008-2009 school year – when

she would be entering kindergarten. Among other things, S.K.’s IEP provided that

she would attend a 6:1:1 classroom. The IEP also provided that S.K. would receive

(1) three, thirty-minute sessions weekly of individual occupational therapy, and (2)

three, thirty-minute sessions weekly of language and speech therapy, conducted in

a group setting. The IEP did not provide for ABA therapy; nor did it provide for any

individualized instruction or therapy of any type, aside from occupational therapy

as a related service.2 Dissatisfied with the IEP, S.K.’s parents decided to enroll her

in a private school that, among other things, employed ABA therapy.

              On May 12, 2008, P.K. and T.K. filed a formal “Demand for Due

Process” to challenge the adequacy of S.K.’s IEP. See 20 U.S.C. § 1415(f)

(describing parents’ right to an “impartial due process hearing”). In the demand,

S.K.’s parents asserted that S.K.’s IEP was both substantively and procedurally

       1
         ABA is an “intensive one-on-one therapy that involves breaking down activities
into discrete tasks and rewarding a child’s accomplishments.” R.E. v. New York City Dep’t
of Educ., 

, 176 (2d Cir. 2012) (internal quotation marks omitted). ABA
instructors “use[ ] careful behavioral observation and positive reinforcement or prompting
to teach each step of a[n appropriate] behavior.” M.H. v. New York City Dep’t of Educ., 

, 226 n.5 (2d Cir. 2012) (internal quotation marks omitted).
       2
         The IDEA defines “related services” as “developmental, corrective, and other
supportive services . . . as may be required to assist a child with a disability to benefit from
special education. . . .” 20 U.S.C. § 1401(26).



                                               3
inadequate, and that equitable considerations counseled in favor of a full

reimbursement by the school district for the anticipated cost of S.K.’s private school

tuition for 2008-2009.

              The parents’ claims were first considered by an Impartial Hearing

Officer (“IHO”),3 who was appointed by the Department. See M.H., 685 F.3d at 224.

The IHO concluded that the Department failed to establish that S.K. was provided

a FAPE. To support this conclusion, the IHO pointed primarily to the following

perceived shortcomings of the IEP: (1) the Department’s failure to order appropriate

speech and language therapy in accordance with state regulations; (2) the IEP’s

failure to provide sufficient parent training and counseling in accordance with state

regulations; and (3) the Department’s failure to develop a Functional Behavioral

Assessment (“FBA”) and resulting Behavior Intervention Plan (“BIP”) despite S.K.’s

interfering behaviors.4

              The Department appealed to the State Review Officer (“SRO”), who

reversed the IHO’s decision. First, the SRO concluded that S.K. would receive

sufficient speech and language therapy to provide her a FAPE in the proposed

placement. Although he acknowledged that the IEP offered only three, thirty-


       3
         The IHO is the hearing officer who presides at the IDEA-mandated “impartial due
process hearing,” 20 U.S.C. § 1415(i)(2)(A), hosted by the local district – in this case, the
New York City Department of Education. In New York State, the IHO’s decision may be
appealed to a State Review Officer. M.H., 685 F.3d at 224.
       4
         An FBA involves a determination of “why the student engages in behaviors that
impede learning and how the student’s behavior relates to the environment.” 8 N.Y.C.R.R.
§ 200.1(r). A BIP is a “plan that is based on the results of a[n FBA] and, at a minimum,
includes 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.” Id. § 200.1(mmm).

                                             4
minute sessions of speech and language therapy weekly in a group setting, contrary

to regulations then in place requiring “instructional services . . . 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,”

Joint Appendix (“J.A.”) at 671 (quoting 8 N.Y.C.R.R. § 200.13(a)(4) (2007)), he

observed that the teacher at the proposed placement school testified she provided

frequent individual language instruction in the form of gestures, picture symbols,

and sign language, supplementing the program described by the IEP. Additionally,

the SRO noted, “the CSE felt five [speech and language therapy sessions weekly]

would be too much [time] out of the classroom so [the CSE] offered three [sessions

weekly], which they felt could address [S.K.’s] needs given the fact that she would

be in the classroom also increasing her communication skills.” J.A. 671-72 (internal

quotation marks and brackets omitted). The SRO concluded that “[u]nder the

circumstances, although not specifically delineated on the student’s IEP, as a whole,

the hearing record reflects that the student’s program, including specific speech-

language therapy and in-class language instruction, were appropriate to meet the

student’s individual speech-language and communication needs.” Id. at 672.

             Second, the SRO determined that the “program recommended by the

. . . CSE provided for adequate parent counseling and training.” Id. He

acknowledged that “parent counseling and training was not specifically set forth in

the . . . IEP,” although required by New York regulations. Id. at 673. Nonetheless,

based on testimony from the Department’s “unit coordinator” that the recommended

school “had a six-week parent training program that addressed behavior,” an active


                                           5
Parent Teacher Association, and parent and sibling support groups, the SRO found

that the Department’s “failure to include [parent counseling and training] on the

IEP[,] did not procedurally or substantively[] result in the denial of a FAPE.” Id. at

672-73.

             Third, as for the omission of an FBA and BIP from the IEP, the SRO

found “no persuasive evidence in the hearing record that the student demonstrated

a need for either an FBA or a BIP.” Id. at 670.

             On April 9, 2009, S.K.’s parents filed a complaint in the United States

District Court for the Eastern District of New York seeking relief from the SRO’s

decision. See 20 U.S.C. § 1415(i)(2)(A) (providing that any party aggrieved by a

decision may challenge the decision in state or federal court).

             Upon review of the record and arguments, Chief Magistrate Judge

Gold recommended that the district court hold, inter alia, that the IEP did not

provide S.K. with a FAPE. See P.K. ex rel. S.K. v. N.Y.C. Dep’t of Educ. (Region 4),

 (E.D.N.Y. 2011). The Magistrate Judge deferred to the SRO’s

determination that S.K. did not require an FBA, id. at 107-08, but found the IEP

inadequate nonetheless because of (1) its failure to provide adequate speech therapy

and parent training, and (2) its termination of ABA therapy, which neither the IHO

nor the SRO had addressed expressly, id. at 108-15. The Magistrate Judge noted

that “the evidence demonstrates that S.K. required substantial related services and

greater individualized attention in order to make meaningful progress and receive

an educational benefit from her schooling.” Id. at 111.




                                          6
              The district court adopted the Magistrate Judge’s recommendations in

full. Id. at 95-96.

       II. Intervening Change in Law

              In the interim between the issuance of the district court’s decision and

the present appeal, we decided two cases that bear upon our resolution of this case.

See R.E. v. N.Y.C. Dep’t of Educ., 

 (2d Cir. 2012); M.H. v. N.Y.C. Dep’t

of Educ., 

 (2d Cir. 2012).

              In M.H., we emphasized that federal courts reviewing administrative

decisions in the IDEA context “must give due weight to these proceedings, mindful

that the judiciary generally lacks the specialized knowledge and experience

necessary to resolve persistent and difficult questions of educational policy.” 685

F.3d at 240 (internal quotation marks omitted). We explained that our review of

state administrative decisions “requires a more critical appraisal of the agency

determination than clear-error review[,] but nevertheless falls well short of

complete de novo review. In the course of this oversight, the persuasiveness of a

particular administrative finding, or the lack thereof, is likely to tell the tale.” Id.

at 244 (internal quotation marks and alterations omitted).

              We also explained that where, as here, the SRO and IHO disagree,

“reviewing courts are not entitled to adopt the conclusions of either state reviewer

according to their own policy preferences or views of the evidence; courts must defer

to the reasoned conclusions of the SRO as the final state administrative

determination.” Id. at 246. But in cases where “the SRO’s determinations are

insufficiently reasoned to merit that deference . . . it is entirely appropriate for the


                                            7
court . . . to consider the IHO’s analysis, which is . . . informed by greater

educational expertise than that of judges.” Id.

              Three months after our decision in M.H., we addressed in R.E. the

appropriateness of considering “retrospective testimony” in evaluating whether an

IEP provides a FAPE. R.E., 694 F.3d at 174. Retrospective testimony is “testimony

that certain services not listed in the IEP would actually have been provided to the

child if he or she had attended the school district’s proposed placement.” Id. at 185.

We adopted “the majority view that the 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 in a Burlington/Carter proceeding.”5 Id. at 186 (emphasis added).

This view rests on the recognition that “parents must have sufficient information

about the IEP to make an informed decision as to its adequacy prior to making a

placement decision.” Id. At the same time, we elaborated that,“[w]hile testimony

that materially alters the written plan is not permitted, testimony may be received

that explains or justifies the services listed in the IEP.” Id.




       5
         “Under New York [law], the local school board bears the initial burden of
establishing the validity of its plan at a due process hearing. If the board fails to carry this
burden, the parents bear the burden of establishing the appropriateness of their private
placement and that the equities favor them. This framework is known as the
Burlington/Carter test.” R.E., 694 F.3d at 184-85 (internal citations omitted).

                                               8
       III. Analysis

              Applying these principles to the case before us, we conclude – without

regard to educational method – that the IEP was substantively inadequate because

it failed to provide sufficient 1:1 instruction.6

              The IEP’s inadequacy in this regard is particularly stark when

considering its provision of speech and language therapy. The IEP provided that

S.K. would receive only three thirty-minute speech therapy sessions in groups of

three every week, in clear violation of then-applicable state regulations requiring

that autistic children receive speech therapy “for a minimum of 30 minutes daily in

groups not to exceed two, or 60 minutes daily in groups not to exceed six.” See 8

N.Y.C.R.R. § 200.13 (a)(4) (2007). The SRO also did not point to any evidence in

the record to support his position that S.K. could continue to progress without at




       6
           The Department argues that plaintiffs have not exhausted their claim that the
IEP provided insufficient 1:1 services. This flaw in the IEP, however, was fairly identified
by plaintiffs in their due process complaint, which listed ten specific problems with S.K.’s
IEP for the 2008-2009 school year. The failure to provide sufficient 1:1 services is not
among the concerns specifically enumerated by plaintiffs, but the list alleges that “[t]he
related speech and language therapy offered to [S.K.] is not sufficient” and, in broad
language, that the District “impermissibly followed district ‘policy’ and administrative
convenience in denying [S.K.]” a FAPE, J.A. 443 – phrases that we think, fairly read along
with the rest of the complaint, encompass the parents’ concern about the adequacy of the
IEP’s provision for individual care. Moreover, the due process complaint urges that S.K. be
provided with 1:1 ABA services as a “proposed solution” to the denial of a FAPE. Id. at 444.
The statutory language providing that “[t]he party requesting the due process hearing shall
not be allowed to raise issues at the due process hearing that were not raised in the notice,”
20 U.S.C. § 1415(f)(3)(B), allows parties to argue that an IEP was inadequate for any reason
that is raised in the complaint. The statute does not require that these reasons be spelled
out in a specific section of the complaint when they are clearly raised elsewhere – for
example, in this case, in the section discussing remedies for the alleged denial of a FAPE.
In fact, generally, “the same considerations and criteria that apply in determining whether
the School District’s placement is appropriate should be considered in determining the
appropriateness of the parents’ placement [for the child].” Frank G. v. Bd. of Educ. of Hyde
Park, 

, 364 (2d Cir. 2006).

                                              9
least some 1:1 speech and language therapy. To the contrary, the record contains

evidence that this was precisely what S.K. required to progress.7

              Moreover, much 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 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.

              Once retrospective testimony is removed from the balance, the

“preponderance of the evidence,” 20 U.S.C. § 1415(i)(2)(C)(iii), supports the

conclusion that S.K.’s IEP was insufficient because it failed to provide “special

education and related services . . . reasonably calculated to enable the child to


       7
         In February 2008, the McCarton Center for Developmental Pediatrics concluded
that S.K.’s “overall communication skills [were] low,” J.A. 493, and recommended
“[s]peech/language therapy 5x 60 minutes weekly (1:1).” J.A. 495. The speech therapist
who provided S.K. with 1:1 speech therapy three times a week during S.K.’s preschool
education noted that S.K. benefitted from “repetition, visual cues and verbal prompts to
facilitate her speech and language development,” J.A. 510, and recommended “speech and
language intervention 3 times weekly in a 1:1 ratio,” J.A. 512. The CSE charged with
crafting S.K.’s IEP had access to all of this evidence but decided, nonetheless, that group
speech therapy would suffice.

                                             10
receive educational benefits,” Gagliardo v. Arlington Cent. Sch. Dist., 

,

107 (2d Cir. 2007) (internal quotation marks omitted).8 Furthermore, substantially

for the reasons stated in the Magistrate Judge’s Report and Recommendation, we

conclude that the parents’ proposed placement for S.K. was appropriate and that

the equities favor full tuition reimbursement. P.K., 819 F. Supp. 2d at 115-18.

              We have considered the Department’s remaining arguments and find

them to be without merit. Accordingly, the judgment of the district court is

AFFIRMED. Plaintiffs’ cross-appeal is DISMISSED.



                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




       8
         As discussed by the Magistrate Judge, the IEP’s failure to provide adequate 1:1
services extended outside the related-services realm. S.K.’s mother, S.K.’s speech therapist,
and the experts from the McCarton Center emphasized S.K.’s need for individualized care
in testimony and documents submitted to the IHO. Even the school psychologist consulting
on S.K.’s CSE testified that expert opinion as to S.K.’s need for more one-to-one speech
therapy than provided in the IEP was a “very strong consideration,” J.A. 387, and agreed
that S.K. “at least needed to have some meaningful level of 1:1 instruction during the day,”
J.A. 392. Nonetheless, the IEP did not specify that S.K. would receive any individualized
therapy, aside from occupational therapy provided as a related service. As we held in R.E.,
S.K.’s parents were entitled to rely on the IEP’s characterization of the services available to
S.K. in deciding whether to place S.K. in a private school setting. In fact, the absence of
sufficient 1:1 care in S.K.’s proposed placement was cited by S.K.’s mother as one of the
most important considerations in deciding to enroll her in a private school.

                                              11