ca2|M.H. & E.K. o/b/o P.H. M.S. & L.S. o/b/o of D.S. v. NYC ... -- eLawyers

Filed: Jun. 29, 2012
Latest Update: Feb. 12, 2020

Summary: 10-2181-cv, 10-2418-cv M.H. & E.K. o/b/o P.H.; M.S. & L.S. o/b/o of D.S. v. NYC Dep’t of Education 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2010 4 (Argued: April 25, 2011 Decided: June 29, 2012) 5 - 6 M.H. AND E.K. individually and collectively on behalf of P.H., 7 Plaintiffs-Appellees, 8 - v - Docket No. 10-2181 9 New York City Department of Education, 10 Defendant-Appellant. 11 - 12 M.S. individually, M.S., collectively and on behalf of D.S., 13 L.S., individual

     10-2181-cv, 10-2418-cv
     M.H. & E.K. o/b/o P.H.; M.S. & L.S. o/b/o of D.S. v. NYC Dep’t of Education



 1                        UNITED STATES COURT OF APPEALS

 2                            FOR THE SECOND CIRCUIT

 3                               August Term, 2010

 4   (Argued: April 25, 2011                           Decided: June 29, 2012)

 5   -------------------------------------

 6   M.H. AND E.K. individually and collectively on behalf of P.H.,

 7   Plaintiffs-Appellees,

 8   - v -                                                   Docket No. 10-2181

 9   New York City Department of Education,

10   Defendant-Appellant.

11   -------------------------------------

12   M.S. individually, M.S., collectively and on behalf of D.S.,
13   L.S., individually, L.S., collectively and on behalf of D.S.,

14   Plaintiffs-Appellants,

15   - v -                                                   Docket No. 10-2418
16
17   New York City Department of Education,


18   Defendant-Appellee.

19   -------------------------------------

20   Before:     SACK, LIVINGSTON, and LYNCH, Circuit Judges.

21               Appeals from opinions and orders in two different cases

22   decided in the United States District Court for the Southern

23   District of New York (Loretta A. Preska, Chief Judge, and Lewis

24   A. Kaplan, Judge, respectively), granting, in M.H., the
 1   plaintiffs' motion for summary judgment and, in M.S., the New

 2   York City Department of Education's motion for summary judgment.

 3   The plaintiffs in both cases are the parents of disabled children

 4   who challenged the procedural and substantive adequacy of the

 5   Individualized Education Plans that the defendant, New York City

 6   Department of Education, had developed for the plaintiffs'

 7   children pursuant to the Individuals with Disabilities Education

 8   Act, 20 U.S.C. § 1400 et seq.     The plaintiffs also sought

 9   reimbursement of funds spent on private-school tuition for their

10   children.

11               In M.H., we conclude that the district court properly

12   agreed with the determinations of the Impartial Hearing Officer

13   who initially considered the matter in the State's administrative

14   scheme, and properly rejected the subsequent determinations of

15   the State Review Officer.    In M.S., although we conclude that the

16   magistrate judge -- who recommended granting the Department's

17   motion for summary judgment -- overstated the extent to which

18   federal courts must defer to the findings of state administrative

19   officers, we conclude that the Department's motion was properly

20   granted.

21               Affirmed.

22                               JULIE STEINER (G. Christopher Harriss,
23                               Stephen J. McGrath, Andrew Rauchberg, of
24                               counsel, on the brief), on behalf of
25                               Michael A. Cardozo, Corporation Counsel
26                               of the City of New York, New York, New


                                        2
 1                            York, for Defendant-Appellant New York
 2                            City Department of Education.
 3
 4                            JESSE COLE CUTLER (Samantha Bernstein,
 5                            on the brief), Skyer and Associates,
 6                            L.L.P., New York, New York, for
 7                            Plaintiffs-Appellees M.H. and E.K on
 8                            behalf of P.H.; for Plaintiffs-
 9                            Appellants M.S. and L.S. individually
10                            and collectively on behalf of D.S..


11   SACK, Circuit Judge:

12                              BACKGROUND

13             Both of these appeals, which we heard in tandem,

14   concern the proper interpretation of the Individuals with

15   Disabilities Education Act ("IDEA"),1 20 U.S.C. § 1400 et seq.

16   They each involve unique facts which must therefore be set out in

17   considerable detail in order to address the legal issues they




     1
      Glossary of Acronyms: This opinion, dealing as it does with
     the IDEA and practices thereunder, is replete with acronyms. In
     addition to their definition in the text, a separate glossary of
     acronyms is therefore set forth in the Appendix to this opinion.
     Cf. Nat'l Assoc. of Regulatory Util. Comm'rs v. U.S. Dep't of
     Energy, Nos. 11-1066, 11-1068, --- F.3d ---,

2012 WL 1957942

, at
     *6, n.1,

2012 U.S. App. LEXIS 11044

, at *3, n.1 (D.C. Cir. June
     1, 2012) (Silberman, J.) (referring to court's Handbook of
     Practice and Internal Procedures' statement that "'parties are
     strongly urged to limit the use of acronyms' and 'should avoid
     using acronyms that are not widely known.'" "Brief-writing, no
     less than 'written English, is full of bad habits which spread by
     imitation and which can be avoided if one is willing to take the
     necessary trouble.' George Orwell, 'Politics and the English
     Language,' 13 Horizon 76 (1946). Here, both parties abandoned
     any attempt to write in plain English, instead abbreviating every
     conceivable agency and statute involved, familiar or
     not . . . .").

                                     3
 1   raise.2   The cases both require us to address the manner in which

 2   the federal courts must go about their IDEA-mandated review of

 3   state administrative decisions.

 4              The IDEA

 5              Congress enacted the IDEA "to ensure that all children

 6   with disabilities have available to them a free appropriate

 7   public education . . . designed to meet their unique needs . . .

 8   [and] to ensure that the rights of children with disabilities and

 9   parents of such children are protected."    20 U.S.C.

10   § 1400(d)(1)(A)-(B); see also Forest Grove Sch. Dist. v. T.A.,

11

557 U.S. 230

, 247 (2009) (concluding that a court could award

12   private-school-tuition reimbursement to the parents of disabled

13   children not provided a "Free Appropriate Public Education").

14   "The IDEA offers federal funds to states that develop plans to

15   assure 'all children with disabilities' [residing in each such

16   state] a 'free appropriate public education,' 20 U.S.C.

17   § 1412(a)(1)(A)."     Grim v. Rhinebeck Cent. Sch. Dist.,

346 F.3d 18

  377, 379 (2d Cir. 2003).




     2
       Factual complexity is not an unusual feature of IDEA appeals.
     See, e.g., Walczak v. Fla. Union Free Sch. Dist.,

142 F.3d 119

,
     123-29 (2d Cir. 1998) (describing the complex factual history of
     a case involving a child challenging an IEP who had been
     diagnosed with, among other things, "Minimal Brain Dysfunction
     syndrome with an attention deficit disorder and hyperactivity,
     developmental language disorder, a mild to moderate separation
     anxiety disorder, and obsessive compulsive disorder, and
     Tourette's Syndrome .").

                                        4
 1                "To meet [the IDEA's] requirements, a school district's

 2   program must provide 'special education and related services[,]'

 3   [20 U.S.C. § 1401(9)], tailored to meet the unique needs of a

 4   particular child, and be reasonably calculated to enable the

 5   child to receive educational benefits."    Gagliardo v. Arlington

 6   Cent. Sch. Dist.,

489 F.3d 105

, 107 (2d Cir. 2007) (some internal

 7   quotation marks omitted); see also

Grim, 346 F.3d at 379

 8   (similar).    These services "must be administered according to an

 9   'individualized education program' . . . , which school districts

10   must implement each year for each student with a disability."

11

Id. (quoting 20 U.S.C.

§ 1414(d)).

12                An individualized education program ("IEP") is "a

13   written statement that 'sets out the child's present educational

14   performance, establishes annual and short-term objectives for

15   improvements in that performance, and describes the specially

16   designed instruction and services that will enable the child to

17   meet those objectives.'"    D.D. ex rel. V.D. v. N.Y.C. Bd. of

18   Educ.,

465 F.3d 503

, 507-08 (2d Cir. 2006) (quoting Honig v. Doe,

19

484 U.S. 305

, 311 (1988)), amended on other grounds,

480 F.3d 138

20   (2d Cir. 2007).    Under the IDEA, for a child's IEP to be

21   adequate, it must be "[']likely to produce progress, not

22   regression, and [must] . . . afford[] the student with an

23   opportunity greater than mere trivial advancement.'"    T.P. ex

24   rel. S.P. v. Mamaroneck Union Free Sch. Dist.,

554 F.3d 247

, 254


                                        5
 1   (2d Cir. 2009) (quoting Cerra v. Pawling Cent. Sch. Dist., 427

2 F.3d 186

, 195 (2d Cir. 2005)).    However, it need "not . . .

 3   furnish every special service necessary to maximize each

 4   handicapped child's potential."

Grim, 346 F.3d at 379

(quoting

 5   Bd. of Educ. v. Rowley,

458 U.S. 176

, 199 (1982)) (brackets,

 6   ellipsis, and internal quotation marks omitted).    Under an IEP,

 7   "education [must] be provided in the 'least restrictive setting

 8   consistent with a child's needs.'"

Id. (quoting Walczak, 142

 9   F.3d at 122 (2d Cir. 1998)).    The IEP is "[t]he centerpiece of

10   the IDEA's educational delivery system."    D.D. ex rel. V.D.,

465 11 F.3d at 507

(internal quotation marks omitted).

12                 "Since New York State receives federal funds under

13   IDEA, it is obliged to comply with the requirements of this law.

14   To meet these obligations and to implement its own policies

15   regarding the education of disabled children, the State has

16   assigned responsibility for developing appropriate IEPs to local

17   Committees on Special Education [('CSEs')], the members of which

18   are appointed by school boards or the trustees of school

19   districts."

Walczak, 142 F.3d at 123

(citing N.Y. Educ. Law

20   § 4402(1)(b)(1)).    "In developing a particular child's IEP, a CSE

21   is required to consider four factors: (1) academic achievement

22   and learning characteristics, (2) social development, (3)

23   physical development, and (4) managerial or behavioral needs."

24

Gagliardo, 489 F.3d at 107-08

(citing N.Y. Comp. Codes R. & Regs.


                                        6
 1   ("NYCCRR") tit. 8, § 200.1(ww)(3)(i)).    "[T]he CSE must also be

 2   mindful of the IDEA's strong preference for 'mainstreaming,' or

 3   educating children with disabilities '[t]o the maximum extent

 4   appropriate' alongside their non-disabled peers."

Id. at 108 5

  (citing 20 U.S.C. § 1412(a)(5)) (second set of brackets in

 6   original).

 7                If a New York parent "believe[s] an IEP is insufficient

 8   under the IDEA," he or she "may challenge it in an 'impartial due

 9   process hearing,' 20 U.S.C. § 1415(f), before an [Impartial

10   Hearing Officer, or 'IHO'] appointed by the local board of

11   education."

Grim, 346 F.3d at 379

(quoting N.Y. Educ. Law

12   § 4404(1)).    At the hearing before the IHO, "the school district

13   has the burden of demonstrating the appropriateness of its

14   proposed IEP."

Id. As the governing

New York State statute

15   explains:

16                The board of education or trustees of the
17                school district or the state agency
18                responsible for providing education to
19                students with disabilities shall have the
20                burden of proof, including the burden of
21                persuasion and burden of production, in any
22                such impartial hearing, except that a parent
23                or person in parental relation seeking
24                tuition reimbursement for a unilateral
25                parental placement shall have the burden of
26                persuasion and burden of production on the
27                appropriateness of such placement.
28




                                        7
1   N.Y. Educ. Law § 4404(1)(c).3   An IHO's decision may, in turn, be

2   appealed to a State Review Officer ("SRO"), who is an officer of

3   the State's Department of Education.

Grim, 346 F.3d at 379

-80.4


    3
       In Schaeffer ex rel. Schaeffer v. Weast,

546 U.S. 49

(2005),
    the Supreme Court concluded that the IDEA placed the burden of
    challenging an IEP on the party bringing the challenge.

Id. at 57-58. The

Court, however, left unanswered the question whether
    states could "override the default rule and put the burden always
    on the school district."

Id. at 61-62. Since

Schaeffer, New
    York has amended its statutory scheme to reallocate the burden to
    the District, even in cases where the parents are challenging the
    IEP. See W.T. v. Bd. of Educ. of School Dist. of N.Y.C., 716 F.
    Supp. 2d 270, 287 (S.D.N.Y. 2010). We need not, however, resolve
    the question the Supreme Court left open in Schaeffer -- whether
    the State has the power to override the IDEA burden scheme.
    Because the State Review Officers in the cases at bar concluded
    that the IEPs were proper, and the courts are bound to exhibit
    deference to that decision, the burden of demonstrating that the
    respective Review Officers erred is properly understood to fall
    on the plaintiffs. See

id. To the extent

that the district
    court in these cases, or this Court on review, must determine
    whether the state administrative decisions were supported by a
    preponderance of the evidence, which party bore the burden of
    persuasion in the state review scheme is only relevant if the
    evidence was in equipoise. See Nw. Mut. Life Ins. Co. v. Linard,

498 F.2d 556

, 560 (2d Cir. 1974); see also

Schaeffer, 546 U.S. at 58

("Petitioners also urge that putting the burden of persuasion
    on school districts will further IDEA's purposes because it will
    help ensure that children receive a free appropriate public
    education. In truth, however, very few cases will be in
    evidentiary equipoise."). That is not the situation here.
    4
       The overlapping roles of the State and the School District in
    IDEA cases in New York further complicate the confusing,
    alphabet-soup nature of IDEA cases brought in New York City .
    In New York, the School District -- here the defendant New York
    City Department of Education -- is responsible for complying with
    the IDEA. The School District also appoints the IHO, who is
    responsible for determining whether the School District has met
    its obligations under the IDEA.   If, however, either party is
    dissatisfied with the decision of the IHO, it may appeal the
    decision to the SRO, who, unlike the IHO, is appointed by the
    State's Education Department. See generally N.Y. Educ. Law.
    § 4404. In this opinion, we refer to the City's Department of

                                     8
 1               Generally, either "party aggrieved" by the findings of

 2   the SRO "shall have the right to bring a civil action" in either

 3   state or federal court.    20 U.S.C. § 1415(i)(2)(A).   When such an

 4   action is brought in federal district court, the court reviews

 5   the records of all of the prior administrative hearings and must

 6   hear additional evidence if so requested by either of the

 7   parties.

Id. at § 1415(i)(2)(c).

   The court typically considers

 8   the propriety of the IEP on the parties' cross motions for

 9   summary judgment.

10               However,

11               a motion for summary judgment in an IDEA case
12               often triggers more than an inquiry into
13               possible disputed issues of fact. Rather,
14               the motion serves as a pragmatic procedural
15               mechanism for reviewing a state's compliance
16               with the procedures set forth in [the] IDEA
17               [in developing the specific IEP at issue] and
18               determining whether the challenged IEP is
19               reasonably calculated to enable the child to
20               receive educational benefits.
21   Lillbask ex rel. Mauclaire v. State of Conn. Dep't of Educ., 397

22 F.3d 77

, 83 n.3 (2d Cir. 2005) (internal quotation marks

23   omitted).   "Though the parties in an IDEA action may call the

24   procedure 'a motion for summary judgment,' the procedure is in

25   substance an appeal from an administrative determination, not a

26   summary judgment [motion]."

Id. (ellipsis, brackets, and

27   citation omitted).     "[B]asing its decision on the preponderance



     Education as the "DOE" or the "School District." We refer to the
     State's Education Department as the "Education Department."

                                        9
 1   of the evidence, [the court is required to] grant such relief as

 2   the court determines is appropriate."   § 1415(i)(2)(C)(iii).

 3              In the separate proceedings consolidated for purposes

 4   of this appeal, the parent plaintiffs assert that the school

 5   districts serving their children, having failed to provide each

 6   of them with a free appropriate public education ("FAPE"), must

 7   reimburse the parents for the costs associated with sending these

 8   children to private schools for an appropriate education.

 9   Although these cases are similar to many IDEA cases in this

10   regard, see, e.g.,

Gagliardo, 489 F.3d at 106

, they inevitably

11   involve distinct facts and procedural histories.

12              M.H. Background

13              P.H., the son of M.H. and E.K., was born on October 11,

14   2001.   He is autistic.   During the 2006-07 school year, when P.H,

15   was of pre-school age, he attended a mainstream preschool.

16   Pursuant to a mandate of the Committee on Preschool Special

17   Education (the "CPSE") of the New York State Education

18   Department, he received Special Education Itinerant Teacher

19   ("SEIT") services on a one-to-one ("1:1") basis.   The SEIT worked

20   one-on-one with P.H. throughout the school day at P.H.'s home.

21   Plaintiffs' 56.1 Statement ¶¶ 2-3, M.H. v. N.Y.C. Dep't of Educ.,

22

712 F. Supp. 2d 125

(S.D.N.Y. 2010) (No. 09 Civ. 3657), ECF No.

23   13 ("Pls. 56.1 Stmt."); Defendants' 56.1 Response ¶¶ 2-3, M.H. v.

24   N.Y.C. Dep't of Educ.,

712 F. Supp. 2d 125

(S.D.N.Y. 2010) (No.


                                      10
 1   09 Civ. 3657), ECF No. 19 ("Def.'s 56.1 Resp.").    Pursuant to the

 2   CPSE mandate, P.H.'s SEITs were trained in Applied Behavior

 3   Analysis ("ABA")5 and provided at least 35 hours weekly of

 4   services using that approach.    Pls.' 56.1 Stmt. ¶¶ 2-3; Def.'s

 5   56.1 Resp. ¶¶ 2-3.

 6                In addition, P.H. received several related services

 7   weekly, including five 60-minute speech therapy sessions; three

 8   60-minute occupational therapy sessions; and two 60-minute

 9   physical therapy sessions.    Pls.' 56.1 Stmt. ¶ 4; Def.'s 56.1

10   Resp. ¶ 4.

11                The DOE's CSE convened a meeting on April 17, 2007, to

12   discuss P.H.'s educational program for the 2007-08 school year –



     5

                  ABA uses careful behavioral observation and
                  positive reinforcement or prompting to teach
                  each step of a behavior. A child's behavior
                  is reinforced with a reward when he or she
                  performs each of the steps correctly.
                  Undesirable behaviors, or those that
                  interfere with learning and social skills,
                  are watched closely. The goal is to
                  determine what happens to trigger a behavior,
                  and what happens after that behavior that
                  seems to reinforce the behavior. The idea is
                  to remove these triggers and reinforcers from
                  the child’s environment. New reinforcers are
                  then used to teach the child a different
                  behavior in response to the same trigger.
     Factsheet for Autism Therapy: Applied Behavior Analysis, HEALING
     THRESHOLDS (Nov. 5, 2009, last updated Dec. 21, 2009),
     http://autism.healingthresholds.com/therapy/applied-behavior-anal
     ysis-aba (footnotes and emphases omitted).


                                       11
 1   when P.H. would be in kindergarten -- and to formulate his IEP

 2   for that year.   Pls.' 56.1 Stmt. ¶ 5; Def.'s 56.1 Resp. ¶ 5.   The

 3   CSE comprised: (1) Giselle Jordan, a DOE representative and

 4   school psychologist who led the meeting; (2) P.H.'s SEIT; (3) a

 5   social worker; (4) a general education teacher; (5) a special

 6   education teacher; (6) P.H.'s parents; (7) an additional parent

 7   member of the CSE; and (8) the director of P.H.'s preschool

 8   program.   Pls.' 56.1 Stmt. ¶ 6.

 9              Jordan, as CSE team leader, was ultimately responsible

10   for preparing P.H.'s IEP.   Jordan had never met P.H.   She

11   testified that she prepared the IEP by reviewing all of the

12   records provided to her and participating in the CSE meeting.

13              Before the CSE meeting, P.H.'s parents provided the CSE

14   with several documents, including: (1) a psycho-educational

15   evaluation of P.H. and addendum prepared by Dr. David Salsberg, a

16   supervising pediatric psychologist at NYU Medical Center, who

17   treated P.H. privately; (2) P.H.'s speech, occupational, and

18   physical therapy progress reports prepared by treating

19   specialists; (3) an educational progress report from P.H.'s SEIT;

20   (4) a social history update from a DOE social worker; (5) a

21   classroom observation report by a different DOE social worker;

22   and (6) a report prepared by P.H.'s pre-school teacher.   Jordan

23   testified in the subsequent proceedings before the IHO that it




                                        12
 1   was her practice to review all submitted documents before the CSE

 2   meeting.

 3                According to the documents submitted to the CSE, along

 4   with a public-school placement, P.H. received occupational

 5   therapy, speech therapy, ABA therapy, and physical therapy at

 6   home.   He was making moderate progress with this combination of

 7   mainstream placement and private support.    The SEIT's report

 8   stated that "[b]eing around typical peers [in the mainstream pre-

 9   school] ha[d] helped [P.H.] in his ability to communicate

10   socially."    Overall, P.H. had made "substantial progress

11   throughout the year."    M.H., Joint Appendix in Court of Appeals

12   filed Oct. 13, 2010 ("M.H. J.A."), at 1185.

13                P.H.'s parents reported to the CSE that they thought he

14   was "doing very well in his current mainstream placement and

15   [was] flourishing with typical peers."

Id. at 1192. Dr.

16   Salsberg's report offered the view that P.H. should be placed in

17   "a small classroom setting . . . [that] provide[s] frequent

18   opportunities for social interaction with peers."

Id. at 1144. 19

  Dr. Salsberg's initial report did not mention ABA therapy, but

20   his addendum stated that P.H. "requires 1:1 intensive language-

21   based behavioral interventions by an experienced SEIT throughout

22   the day," and that P.H. "requires continuation of his home-based

23   ABA, [occupational therapy,] and speech/language program."

Id. 24 at 1189.

  P.H.'s preschool teacher similarly opined that P.H.


                                       13
 1   required 1:1 support in order to function in the classroom

 2   setting.   She thought, though, that the classroom setting was not

 3   "an appropriate place" for him.

Id. at 1159. 4

             As a result of the April 17 DOE CSE meeting, the CSE

 5   formulated an IEP for P.H.    Pls.' 56.1 Stmt. ¶ 22; Def.'s 56.1

 6   Resp. ¶ 22.   Under the IEP, P.H. would be placed in a special

 7   school in a special education class with a 6:1:1 student-teacher-

 8   paraprofessional ratio.     The IEP also provided for (1) twice

 9   weekly 30-minute physical therapy sessions; (2) thrice weekly 30-

10   minute occupational therapy sessions; and (3) thrice weekly 30-

11   minute speech and language therapy sessions.      Under this IEP,

12   P.H. would thus receive fewer hours of these related services

13   than he had been receiving under the prior year's plan.

14              Based on the IEP, by Final Notice of Recommendation

15   dated July 11, 2007, the School District notified P.H.'s parents

16   that he had been placed at the school denominated P.S. 94, a

17   smaller school located within the building of P.S. 15, on East

18   4th Street in Manhattan.6




     6
        Both P.H.'s and D.S.'s Final Notices of Recommendation from
     DOE indicate that they were assigned to P.S. 94. But the schools
     appear to be located at different addresses and within different
     mainstream-schools. Although this is confusing, the confusion
     need not be resolved beyond noting that we find nothing to
     indicate that P.H. and D.S. would have attended the same school
     as one another had they both attended the public schools to which
     they were assigned in their IEPs.


                                       14
 1                The parties dispute what happened after parents M.H.

 2   and E.K. received the IEP and Final Notice of Recommendation.

 3   The plaintiff parents assert that "[f]or two weeks" they

 4   "attempted to contact the proposed placement to schedule a visit

 5   to determine whether the class was appropriate for P.H.      There

 6   was no answer at the school building and the parent[s'] messages

 7   were not returned."      Pls.' 56.1 Stmt. ¶ 28.

 8                Thereafter, the parents say, they were directed to

 9   Ronnie Schuster, the principal at a different site, who, the

10   parents were told, would be the principal at P.S. 94 in the fall.

11   They assert that they visited Schuster's then-school on August 7

12   or 8, 2007, to observe a class similar to the one in which P.H.

13   would be enrolled at P.S. 94 pursuant to his IEP.       They met Oliva

14   Cebrian, a teacher who was to be the site leader at P.S. 94.

15   Cebrian took them to observe a 6:1:1 summer-program class that,

16   she said, was similar to the class P.H. could expect to enter in

17   the fall.

Id. ¶ 30. In

their view, the children in the class

18   were lower functioning than P.H. and had "little expressive

19   language."    M.H. J.A. at 727.     It appeared to M.H. that the

20   teacher was only "babysitting" the children.

Id. M.H. also 21

  contended that Cebrian told him that the mainstream children at

22   the school did not act as though they welcomed special education

23   children -- the latter group ate lunch in a separate cafeteria

24   and used a separate entrance to the school.


                                        15
 1                After the visit, M.H. again contacted Schuster, seeking

 2   further information about the placement, including whether P.H.

 3   would be able to interact with mainstream students.     Schuster

 4   referred him to another DOE employee, Sonia Royster, whom he then

 5   telephoned.    When, according to M.H., Royster did not return the

 6   call, M.H. followed up by letter.      According to M.H., Royster

 7   never responded.

 8                At about the same time, M.H. and E.K., who were not yet

 9   persuaded that the IEP's placement was appropriate for their son,

10   explored other options, including the Brooklyn Autism Center

11   ("BAC"), a private school.     The plaintiffs visited BAC and met

12   with its educational director, Jaime Nicklas.     BAC provides a

13   program for autistic children that features intensive ABA 1:1

14   instruction to its five students; tuition is $80,000 per school

15   year, payable at the beginning of each year.

16                After the visit, the parents submitted an application

17   to BAC.    M.H. testified that with the start of the school year

18   fast approaching, his intention was "to place [P.H.] temporarily

19   if they'll accept him into BAC in that program," while M.H.

20   continued to seek information regarding the IEP's public school

21   placement.    M.H. J.A. 733.   P.H. was accepted into BAC, and the

22   plaintiffs signed the contract with the school and paid a

23   deposit.




                                       16
 1             On August 24, 2007, one week after signing the BAC

 2   contract, M.H. visited Royster -- to whom Schuster had referred

 3   him -- at her office.   According to M.H., Royster could not

 4   provide any further information about P.H.'s placement.   M.H.

 5   asserts that he "literally had to camp out" at the CSE office "to

 6   get any information whether it be on [P.H.'s placement or] his

 7   related services."   M.H. J.A. 736.

 8             On the first day of school at P.S. 94 – September 10,

 9   2007 – according to M.H., having failed to get any information

10   from Royster, M.H. again contacted Schuster.   When, he says, he

11   did not receive a response, he followed up by email on September

12   14, inquiring whether he could visit the proposed placement.     He

13   did not receive a responsive email until nine days later, on

14   September 19.

15             The next day, after observing two different classes at

16   P.S. 94, M.H. was of the view that neither was an appropriate

17   place for his son:   In one, the students were young and, unlike

18   P.H., nonverbal and not toilet trained; in the second, the

19   students were many years P.H.'s senior.   M.H. also thought that

20   P.H. would not benefit from the instruction offered in the

21   classes, both because the school offered only minimal ABA 1:1

22   therapy and because, M.H. thought, the methodologies the school

23   did use would not work for P.H.




                                       17
 1             The DOE contends that it could have offered P.H.

 2   placement in yet a third class, but does not suggest that it so

 3   informed M.H.   After visiting P.S. 94, the parents decided to

 4   keep P.H. at BAC for the 2007-08 school year, and paid the

 5   remainder of the $80,000 tuition in full.

 6             By letter dated October 30, 2007, M.H. and E.K.,

 7   through counsel, requested a due process "impartial hearing" and

 8   sought reimbursement for P.H.'s BAC tuition.   In that request,

 9   they alleged that the DOE failed to provide P.H. with a FAPE,

10   developing instead a procedurally and substantively unreasonable

11   IEP.

12             The parents also asserted three specific procedural

13   challenges to the IEP: (1) that the annual goals and short-term

14   objectives presented for P.H. were "generic and vague," and

15   lacked evaluative criteria, in violation of the IDEA; (2) that

16   the CSE failed to conduct an Functional Behavioral Assessment

17   ("FBA") to evaluate P.H.'s social needs; and (3) that the IEP

18   ultimately did not mandate social and emotional counseling for

19   P.H. despite acknowledging at one point in the document that such

20   counseling was necessary.   The plaintiffs also asserted that the

21   IEP was substantively inadequate because the classrooms

22   identified for P.H. did not meet his needs and would not have

23   provided him with an educational benefit.




                                     18
 1                As is required under the IDEA, in response to the

 2   parents' request, a DOE IHO conducted a hearing to review the

 3   IEP.   The hearing lasted eight non-contiguous days between

 4   January 30, 2008, and September 5, 2008. M.H. J.A. 1345.

 5                The DOE, which bore the burden of proof, presented

 6   testimony by: Giselle Jordan, the CSE organizer and drafter of

 7   the IEP; and Susan Cruz, an Assistant Principal at the proposed

 8   placement.

Id. at 1345-47. 9

               Jordan testified, among other things, that she had

10   reviewed all of the documents submitted to the CSE committee.

11   She stated that P.H. did not demonstrate behavioral problems that

12   interfered with his learning; described the CSE meeting and the

13   process of producing the IEP; and discussed P.H.'s test scores.

14   Cruz explained the structure and programming at P.S. 94.

15                Later, on rebuttal, the DOE also called Elizabeth

16   Washburn, a teacher at P.S. 94, and Kay Cook, a "coach" who

17   trains DOE staff on teaching methodologies for autistic students

18   including ABA, TEACCH, and PECS, the latter being the principal

19   methodologies used at P.S. 94.

20                The plaintiffs presented testimony by BAC director

21   Jaime Nicklas; P.H.'s treating psychologist Dr. David Salsberg;

22   P.H.'s speech pathologist Miranda White; and M.H., P.H.'s father.

23   In addition to explaining BAC's program, Nicklas described the

24   ABA methodology in depth and voiced her opinion that ABA is "the


                                       19
 1   only empirical method approved to treat children with autism."

 2   M.H. J.A. at 454.     She admitted, however, that "a strict ABA

 3   program is not appropriate for every single child," and that

 4   higher functioning children would not benefit from being in a

 5   "more restrictive environment . . . if they can communicate and

 6   if they can learn in a large group setting."    M.H. J.A. at 467.

 7   She also testified that based on her observation of P.H., it was

 8   clear to her that he needed an ABA program to progress.      Finally,

 9   Nicklas testified that P.H. had made great strides during his

10   time at BAC, learning to identify objects he wanted, asking for

11   help, walking quietly, and identifying basic numbers and words,

12   among other things.    Dr. Salsberg's testimony focused on the

13   importance of ABA treatment to P.H.'s continued progress.

14             After hearing the testimony, the IHO issued her

15   findings and decision.    She agreed with the parents that the

16   IEP's annual goals and objectives were "generic and vague" and

17   "not based on his actual needs and abilities, but on the grade he

18   was expected to be placed in."    M.H. J.A. at 1356.    In support of

19   this conclusion, the IHO cited Jordan's testimony to the effect

20   that prior to the IEP meeting she thought P.H. would be entering

21   first grade, and that, after learning that he would in fact be

22   entering kindergarten, she changed the annual goals but did not

23   change the short-term goals and objectives.

Id. The IHO also

24   agreed with the parents that "some of the April 2007 IEP annual


                                       20
 1   goals and short term objectives in reading comprehension, reading

 2   skills and math [were] not measurable since they d[id] not

 3   contain evaluative criteria, evaluation procedures and schedules

 4   to be used to measure progress."

Id. 5 The IHO

then discussed her review as to the appropriate

 6   method for teaching P.H.    Although the parents did not

 7   specifically raise this issue in their letter requesting the

 8   hearing, the IHO characterized the parents as "contend[ing] that

 9   the appropriate methodology for the student was ABA discre[te]

10   trial instruction."

Id. at 1357. According

to the IHO, P.H.'s

11   "evaluations support their claim."

Id. The IHO then

decided

12   that the IEP's proposed placement did not offer sufficient 1:1

13   ABA instruction, but that the BAC did.

Id. Finally, the IHO

14   concluded that because BAC was an appropriate place for P.H. and

15   because equitable considerations favored the parents,

16   reimbursement of P.H.'s BAC tuition costs was appropriate.

Id. 17 The DOE

appealed the IHO's decision to the SRO.        On

18   December 10, 2008, the SRO issued a decision reversing the IHO.

19

Id. at 1362. After

recounting the facts in some detail, the SRO

20   addressed the DOE's contention that because the parents did not

21   raise the question of educational methodology in their letter

22   requesting the due process hearing, the IHO should not have

23   considered it.    He concluded that in light of the parents'

24   failure to include such a claim in their letter, it was


                                       21
 1   "procedurally improper for the [IHO] to bas[e] her finding that

 2   the district did not provide the student a FAPE in part on her

 3   determination that the appropriate methodology for [P.H.] was

 4   ABA."

Id. at 1372. Turning

to the merits, the SRO "f[ound] that

 5   the . . . annual academic goals [contained in the IEP] were

 6   appropriate for [P.H.] and that they provided meaningful guidance

 7   to the teacher responsible for implementing the goals."

Id. at 8 1374.

 9                With regard to the IEP's "non-academic goals," the SRO

10   acknowledged that some of those contained in the IEP "lacked a

11   written specified level of difficulty when isolated out of

12   context and viewed alone," but thought that because "the majority

13   of the student's short-term objectives were both detailed and

14   measurable," this cured any deficiencies with the annual goals.

15

Id. The SRO was

also satisfied that the "IEP . . . contained

16   sufficient goals and short-term objectives relating to [P.H.'s]

17   social/emotional needs."

Id. He also noted

that "although not

18   dispositive," the parents did not express any concern about the

19   specificity of the IEP's goals until they filed their hearing

20   request letter.

Id. at 1375. 21

               Turning to the substance of the program endorsed by the

22   IEP, the SRO determined that although the parents "previously

23   indicated that they believed [P.H.] was doing 'very well' in his

24   mainstream preschool setting with SEIT support and they wanted


                                       22
 1   him to be placed in a similar setting for kindergarten, the

 2   hearing record does not support that a general education setting

 3   would be appropriate [for P.H.]."

Id. (citation omitted). The

 4   SRO then cited testimony regarding P.S. 94's use of "various

 5   methodologies," and concluded that "the recommended placement was

 6   reasonably calculated to enable [P.H.] to obtain educational

 7   benefit."

Id. The SRO thus

decided that the IHO had "erred in

 8   [her] determination that the district did not offer [P.H.] a FAPE

 9   for the 2007-08 school year."

Id. The SRO therefore

did not

10   reach the question of whether BAC was an appropriate unilateral

11   placement.

12                M.H. and E.K., on behalf of P.H., challenged the SRO's

13   decision through a civil action brought in the United States

14   District Court for the Southern District of New York.     By

15   complaint dated April 9, 2009, the plaintiffs sought "(a) a

16   modified de novo review and reversal of the . . . [SRO]'s

17   December 10, 2008 Decision . . . ; (b) a determination that M.H.

18   and E.K. and P.H. have met the applicable Second Circuit standard

19   for reimbursement of tuition paid for the unilateral provision of

20   special education services to P.H.; (c) an order directing

21   defendant to reimburse plaintiff, as requested, for the provision

22   of such educational services; and (d) an order granting plaintiff

23   leave to file a fee application pursuant to the fee shifting

24   provisions of the statute."    Compl. at 2, M.H. v. N.Y.C. Dep't of


                                       23
 1   Educ.,

712 F. Supp. 2d 125

(S.D.N.Y. 2010) (No. 09 Civ. 3657),

 2   ECF No. 1.

 3                The parties then cross-moved for summary judgment.   By

 4   a lengthy and detailed Opinion and Order dated May 10, 2010, the

 5   district court (Loretta A. Preska, Chief Judge) reversed the SRO,

 6   agreeing with the IHO instead.      M.H. v. N.Y.C. Dep't of Educ.,

 7

712 F. Supp. 2d 125

(S.D.N.Y. 2010).     After a careful rehearsal

 8   of the facts, the court engaged in a point-by-point consideration

 9   of the IHO's and SRO's decisions.

10                First, the district court decided that the SRO had

11   erred by declining to consider the plaintiffs' evidence regarding

12   the proper methodology for teaching their son.

Id. at 148-52. 13

  In the district court's view, it was the DOE that first raised

14   the issue of methodology.    The plaintiffs could not fairly be

15   precluded from responding.

Id. 16 Second, the

district court concluded that the IEP did

17   not comply with IDEA's procedural requirements.     In analyzing the

18   issue, the court began with the observation that the opinion of

19   the SRO was neither cogently reasoned nor supported by adequate

20   evidence.    The court therefore based its analysis on the

21   reasoning and conclusions of the IHO.     The district court thought

22   them clear and in accordance with the applicable standards

23   previously set forth by this Court.

Id. at 153-63. 24

 1             The district court did not, however, fault the CSE for

 2   its failure to conduct a Functional Behavioral Assessment.     An

 3   FBA is the "process of determining why a student engages in

 4   behaviors that impede learning and how the student's behavior

 5   relates to the environment."    NYCRR tit. 8, § 200.1®.   The CSE

 6   did not conduct an FBA before adopting P.H.'s IEP.     In P.H.'s

 7   case, an FBA would have considered why he engaged in abnormal

 8   behavior such as repeatedly biting his hand, screaming, and self-

 9   stimulating, or "stimming."    Pls.' 56.1 Stmt. ¶¶ 15-16.

10             As the district court noted, "[f]ailure to conduct an

11   FBA does not amount to a procedural violation of the IDEA where

12   the IEP sets forth other means to address the student's

13   problematic behaviors."

Id. at 158. The

court concluded that

14   because the IEP identifies P.H.'s problematic behavior but states

15   that it does not render him entirely unteachable, the SRO's

16   determination that the absence of an FBA did not render the IEP

17   unreasonable was appropriate.   
Id. at 159.

18             With regard to the IEP's substantive compliance with

19   IDEA mandates, the district court relied on the IHO's opinion

20   rather than that of the SRO.    
Id. at 159-66.   The court agreed

21   with the IHO's conclusion that the IEP did not provide a program

22   that would meet P.H.'s needs.   
Id.     The court also accepted the

23   IHO's determination that the classroom identified for P.H. was

24   not appropriate because it did not provide sufficient ABA


                                      25
 1   therapy.   
Id. at 161-63.    Finally, the court agreed with the IHO

 2   that BAC was an appropriate unilateral placement, and that

 3   equitable considerations favored reimbursement.      
Id. at 163-70.

 4   The court therefore granted the plaintiffs' motion for summary

 5   judgment, denied the defendant's, and ordered the DOE to

 6   reimburse the plaintiffs for P.H.'s 2007-08 BAC tuition.      
Id. at

 7   170.
 8              M.S. Background

 9              M.S. and L.S.'s son, D.S., was diagnosed with an autism

10   spectrum disorder -- more specifically, Pervasive Developmental

11   Disorder -- when he was 17 months old.7      Immediately thereafter,

12   D.S. began to receive services from the New York State Early

13   Intervention program ("E.I."), including 20 hours per week of

14   special education involving a combination of ABA and other

15   therapy techniques.   M.S., Joint Appendix in Court of Appeals

16   filed Oct. 29, 2010 ("M.S. J.A."), at 912.      He also received

17   occupational and physical therapy.     
Id.   Within a year it became

18   clear that methodologies other than ABA were not working for D.S.

19   His therapy was therefore increased to 30 hours of ABA each week.


     7
       Pervasive Developmental Disorder (Not Otherwise Specified)
     "became the diagnosis applied to children or adults who are on
     the autism spectrum but do not fully meet the criteria for
     another [autism-spectrum disorder] such as autistic disorder
     (sometimes called 'classic' autism) or Asperger Syndrome." What
     is Autism?, Autism Speaks,
     http://www.autismspeaks.org/what-autism/pdd-nos (last visited,
     June 27, 2012).


                                       26
 1   By the time D.S. "aged out" of E.I., he was receiving 40 hours of

 2   ABA therapy with an SEIT, in addition to five hours per week of

 3   speech and occupational therapy and two hours per week of

 4   physical therapy, each of them in one-hour sessions.     D.S.

 5   continued to receive this program by mandate of the CPSE.       At

 6   four years old, D.S. was totally non-verbal, engaged in

 7   "extremely high rates of self-stimulatory behaviors," and

 8   displayed "distractible tendencies [that] profoundly interfere[d]

 9   with his learning and ability to attend to people and things in

10   his environment."    M.S. J.A. 234.    In addition, he often put non-

11   edible objects into his mouth.

12                Beginning with the 2007-08 school year, D.S. was

13   considered by the CPSE to be a "school aged" child.      He was

14   therefore required to have an IEP created for him by a CSE -- a

15   Committee on Special Education -- rather than an educational plan

16   prescribed by the DOE's CPSE.    In late May 2007, L.S., D.S.'s

17   mother, was notified that the CSE would be meeting to consider

18   the issue.    L.S. telephoned Dr. Bowser, the district

19   representative responsible for D.S.'s IEP, to schedule the

20   meeting and offered to provide Dr. Bowser with evaluations of

21   D.S. by his then-caregivers.    Dr. Bowser informed L.S. that she

22   could bring the evaluations to the CSE meeting rather than

23   sending them to Bowser so that she could review them in

24   preparation for the meeting.


                                       27
 1               The CSE convened a meeting on June 4, 2007, to discuss

 2   D.S.'s IEP for his kindergarten year.    In attendance were, inter

 3   alios, (1) L.S.; (2) a special education teacher; (3) a general

 4   education teacher; and (4) Dr. Bowser.   DOE evaluator Marion

 5   Pearl addressed the meeting by phone.    The meeting lasted 45

 6   minutes.    At the beginning of the meeting, Dr. Bowser informed

 7   L.S. that although she had a right to have a parent member8

 8   present, no parent member was available to attend that day.

 9   According to L.S., Bowser appeared "quite stressed" about getting

10   the IEP done by early June.   L.S. therefore "felt pressured to

11   have the meeting" even without a parent member present.   M.S.

12   J.A. 918.   L.S. therefore signed a waiver agreeing to the absence

13   of the parent member.   
Id.

14               The group received several written reports from D.S.'s

15   educational service providers.   D.S.'s occupational therapist

16   reported that D.S.'s progress had been "extremely slow," and that

17   "[i]t is essential that [D.S.] receive[] [occupational therapy] 5

18   times a week for at least 60 minutes in order to make adequate



     8
       A "parent member" is a parent of another disabled child or a
     child who was recently "declassified" as disabled who
     participates in the CSE in order to ensure that the parents
     understand the IEP-formulation process, are "comfortable" with
     the IEP team's decisions, and have "had their concerns adequately
     addressed." Make a Difference. Become a Parent IEP Team Member,
     N.Y.C. DEP'T OF EDUC.,
     http://schools.nyc.gov/Academics/SpecialEducation/when-is-the-
     next/parentTeamMember.htm (last visited June 27, 2012).


                                      28
 1   progress."    M.S. J.A. 251.    D.S.'s speech therapist wrote that as

 2   of that time, D.S. had "never spoken" and could "not effectively

 3   communicate pain or discomfort . . . [or] basic wants or needs."

 4   
Id. at 247.     She thought it to be "imperative that [D.S.]

 5   continue[s] to receive speech and language therapy for no [fewer]

 6   than [5] times weekly for [60] minute session to maintain and

 7   carryover learned skills thus far, and to help him to communicate

 8   spontaneously."    
Id.

 9                D.S.'s physical therapist "recommended that [D.S.]

10   continue to receive physical therapy services as per mandate" to

11   continue his improvement.      
Id. at 249.    The CSE group also

12   received a report from DOE evaluator Pearl, who, according to

13   L.S., recommended that D.S. be placed in an ABA program.

14                Jill Weynert, D.S.'s preschool program coordinator and

15   a certified behavior analyst, expressed the view at the IHO

16   hearing that D.S. "absolutely needed a one to one -- he needed an

17   ABA program."    
Id. at 481.    Weynert explained that D.S. "had a

18   hard enough time learning with one to one," and that he "wouldn't

19   be able to learn" in a group setting.        
Id. at 483-84.   She also

20   stated that unlike most children, D.S. would not benefit from

21   being exposed to peers in a classroom environment because he

22   could not "attend to other kids."       
Id. at 484.

23                According to Weynert, there was no discussion at the

24   CSE meeting of D.S.'s progress over the previous year, or whether


                                        29
 1   he had achieved any of the annual or short-term goals that the

 2   CPSE had theretofore set out for him.    L.S. later testified

 3   before the DOE IHO that during the meeting, Bowser indicated that

 4   D.S. would be placed in a 6:1:1 program despite L.S.'s "expressed

 5   . . . concerns" about such a placement.   M.S. J.A. 921.     L.S.

 6   requested that the CSE consider programs like the one at the New

 7   York City Charter School of Autism, which provides 1:1 ABA

 8   therapy.   Spaces at the City School of Autism are allocated by

 9   lottery.   D.S. had not been chosen.   But L.S. hoped the DOE might

10   be able to offer a similar program elsewhere.   Dr. Bowser

11   informed L.S. that "all . . . she could offer at th[e] time . . .

12   was a 6:1:1 placement, that was all that was available." 
Id.

13              Ultimately, D.S.'s IEP did not reflect his progress

14   during the previous year or how that progress might call for

15   altering goals for the subsequent year.   Instead, the team

16   photocopied D.S.'s goals and objectives from the previous year's

17   CPSE plan for use in the then-current year despite the fact that

18   those goals and objectives were not only a year old, but had been

19   drafted for the home-based 1:1 program D.S. was offered that year

20   and were therefore, according to M.S. and L.S.'s arguments,

21   inapplicable to the then-current year.

22              The CSE, led by Bowser, ultimately recommended in the

23   IEP that they approved for D.S. that he attend a classroom-based




                                     30
 1   6:1:1 program in a District 75 school.9    The IEP noted that the

 2   committee had considered and rejected five other types of

 3   placements, including general education and a 12:1:1 special

 4   education class in a District 75 school.    The plan did not,

 5   however, reflect any consideration by the committee of a 1:1 ABA

 6   program.     The IEP also reduced D.S.'s related services, directing

 7   that he receive thirty minutes each of occupational, physical,

 8   and speech therapy, five times per week, and thirty minutes of

 9   counseling three times weekly.

10                After receiving a final notice of D.S.'s placement at

11   P.S. 94 (part of P.S. 196)10 in late-June 2007, L.S. visited the

12   school, accompanied by Dr. Weynert.    For two hours, they observed

13   the class to which D.S. would be assigned.    L.S. later reported

14   that the class had only one non-verbal student, and that the book

15   he used for communicating -- his PECS book11 – stayed in his desk


     9
        District 75 "provides citywide educational, vocational, and
     behavior support programs for students who are on the autism
     spectrum, have significant cognitive delays, are severely
     emotionally challenged, sensory impaired and/or multiply
     disabled. District 75 consists of 56 school organizations, home
     and hospital instruction and vision and hearing services."
     Special Education District 75,
     http://schools.nyc.gov/Offices/District75/default.htm (last
     visited June 27, 2012).
     10
          See supra note 6.
     11
        "Picture Exchange Communication System (PECS) is
     augmentative/alternative communication strategy for those who
     display little or no speech." http://www.pecsusa.com/research.php
     (last visited June 27, 2012); see also supra note 7.


                                       31
 1   the entire time she was there, leaving him with no way to

 2   communicate.   L.S. also noted that although she had been told

 3   that the non-toilet-trained students in the class were brought to

 4   the bathroom every 30 minutes, she did not observe them being

 5   taken to the restroom at all in her two hours there.

 6              L.S. also expressed concern that the teachers were not

 7   adequately trained, that the students' self-stimulatory behaviors

 8   went unchecked, and that D.S.'s "mouthing" behaviors -- i.e., his

 9   tendency to put anything and everything in his mouth -- were

10   dangerous and would not be properly monitored at the school.

11              When L.S. raised these issues with P.S. 94's principal

12   Ronnie Schuster, she agreed that "she in fact would be concerned

13   for [D.S.'s] safety" there, particularly if he did not have a

14   paraprofessional devoted to him throughout the day.    M.S. J.A. at

15   936.   Teachers at the school indicated that the school did

16   provide ABA programs to some students, but these programs were

17   not individualized and were offered in only part of the special

18   education classroom.   At the end of the visit, L.S. "felt

19   strongly that I was in agreement with the experts, the

20   professionals, the doctors, the educators, who had all -- all

21   told me that" D.S. would not fare well in a 6:1:1 setting.    
Id.

22   at 941.
23              In light of their discomfort, D.S.'s parents explored

24   private school options for D.S., including the BAC.    D.S. was


                                     32
 1   accepted to BAC and another specialized school.    His parents

 2   chose to enroll him at BAC, which offers only ABA 1:1 teaching.

 3   They signed a contract with BAC pledging to pay the $80,000

 4   tuition for the 2007-08 school year.

 5             By letter dated December 28, 2007, the plaintiffs filed

 6   with the DOE a request for an impartial hearing.   In the letter,

 7   the plaintiffs alleged that the DOE failed to provide D.S. a FAPE

 8   for the 2007-08 school year inasmuch as: (1) the CSE team was not

 9   properly constituted at the June 4, 2007, meeting at which the

10   individualized education plan was developed, because it lacked a

11   parent member, and the general education teacher was present for

12   only part of the meeting; (2) the IEP failed to set new goals for

13   D.S. for the relevant school year, instead photocopying his goals

14   from the previous year, which had been developed for a 1:1

15   program and did not reflect D.S.'s progress during the prior

16   year; (3) the IEP failed to explain why D.S.'s related services

17   were reduced; and (4) the 6:1:1 program to which D.S. had been

18   assigned could provide neither an appropriate peer group nor

19   adequate supervision and instruction.   The parents sought

20   reimbursement for D.S.'s BAC tuition for that year.

21             The IHO convened a hearing comprising six hearing days

22   between April 9, 2008, and October 8, 2008.   At the hearing, the

23   DOE called as witnesses: (1) Dr. Bowser; (2) Alex Campbell, a

24   special education teacher who was in charge of the 6:1:1 class to


                                    33
 1   which the IEP had assigned D.S.; and (3) Susan Cruz, an assistant

 2   principal of P.S. 94, who testified generally about the school.

 3   Bowser was the DOE's principal witness.      She testified that while

 4   she had not met or observed D.S., her review of his records

 5   convinced her that a general education setting was not

 6   appropriate for him.   She stated that all parties present at the

 7   CSE meeting agreed with that assessment, and that the IEP

 8   therefore required specialized schooling with the addition of

 9   twelve months of related services.

10             Dr. Bowser endorsed the 6:1:1 placement, explaining

11   that a small class size was required because D.S. "must be

12   carefully supervised at all times during the day, because he [is]

13   unaware of danger."    M.S. J.A. at 55-56.     However, Bowser later

14   conceded that she did not know of any program other than 6:1:1

15   that the DOE could offer to autistic children, thereby implying

16   that she did not consider whether a 1:1 program might be more

17   appropriate.   She further stated that the related services were

18   all necessary, explaining that although D.S. would receive fewer

19   hours of in-home services, he would be receiving similar services

20   in the classroom setting, so that "in effect, he would be getting

21   more services."   
Id. at 60.

22             Dr. Bowser conceded that the CSE team had incorporated

23   goals for D.S. that had been photocopied from the prior year's

24   plan, but stated that they had discussed "every goal," and


                                      34
 1   determined that each was still appropriate because it had not yet

 2   been met.   
Id. at 61.   Dr. Bowser further stated that she had

 3   reviewed the evaluations from D.S.'s treating doctors and

 4   therapists, and that she agreed with most of them but disagreed

 5   with one doctor's recommendation that D.S. required attention

 6   seven days a week.

 7               Alex Campbell, a special education teacher with seven

 8   years' experience and training in various methodologies including

 9   ABA, TEACCH, and PECS, also testified.    Campbell, who would have

10   been D.S.'s teacher had D.S. attended public school, testified

11   that 6:1:1 learning can be appropriate for autistic children

12   because it can provide them with both individualized attention

13   and opportunities for group work.     She said that there were four

14   autistic children in her class in 2007-08, all of them around

15   D.S.'s age, and that she maintained frequent and open

16   communication with all the students' parents by phone and by

17   notebook that was passed back and forth between school and home.

18   She reported that all the students progressed over the course of

19   the year.

20               The plaintiffs called several witnesses.   Their first

21   was Dr. Weynert, D.S.'s program coordinator from 2005-2007.

22   According to Weynert, D.S. initially, in 2005, "presented . . .

23   really no notable functional skills.    He engaged in extremely

24   high rates of self-stimulatory behaviors -- verbal and motor.     He


                                      35
 1   was unable to . . . play with any toy in the way it was intended.

 2   . .   [A]ny object was used to engage in self-stimulatory

 3   behaviors."    
Id. at 471.    She testified that D.S. "had the

 4   toughest time learning," but that after almost two years of

 5   intensive 1:1 ABA therapy for up to 35 hours a week, and many

 6   hours per week of related services, D.S. was able to "learn how

 7   to learn."    
Id. at 474.    He nonetheless remained non-verbal and

 8   easily distracted, and continued to engage in high rates of self-

 9   stimulatory behavior.    Weynert opined that 1:1 instruction was

10   "absolutely" the proper course for D.S.     
Id. at 481.

11                Dr. Weynert also testified that at the June 2007 CSE

12   meeting, the committee engaged in no discussion of methodology

13   other than listening to Weynert's recommendation that D.S. be

14   provided ABA 1:1 instruction.     With regard to D.S.'s related

15   services, Weynert testified that she "strongly, strongly advised

16   against" the reduction of D.S.'s various therapies, but that the

17   CSE told her that "[t]hat's [all] they could do."      
Id. at 493.

18   Weynert explained that 30-minute sessions would be unproductive

19   for D.S. because "to engage [him] takes some time. . . .      And a

20   half an hour, by the time you sat down with him and really began

21   to do anything your session would be over."     
Id. at 494.

22                During her testimony, Weynert discussed the visit she

23   and L.S. had made to P.S. 94 to observe the class to which D.S.

24   had been assigned.    She reported that the teacher had "minimal"


                                        36
 1   ABA training and that any ABA instruction was not tailored to the

 2   individual children.    She reported that the assistant teacher was

 3   scolding a non-verbal child who was seeking attention rather than

 4   helping him communicate.   Weynert said that no data was being

 5   collected on the children's behaviors and no "behavior reduction

 6   plans" were in place.   
Id. at 499-500.    She further testified

 7   that she had visited BAC before D.S. enrolled there, and had been

 8   impressed with that program.   Weynert did concede, however, that

 9   she had never observed D.S. himself in a BAC classroom.

10              The plaintiffs also called Jaime Nicklas, the BAC

11   director who also testified in P.H.'s due process hearing.     She

12   explained that BAC offers full-time 1:1 ABA education to five

13   autistic students each year.   While she acknowledged that ABA is

14   not the only methodology that can be used to educate children on

15   the autistic spectrum, 
id. at 569, she stated that it was the

16   most appropriate program for D.S. based on his "severe[]" autism

17   and his need for "intensive one on one services."    
Id. at 572.

18   Nicklas explained that during a typical day at BAC, D.S. would

19   work with five different instructors who would rotate between the

20   students to ensure that a child could generalize what he had

21   learned.   He had opportunities to interact with mainstreamed

22   children during non-academic activities.    BAC does not, however,

23   offer related services such as speech therapy in school.

24   Instead, the students receive those services at home.    
Id. at


                                      37
 1   608.   Nicklas testified that D.S. has made "a lot of progress" at

 2   BAC; his speech, while challenging, "is coming along," and "his

 3   behaviors have gotten a lot better."    
Id. at 603.    For example,

 4   D.S. now "walks with his hands in his pockets.    His tapping

 5   behavior has decreased significantly"; "his awareness has seemed

 6   to increase."   
Id.

 7               Finally, L.S., D.S.'s mother, testified.   In addition

 8   to providing basic background information on D.S., she discussed

 9   her experiences at the CSE meeting and observing the proposed

10   placement at P.S. 94.   She said that at BAC, D.S. had continued

11   to learn to communicate using an augmentative device called a

12   Dyanvox, that his ability to identify shapes, items, and body

13   parts had increased, and that his motor and play skills had

14   improved.

15               By opinion dated October 22, 2008, the IHO rejected the

16   plaintiffs' challenge, concluding that the DOE had offered D.S. a

17   FAPE for the 2007-08 school year.     As to the plaintiffs'

18   procedural complaints, while the IHO acknowledged that some of

19   the proceedings, including the DOE's practice of encouraging

20   parents to waive the participation of a parent member, were

21   troubling, the IHO thought that they did not rise to the level of

22   the denial of a FAPE.   The IHO further found that L.S. was

23   provided sufficient opportunity to participate meaningfully in

24   the CSE meeting, and that the limited involvement of the general


                                      38
 1   education teacher was not material in light of the agreement by

 2   all CSE members that general education was not appropriate for

 3   D.S.

 4                The IHO was also untroubled by the IEP's wholesale

 5   importing of D.S.'s goals from the previous year.    In the IHO's

 6   view, those goals remained appropriate in light of the testimony

 7   that D.S. learned very slowly.

 8                As for the plaintiffs' objections to the substance of

 9   the IEP, the IHO concluded that the 6:1:1 class was

10   "substantively appropriate and calculated for [D.S.] to make

11   educational progress."     M.S. v. N.Y.C. Dep't of Educ., Special

12   Appendix ("M.S. S.P.A.") at 78.     Specifically, the IHO cited Dr.

13   Bowser's testimony explaining the rationale for placing D.S. in a

14   6:1:1 setting, including that it would "address[] a lot of the

15   issues that were being brought up in the IEP," and would "enable

16   [D.S.] to make some success, improve his skills, and get

17   individualized assistance, with people who understand autism."

18   
Id. at 79.    The IHO was persuaded that the CSE committee had

19   "looked very carefully at [D.S.'s] need to be carefully

20   supervised at all times," and had taken that into account in

21   assigning him to a class with one teacher and one

22   paraprofessional.    
Id.

23                With regard to the reduction in D.S.'s related

24   services, the IHO noted that D.S. had received the IEP-authorized


                                       39
 1   services during the 2007-08 school year in the amounts specified

 2   in the IEP, and that L.S. testified that D.S. nonetheless had

 3   made progress.    The IHO therefore concluded that the parents were

 4   "precluded from making the argument that the [related services]

 5   amount recommended [was] inappropriate."    
Id. at 83.

 6                With regard to methodology, the IHO decided that

 7   although the people treating D.S. all recommended that he

 8   continue in 1:1 ABA, "the people who recommended it believed that

 9   it was the only methodology that worked and were not open to

10   other approaches."    
Id. at 84.   The IHO cited the testimony of

11   Weynert and Nicklas to support this conclusion.     
Id.   But the IHO
12   also noted that an IEP "need not specify or provide one type of

13   methodology," but that it "must provide for specialized

14   instruction in the child's areas of need."    
Id.   The IHO was
15   satisfied that D.S.'s IEP met that requirement.     
Id.   Finally,

16   the IHO rejected the parents' argument that the P.S. 94 teachers

17   were not "sufficiently trained and knowledgeable regarding

18   [D.S.'s] needs."    
Id. at 85.   The IHO concluded that the evidence

19   amply supported the finding that the teachers were qualified.

20                For the foregoing reasons, the IHO denied the parents

21   reimbursement for the $80,000 BAC tuition.    
Id.

22                The parents, M.S. and L.S., appealed the IHO's decision

23   to an SRO.    By decision dated January 9, 2009, the SRO dismissed

24   the appeal.    
Id. at 65.   After summarizing the factual and


                                        40
 1   procedural history at some length, the SRO briefly considered the

 2   parties' arguments.   He first addressed the IEP's alleged

 3   procedural defects, concluding that, "[b]ased on the hearing

 4   record and the particular facts before [him], and upon a complete

 5   and independent review of the hearing record, [he was] not

 6   persuaded that the [IHO] erred in finding . . . that the student

 7   was offered a FAPE for the 2007-08 school year."    
Id. at 65.    The
 8   SRO did not discuss any of the procedural or substantive

 9   arguments individually, instead rehearsing the language of the

10   regulations implementing the IDEA and then stating that he

11   "f[ound] no need to modify the [IHO's] decision."   
Id.    In light

12   of this conclusion, the SRO, like the IHO, did not reach the

13   question whether BAC was an appropriate unilateral placement.

14   
Id.

15             On May 8, 2009, the plaintiffs filed a complaint in the

16   United States District Court for the Southern District of New

17   York seeking review of the SRO's decision.   The district court

18   judge to whom the case was assigned, Hon. Lewis A. Kaplan,

19   referred the case to Magistrate Judge James C. Francis IV for

20   further proceedings, including a Report and Recommendation on any

21   dispositive motion.   See Report & Recommendation, M.S. & L.S. v.

22   N.Y.C. Dep't of Educ., 09 Civ. 4454 (LAK)(JCF) (S.D.N.Y. Mar. 12,

23   2010), ECF No. 25 ("R&R").   By motions filed on October 21, 2009,

24   the parties cross-moved for summary judgment.


                                     41
 1              On March 12, 2010, the magistrate judge recommended

 2   that the district court deny the plaintiffs' motion and grant the

 3   DOE's, thereby leaving in place the IHO's findings that the DOE

 4   provided D.S. with a FAPE for 2007-08.   R&R at 1.   The magistrate

 5   judge set forth in the R&R a detailed factual history of the

 6   case, summarizing the testimony before the IHO.    He then turned

 7   to the issue he thought dispositive: the degree of deference owed

 8   to administrative decision makers in IDEA cases.     
Id. at 34-35.

 9   He found this case to be indistinguishable from Grim for purposes

10   of determining the standard-of-review.   There, we concluded that

11   the IDEA "strictly limit[s] judicial review of state

12   administrative decisions."   R&R at 34 (quoting 
Grim, 346 F.3d at

13   380-81).   He noted Grim's instruction that "the sufficiency of

14   goals and strategies in an IEP is precisely the type of issue

15   upon which the IDEA requires deference to the expertise of

16   administrative officers."    
Id. at 36 (quoting 
Grim, 346 F.3d at

17   382).   With this in mind, the magistrate judge determined that he

18   was required to defer "to administrative decisions on most issues

19   relating to educational policy, whether or not they are

20   controversial."   
Id.   He said that although

21              a court would be adept at determining if [the
22              CSE] properly made [a determination about how
23              to educate a child], . . . this Circuit
24              leaves little room to analyze substantive
25              deficiencies in the evidence presented by the
26              DOE at the hearing. Instead, case law
27              appears to indicate that as long a[s] the DOE


                                      42
 1               is able to produce an expert to support its
 2               position at a hearing and receives a positive
 3               determination by at least one of the
 4               administrative officers, the DOE's position
 5               is nearly assured victory in the federal
 6               courts.


 7   
Id. at 36-37 (citations omitted).      The magistrate judge

 8   "question[ed] whether the degree of deference to educational

 9   administrators required by Grim[] and other Second Circuit cases

10   is consistent with the intent of Congress when it passed the

11   IDEA," but concluded that he was "nonetheless bound by those

12   decisions."   
Id. at 41.

13               The magistrate judge then addressed the merits of the

14   plaintiffs' arguments.     As for the plaintiffs' procedural

15   challenges to the IEP, he noted that he was required to defer "to

16   the determinations of the SRO and IHO regarding the prejudicial

17   impact" of any procedural irregularities, 
id. at 43 (desribing
18   Matrejek v. Brewster Cent. Sch. Dist., 
471 F. Supp. 2d 415, 426

19   (S.D.N.Y. 2007), aff'd, 
293 F. App'x 20 (2d Cir. 2008)), even

20   though he thought it "unclear why such deference is appropriate,

21   given that determining procedural compliance with the IDEA does

22   not appear to require expertise in the field of education," R&R

23   at 43-44.

24               With regard to the composition of the CSE, the

25   magistrate judge concluded that any error in urging L.S. to waive

26   the presence of a parent member did not rise to the level of


                                       43
 1   denying D.S. a FAPE.   
Id. at 44-46.   As for the parents' argument

 2   that "they were denied meaningful participation in the

 3   development of D.S.'s IEP because the CSE failed to rely on

 4   current evaluations of D.S.," 
id. at 46, he concluded that

 5   "[a]lthough the plaintiffs' claims . . . are troubling, they do

 6   not establish impermissible predetermination [of the IEP] in view

 7   of Dr. Bowser's testimony and the deference afforded SRO and IHO

 8   determinations under this Circuit's precedent," 
id. at 48.

 9             On the last alleged procedural error, the incorporating

10   of D.S.'s goals from the prior year into the 2007-08 IEP, the

11   magistrate judge expressed "skepticism that all 22 pages of goals

12   and short-term objectives were reviewed in the course of [the]

13   45-minute [CSE] meeting that was not solely focused on this

14   information," but concluded that the court "[could not] disagree

15   with the IHO's ultimate conclusion."     
Id. at 50.

16             Turning to the plaintiffs' challenge to the substantive

17   adequacy of the IEP, the magistrate judge "agree[d] with the

18   plaintiffs that it is doubtful that D.S.'s IEP was sufficiently

19   individualized [and] . . . share[d] their concern that D.S. would

20   not progress at P.S. 94."   
Id. at 54.    He nevertheless thought

21   himself "constrained to defer to the determination of the IHO and

22   SRO" that the IEP was substantively appropriate, 
id. at 55,

23   despite the testimony by "[t]hose who had met and evaluated

24   [D.S., who] insisted that he required 1:1 ABA therapy in order to


                                     44
 1   progress."    
Id. at 54.   In reluctantly reaching this conclusion,

 2   the magistrate judge wrote:    "[I]t is curious that experts with

 3   experience working with the child at issue [i.e., D.S.'s

 4   examining doctors, therapists and SEIT instructor] do not receive

 5   similar deference" to the administrative review officers.     
Id. at

 6   55.
 7                The plaintiffs filed objections to the R&R.   By order

 8   dated May 14, 2010, however, the district court adopted the R&R

 9   in its entirety.    See Order, M.S. & L.S. v. N.Y.C. Dep't of

10   Educ., 09 Civ. 4454 (LAK)(JCF) (S.D.N.Y. May 14, 2010), ECF. No.

11   32.   The court noted that it "differ[ed] from the magistrate

12   judge only as to the suggestion that he might have decided the

13   matter differently but for feeling constrained by the degree of

14   deference owed to administrative decisions in this context under

15   established Second Circuit precedent."     
Id.   In the district
16   court's view, "[i]t [was] entirely unnecessary for [it] to

17   express any view on that question."    
Id.   The court therefore
18   granted the defendant's motion for summary judgment.

19                                 DISCUSSION

20                I.   Deference Owed to Administrative Findings

21                "Our standard for reviewing a state's administrative

22   decisions in IDEA cases is . . . well established."     T.Y. v.

23   N.Y.C. Dep't of Educ., 
584 F.3d 412, 417 (2d Cir. 2009), cert

24   denied, 
130 S. Ct. 3277 (2010).    "The responsibility for


                                       45
 1   determining whether a challenged IEP will provide a child with an

 2   appropriate public education rests in the first instance with

 3   administrative hearing and review officers.   Their rulings are

 4   then subject to 'independent' judicial review."   Walczak, 
142

 5   F.3d at 129.   Nonetheless, "the role of the federal courts in

 6   reviewing state educational decisions under the IDEA is

 7   'circumscribed.'"   
Gagliardo, 489 F.3d at 112; see also Grim, 
346

 8   F.3d at 380-81 (interpreting the IDEA as "strictly limiting

 9   judicial review of state administrative decisions").   A reviewing

10   court "must engage in an independent review of the administrative

11   record and make a determination based on a 'preponderance of the

12   evidence.'"    
Gagliardo, 489 F.3d at 112; see also Rowley, 
458

13   U.S. at 206.   But such review "is by no means an invitation to

14   the courts to substitute their own notions of sound educational

15   policy for those of the school authorities which they review."

16   
Rowley, 458 U.S. at 206.

17             "To the contrary, federal courts reviewing

18   administrative decisions must give 'due weight' to these

19   proceedings, mindful that the judiciary generally 'lacks the

20   specialized knowledge and experience necessary to resolve

21   persistent and difficult questions of educational policy.'"

22   
Gagliardo, 489 F.3d at 113 (quoting 
Rowley, 458 U.S. at 206, 208)

23   (brackets omitted); see also 
Walczak, 142 F.3d at 129 ("While

24   federal courts do not simply rubber stamp administrative


                                      46
 1   decisions, they are expected to give 'due weight' to these

 2   proceedings . . . .") (citation omitted).    District courts are

 3   not to make "subjective credibility assessment[s]," and cannot

 4   "ch[oose] between the views of conflicting experts on . . .

 5   controversial issue[s] of educational policy . . . in direct

 6   contradiction of the opinions of state administrative officers

 7   who had heard the same evidence."     
Grim, 346 F.3d at 383.   As the

 8   Supreme Court has said, "once a court determines that the

 9   requirements of the Act have been met, questions of methodology

10   are for resolution by the States."    
Rowley, 458 U.S. at 208.

11             Courts generally "defer to the final decision of the

12   state authorities, even where the reviewing authority disagrees

13   with the hearing officer."   A.C. ex rel. M.C. v. Bd. of Educ. of

14   the Chappaqua Cent. Sch. Dist., 
553 F.3d 165, 171 (2d Cir. 2009)

15   (quoting Karl ex rel. Karl v. Bd. of Educ. of Geneseo Cent. Sch.

16   Dist., 
736 F.2d 873, 877 (2d Cir. 1984)) (internal quotation

17   marks omitted).   "If the SRO's decision conflicts with the

18   earlier decision of the IHO, the IHO's decision may be afforded

19   diminished weight."   
A.C., 553 F.3d at 171 (internal quotation

20   marks omitted); see also 
Gagliardo, 489 F.3d at 114 n.2 (same).

21   "Deference is particularly appropriate when . . . the state

22   hearing officers' review has been thorough and careful."

23   
Walczak, 142 F.3d at 129.    The SRO's or IHO's factual findings

24   must be "reasoned and supported by the record" to warrant


                                      47
 1   deference.    
Gagliardo, 489 F.3d at 114.   And in our review of a

 2   district court's decision under the IDEA, deference to

 3   "administrative proceedings is particularly warranted where . . .

 4   the district court's decision was based solely on the

 5   administrative record."    
A.C., 553 F.3d at 171.

 6                These principles are more easily stated by appellate

 7   courts, even if at some length, than they are applied by district

 8   courts, as the cases before us illustrate.    The district court in

 9   M.H. repeatedly quoted to our language in Gagliardo that a state

10   administrative finding does not merit deference unless it is

11   "reasoned and supported by the 
record," 489 F.3d at 114.    See,

12   e.g., 
M.H., 712 F. Supp. 2d at 154, 157, 161, 163.    The

13   magistrate judge in M.S., by contrast, articulated a highly

14   restricted standard of review, relying in particular on Grim to

15   decide that "as long a[s] the DOE is able to produce an expert to

16   support its position at a hearing and receives a positive

17   determination by at least one of the administrative officers, the

18   DOE's position is nearly assured victory in the federal courts."

19   R&R at 37.

20                The Supreme Court has only considered the standard of

21   review in these circumstances once.    In Rowley, the district

22   court had held, contrary to New York school administrative

23   officers whose decisions it was reviewing, that the child, a deaf

24   student, had not been provided with a FAPE.    Rowley v. Bd. of


                                       48
 1   Educ. of Hendrick Hudson Cent. Sch. Dist., 
483 F. Supp. 528, 529

 2   (S.D.N.Y. 1980).   According to the district court, the school

 3   district had not given the student "an opportunity to achieve

 4   [her] full potential commensurate with the opportunity provided

 5   to other children."   
Id. at 534.      The Court of Appeals affirmed.

 6   Rowley v. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., 632

 
7   F.2d 945, 946 (2d Cir. 1980).

 8             The Supreme Court reversed.      It observed that

 9   "[n]oticeably absent from the language of the statute is any

10   substantive standard prescribing the level of education to be

11   accorded handicapped children."     
Rowley, 458 U.S. at 189.    In

12   light of Congressionally expressed intent to provide disabled

13   children with some educational opportunity, however, the Court

14   concluded that the Act provided only for a "'basic floor of

15   opportunity' . . . consist[ing] of access to specialized

16   instruction and related services which are individually designed

17   to provide educational benefit to the handicapped child."       
Id. at

18   201.
19             The Court then considered the meaning of the provisions

20   governing the district court's resolution of civil complaints

21   brought under the Act.   The parents had argued that the Act's

22   reference to courts deciding issues based upon a preponderance of

23   the evidence means that the Act requires "de novo review over

24   state educational decisions and policies."      
Id. at 205.    The

                                       49
 1   State countered that courts "are given only limited authority to

 2   review for state compliance with the Act's procedural

 3   requirements and no power to review the substance of the state

 4   program."   
Id.

 5               The Supreme Court found neither view persuasive.

 6   Congress had substituted the "independent decision based on a

 7   preponderance of the evidence" language for "language that would

 8   have made state administrative findings conclusive if supported

 9   by substantial evidence."   
Id. at 205 (brackets omitted).

10   Therefore, Congress clearly intended for courts to have some

11   independent ability to review the decisions of administrative

12   officers.   
Id.   The fact that Congress had placed emphasis on the

13   procedural protections afforded parents and children, however,

14   "demonstrates the legislative conviction that adequate compliance

15   with the procedures prescribed would in most cases assure much if

16   not all of what Congress wished in the way of substantive content

17   in an IEP."   
Id. at 206.   For this reason, "the provision that a

18   reviewing court base its decision on the 'preponderance of the

19   evidence' is by no means an invitation . . . to substitute [its]

20   own notions of sound educational policy for those of the school

21   authorities which [it] review[s]."    
Id.

22               The Rowley Court continued:     "The fact that [the IDEA]

23   requires that the reviewing court 'receive the records of the

24   [state] administrative proceedings' carries with it the implied


                                      50
 1   requirement that due weight shall be given to these proceedings."

 2   
Id. (second alteration in original).

 3             Congress' intention was not that the Act
 4             displace the primacy of States in the field
 5             of education, but that States receive funds
 6             to assist them in extending their educational
 7             systems to the handicapped. Therefore, once
 8             a court determines that the requirements of
 9             the Act have been met, questions of
10             methodology are for resolution by the States.
11   
Id. at 208.

12             With this framework in place, the Court decided that

13   review should proceed on two levels:   First, the district court

14   should ask whether the State has complied with the "procedures

15   set forth by the act."   
Id. at 206.   And, second, the court

16   should decide whether "the individualized educational program

17   developed through the Act's procedures [is] reasonably calculated

18   to enable the child to receive educational benefits."   
Id. at

19   206-07.
20             Rowley left many issues unresolved, including:    How

21   much weight is "due" to the administrative rulings?   Is there a

22   difference between administrative rulings that appear grounded in

23   findings of fact and those based on conclusions of law?    Is there

24   a different level of deference owed to questions of procedural

25   compliance as opposed to substantive compliance?   And how should

26   courts treat a question of appropriate educational methodology




                                     51
 1   that is bound up with a determination of whether the requirements

 2   of the Act have been met?

 3             In Walczak, we considered a district court's decision,

 4   contrary to the determinations of state and local administrative

 5   officers, that the school district had not provided an IEP that

 6   was adequate to permit the disabled child to "make educational

 7   and social progress."   
Walczak, 142 F.3d at 123.    We sought to

 8   determine how a federal court could conduct an "independent"

 9   review pursuant to the IDEA without "impermissibly meddling in

10   state educational methodology."    
Id. at 130 (internal quotation

11   marks omitted).   We concluded that at least in cases where the

12   substantive adequacy of the IEP is challenged, the district

13   court's review is limited to an examination of "'objective

14   evidence' indicating whether the child is likely to make progress

15   or regress under the proposed plan."    
Id.   In Walczak there was

16   no objective evidence that the student had regressed, but there

17   was clear evidence of achievement, including her advancement to a

18   higher-level mathematics workbook.     
Id. at 131; see also Frank G.

19   v. Bd. of Educ. of Hyde Park, 
459 F.3d 356, 364 (2d Cir. 2006)

20   (applying "objective evidence" standard to determine whether a

21   parent's placement of a child in private school was appropriate),

22   cert. denied, 
552 U.S. 985 (2007).     There was, therefore,

23   insufficient evidence to support the district court's rejection

24   of the administrative findings.


                                       52
 1                In Grim we considered the district court's

 2   determination that two IEPs developed for a student in two

 3   successive school years were substantively and procedurally

 4   flawed.   
Grim, 346 F.3d at 380.    First, we observed that Rowley's

 5   requirement that courts give "due weight" to administrative

 6   bodies implementing the statute applied to both "substantive" and

 7   "procedural" challenges.    
Id. at 382-83.    Then we concluded that

 8   the district court had not applied the proper standard of review

 9   in rejecting the IHO's and SRO's findings that the IEPs were

10   appropriate.

11                [The district court] justified its conclusion
12                by finding that '[n]either the IHO nor the
13                SRO [reviewing the . . . IEPs] gave
14                appropriate consideration to the experts on
15                dyslexia, who had personal knowledge of the
16                student in question.' Accordingly, in
17                violation of Rowley, the District Court
18                impermissibly chose between the views of
19                conflicting experts on a controversial issue
20                of educational policy -- effective methods of
21                educating dyslexic students -- in direct
22                contradiction of the opinions of state
23                administrative officers who had heard the
24                same evidence.
25   
Id. at 383 (citation omitted; second and third brackets in

26   original).    We therefore decided that a district court must defer

27   to administrative determinations involving educational

28   methodology even where they address the question of whether the

29   state has provided the student with the basic floor of

30   opportunity that the Act requires.      
Id.




                                        53
 1               In Gagliardo, we considered a district court's

 2   conclusion that the school district's placement of a child in a

 3   private school was inappropriate even though state administrative

 4   officers had deemed it appropriate.    
Gagliardo, 489 F.3d at 106-

 5   07.   The district court had based its determination on one

 6   expert's statement that the child needed a school setting that

 7   was "therapeutic or supportive," even though that same expert had

 8   later explained that the "thrust of his recommendation . . . was

 9   that [the child] be placed in a school where trained

10   professionals could work closely with him and assist him as

11   issues associated with his disorder surfaced throughout the day."

12   
Id. at 114 (emphasis omitted).    We thought that reasoning to be

13   flawed.    
Id.   Although the district court had addressed the

14   interpretation of the meaning of expert testimony, as opposed to

15   a dispute over methodology, we nonetheless concluded that the

16   district court owed the findings of the administrative hearing

17   officer deference.    The officer had considered the testimony and

18   issued a decision that was "reasoned and supported by the

19   record."   
Id.    It therefore should not have been disturbed by the

20   district court.    
Id.

21               The parties and amici urge us to articulate a bright-

22   line standard to be applied by district courts in reviewing state

23   administrative decisionmaking in IDEA cases.    See, e.g., M.H.,

24   Council of Parent Attys. & Advocates Amicus Br. 5 (suggesting


                                       54
 1   that the court should "(1) review legal conclusions of

 2   administrative decisions de novo without giving due weight to the

 3   administrative decisions; (2) review mixed questions of law and

 4   fact, such as whether the school district offered a FAPE, de novo

 5   without giving due weight to the administrative decisions; (3)

 6   give due weight to the factual findings of the administrative

 7   decisions that are supported by the preponderance of the

 8   evidence; and (4) defer to the educational policies recommended

 9   by school officials if the court determine[s] that [the] school

10   district complied with the requirements of the Act").    Rowley and

11   subsequent decisions of this Court favor a different approach,

12   however.

13              Rowley left unresolved the question of the weight due

14   administrative determinations because that weight will vary based

15   on the type of determination at issue.   Pursuant to statute, the

16   district court must base its decision on "the preponderance of

17   the evidence."   20 U.S.C. § 1415(i)(2)(C)(iii).   This analysis is

18   complicated, though, by the fact that it occurs in the context of

19   a complex statutory scheme involving institutional actors at

20   different levels and within different branches of state and

21   federal government.

22              As the First Circuit has explained, the standard for

23   reviewing administrative determinations "requires a more critical

24   appraisal of the agency determination than clear-error


                                     55
 1   review . . . but . . . nevertheless[] falls well short of

 2   complete de novo review. . . .      [I]n the course of th[is]

 3   oversight, the persuasiveness of a particular administrative

 4   finding, or the lack thereof, is likely to tell the tale."      Lenn

 5   v. Portland Sch. Comm., 
998 F.2d 1083, 1086-87 (1st Cir. 1993)

 6   (internal citations omitted).

 7                We agree.   In many determinations made by

 8   administrative officers, the district court's analysis will hinge

 9   on the kinds of considerations that normally determine whether

10   any particular judgment is persuasive, for example whether the

11   decision being reviewed is well-reasoned, and whether it was

12   based on substantially greater familiarity with the evidence and

13   the witnesses than the reviewing court.     But the district court's

14   determination of the persuasiveness of an administrative finding

15   must also be colored by an accute awareness of institutional

16   competence and role.     As the Supreme Court made clear in Rowley,

17   the purpose of the IDEA is to provide funding to states so that

18   they can provide a decent education for disabled students

19   consistent with their traditional role in educating their

20   residents.    
Rowley, 458 U.S. at 208 n.30; cf. Schaffer, 
546 U.S.

21   at 53 ("The core of the statute. . . is the cooperative process

22   that it establishes between parents and schools.").       In policing

23   the states' adjudication of IDEA matters, the courts are required




                                        56
 1   to remain conscious of these considerations in determining the

 2   weight due any particular administrative finding.

 3               By way of illustration, determinations regarding the

 4   substantive adequacy of an IEP should be afforded more weight

 5   than determinations concerning whether the IEP was developed

 6   according to the proper procedures.     See 
Cerra, 427 F.3d at 195.

 7   Decisions involving a dispute over an appropriate educational

 8   methodology should be afforded more deference than determinations

 9   concerning whether there have been objective indications of

10   progress.   Compare 
Grim, 346 F.3d at 382-83, with Walczak, 
142

11   F.3d at 130.      Determinations grounded in thorough and logical

12   reasoning should be provided more deference than decisions that

13   are not.    See 
id. at 129.    And the district court should afford

14   more deference when its review is based entirely on the same

15   evidence as that before the SRO than when the district court has

16   before it additional evidence that was not considered by the

17   state agency.

18               II.    Issues for Judicial Review

19               The "IDEA established a two-part inquiry for courts

20   reviewing [state] administrative determinations" under the IDEA.

21   
Grim, 346 F.3d at 381.      First, the court asks whether "the State

22   complied with the procedures set forth in the Act."     
Id.

23   Second, the court asks whether the IEP "developed through the

24   Act's procedures [is] reasonably calculated to enable the child


                                        57
 1   to receive educational benefits."     
Id. (quoting Rowley, 458 U.S.

 2   at 206-07).   If an IEP is deficient -- either procedurally or

 3   substantively -- the court then asks "whether the private

 4   schooling obtained by the parents [for the child] is appropriate

 5   to the child's needs."   
T.P., 554 F.3d at 252.    In answering this

 6   third question, "equitable considerations relating to the

 7   reasonableness of the action taken by the parents are relevant."

 8   
Id. (alteration and internal quotation marks omitted).

 9   A.   Procedural Compliance

10             "The initial procedural inquiry is no mere formality."

11   
Walczak, 142 F.3d at 129.    It acts as "'a safeguard against

12   arbitrary or erroneous decisionmaking.'"    Evans v. Bd. of Educ.

13   of Rhinebeck Cent. Sch. Dist., 
930 F. Supp. 83, 93 (S.D.N.Y.

14   1996) (quoting Daniel R.R. v. State Bd. of Educ., 
874 F.2d 1036,

15   1041 (5th Cir. 1989)).   Of course, not every procedural error

16   will render an IEP legally inadequate.    
Grim, 346 F.3d at 381-82.

17   Relief is warranted only if the alleged procedural inadequacies

18   "(I) impeded the child's right to a [FAPE]; (II) significantly

19   impeded the parents' opportunity to participate in the

20   decisionmaking process regarding the provision of [a FAPE] to the

21   parents' child; or (III) caused a deprivation of educational

22   benefits," 20 U.S.C. § 1415(f)(3)(E)(ii).

23             Under the IDEA and its implementing regulations, an IEP

24   must contain: (1) the student's present levels of academic


                                      58
 1   achievement and functional performance; (2) measurable annual

 2   goals for the child; (3) the method used to measure the student's

 3   progress toward those goals; (4) the special education and

 4   related services that the IEP recommends; (5) an explanation of

 5   the extent to which the student will be educated with

 6   "nondisabled" peers; (6) the reasons for any alternate

 7   assessments; and (7) the start date for recommended services,

 8   their duration, and their frequency.    20 U.S.C. § 1414(d)(1)(A);

 9   8 NYCRR tit. 8 § 200.4(d)(2).

10             Specifically with respect to the goals that must be

11   included in any IEP, the IDEA and its regulations require that

12   the IEP include short-term and long-term academic and non-

13   academic goals for each student, as well as evaluative procedures

14   for measuring a student's progress in achieving the short- and

15   long-term goals contained in the IEP.   See 20 U.S.C.

16   § 1414(d)(1)(A)(i)(III) (directing that IEP include "a

17   description of how the child's progress toward meeting the annual

18   goals . . . will be measured"); 34 C.F.R. § 300.320(a)(2)-(3);

19   NYCRR tit. 8, § 200.4(d)(2)(ii).

20   B.   Substantive Compliance

21             The IDEA does not itself articulate any specific level

22   of educational benefits that must be provided through an IEP.

23   The "'appropriate' education" mandated by IDEA does not require

24   states to "maximize the potential of handicapped children."


                                     59
 1   
Rowley, 458 U.S. at 189-90, 196 n. 21. (quotation marks omitted).

 2   The purpose of the Act was instead "more to open the door of

 3   public education to handicapped children on appropriate terms

 4   than to guarantee any particular level of education once inside."

 5   
Id. at 192; accord 
Walczak, 142 F.3d at 130; Lunceford v. Dist.

 6   of Columbia Bd. of Educ., 
745 F.2d 1577, 1583 (D.C. Cir. 1984)

 7   (Ruth Bader Ginsburg, then-Judge)(because public "resources are

 8   not infinite," federal law "does not secure the best education

 9   money can buy; it calls upon government, more modestly, to

10   provide an appropriate education for each [disabled] child."

11   (emphasis omitted)).

12   C.   Appropriateness of Alternative Placement

13             Parents who think that the state has failed to provide

14   their child with a FAPE as required under the IDEA, 20 U.S.C.

15   § 1412(a)(1)(A), may pay for private services and seek

16   reimbursement from the school district for "'expenses that it

17   should have paid all along and would have borne in the first

18   instance had it developed a proper IEP.'"   
T.P., 554 F.3d at 252
19   (quoting Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471

20   U.S. 359, 370-71 (1985)).

21             In making a claim for reimbursement, "the burden shifts

22   to the parents to demonstrate that the school in which they have

23   chosen to enroll their child is appropriate."   Gagliardo, 
489

24   F.3d at 112.   The educational program at the alternative


                                     60
 1   placement must be "reasonably calculated to enable the child to

 2   receive educational benefit."     
Id. (quotation marks omitted).
 3   However, "even where there is evidence of success [in the private

 4   placement], courts should not disturb a state's denial of IDEA

 5   reimbursement where . . . the chief benefits of the chosen school

 6   are the kind of . . . advantages . . . that might be preferred by

 7   parents of any child, disabled or not."      
Gagliardo, 489 F.3d at

 8   115.   Rather, the "unilateral private placement is only

 9   appropriate if it provides education instruction specifically

10   designed to meet the unique needs of a handicapped child."        
Id.

11   (emphasis in original; quotation marks omitted).

12          III.   Analysis of Claims in M.H.

13   A. Prefatory Observation

14                 The district court in M.H. had before it the

15   conclusions of two different administrative officers, the IHO and

16   the SRO, who came to opposite conclusions as to the procedural

17   and substantive adequacy of the IEP at issue.      In following

18   Grim's instruction as to the deference owed to such

19   administrative decisions by the court because of the

20   administrators' "expertise" in such matters, 
Grim, 346 F.3d at

21   382, the district court thus had available to it sharply

22   conflicting administrative views.       As we will see, in reviewing

23   the SRO's decision, the court often relied on the carefully

24   articulated contrary observations, insights, and conclusions of


                                        61
 1   the IHO.    We think that to have been entirely proper.   See A.C.,

 
2   553 F.3d at 171.

 3               Where the IHO and SRO disagree, reviewing courts are

 4   not entitled to adopt the conclusions of either state reviewer

 5   according to their own policy preferences or views of the

 6   evidence; courts must defer to the reasoned conclusions of the

 7   SRO as the final state administrative determination.      However,

 8   when (as here) the district court appropriately concludes that

 9   the SRO's determinations are insufficiently reasoned to merit

10   that deference, and in particular where the SRO rejects a more

11   thorough and carefully considered decision of an IHO, it is

12   entirely appropriate for the court, having in its turn found the

13   SRO's conclusions unpersuasive even after appropriate deference

14   is paid, to consider the IHO's analysis, which is also informed

15   by greater educational expertise than that of judges, rather than

16   to rely exclusively on its own less informed educational

17   judgment.

18   B.   Procedural Compliance

19               The district court in M.H. concluded that the IEP was

20   procedurally deficient in its formulation of goals for P.H.

21   because the "annual academic goals and objectives stated on

22   P.H.'s IEP are based on P.H.'s expected grade level and not on

23   his actual needs and abilities."      M.H, 
712 F. Supp. 2d. at 155.

24   In so concluding, the court deferred to the IHO's determination,


                                      62
 1   but declined to defer to the SRO's findings to the contrary

 2   because they were not, in the district court's opinion, "thorough

 3   and careful."    
Id. at 162 (internal quotation marks omitted).

 4   Although the IHO based her decision on both the annual academic

 5   goals and the short-term non-academic objectives reflected by the

 6   IEP, the SRO addressed only the annual academic goals.

 7             The district court elaborated:

 8             [t]he upshot of the IHO's determination is
 9             that the short-term objectives were generic
10             because they were not modified to reflect the
11             change in the grade level on P.H.'s annual
12             goals. By reversing only on the basis that
13             the annual goals were not generic, the SRO
14             failed to consider the IHO's more important
15             finding that the short-term objectives were
16             generic.
17   
Id. at 154.     In the district court's view, "the substance of the

18   short-term objectives was necessarily central to the IHO's

19   decision" that the IEP was procedurally flawed.    
Id.

20             The district court also found wanting the IEP's short-

21   term objectives, the "vast majority" of which lack "measurement

22   statement[s]" by which evaluators could track P.H.'s progress.

23   
Id. at 156.     The court again declined to defer to the SRO, who

24   was satisfied with the short-term objectives, because "the SRO

25   failed to address the measurability of P.H.'s academic goals,

26   which formed the entire basis for the IHO's conclusion."    
Id.

27   (emphasis in original).    The SRO based his conclusion instead on

28   "'a review of P.H.'s non-academic goals,' and 'goals and short-



                                       63
 1   term objectives relating to P.H.'s social/emotional needs.'" 
Id.

 2   at 156-57 (brackets omitted; emphases in original).   The district

 3   court concluded that the IHO's decision, which found the short-

 4   term objectives to be deficient, rather than the SRO's, merited

 5   deference because it was "reasoned and supported by the record."

 6   
Id. at 157 (quoting 
Gagliardo, 489 F.3d at 114).

 7              The district court also adopted the IHO's conclusion --

 8   based on a specific factual finding -- that the non-academic

 9   goals contained in the IEP were too advanced for P.H., declining

10   to defer to the SRO's "conclusory" reversal of the IHO on this

11   point.

Id. at 158. The

SRO had stated only that the goals

12   "'comprehensively addressed [P.H.'s] needs in'" the relevant

13   areas.   
Id. (quoting IHO report).
14              The district court rejected the plaintiffs' challenges

15   to the adequacy of the IEP's evaluative schedule for academic and

16   non-academic goals, and the evaluative criteria for P.H.'s short-

17   term objectives, concluding that the SRO's findings on these

18   points were "entitled to deference."   
Id. at 156.

19              The DOE argues that the IEP team "formulated

20   appropriate annual goals and objectives" for P.H., "along with

21   detailed short-term goals," and, further, that even if the goals

22   were not appropriate, they "could be reviewed and, if needed,

23   adjusted throughout the approaching school year."    M.H.

24   Appellant's Br. 47.    The DOE also points out that the IEP


                                      64
 1   contained thirteen pages of annual goals and short term

 2   objectives, contending that they were "reflective of [P.H.'s]

 3   needs and thus would have provided appropriate benchmarks for

 4   [him] in the 2007-2008 school year."   
Id. at 49.

 5               The parents respond that the IEP's goals for P.H. were

 6   not individualized because they were crafted with a rising first-

 7   grader in mind; they were not changed when Ms. Jordan learned

 8   that P.H. was in fact entering kindergarten.   M.H. Appellee's Br.

 9   14-15.   The plaintiffs further argue that the district court was

10   not required to defer to the SRO because the SRO's conclusions

11   were "unsupported by the record as a whole and incorrect as a

12   matter of law . . . ."   
Id. at 39 (internal quotation marks

13   omitted).

14               The district court's decision to disagree with the SRO

15   was proper.   This was not a situation in which the court credited

16   the conclusions that were most consistent with its own subjective

17   analysis.   See, e.g., W.T. & K.T. ex rel. J.T. v. Bd. of Educ. of

18   The Sch. Dist of N.Y.C., 
716 F. Supp. 2d 270, 289 (S.D.N.Y. 2010)

19   ("In light of the uncontradicted testimony, . . . the SRO's

20   finding . . . is entitled to deference."); Connor ex rel. I.C. v.

21   N.Y.C. Dep't of Educ., No. 08-cv-7710-LBS, 
2009 WL 3335760, at

22   *4, 
2009 U.S. Dist. LEXIS 98605, at *14 (S.D.N.Y. Oct. 13, 2009)

23   (deferring to the SRO on a procedural issue where "nothing in the

24   record suggests any reason to diverge" from the SRO's


                                      65
 1   determination).    Rather, the court assessed whether the SRO's

 2   conclusions were grounded in a "thorough and careful" analysis.

 3   
Walczak, 142 F.3d at 129.      The court rejected them only when it

 4   found that they were not supported by a preponderance of the

 5   objective evidence.

 6             With respect to the IEP goals not being individualized,

 7   the IHO noted that CSE coordinator Giselle Jordan herself

 8   testified that she wrote the goals with a rising first-grader in

 9   mind and did not alter them once she learned P.H. should be

10   starting kindergarten.   On the other hand, the SRO noted only

11   that P.H.'s Bracken Score (one of many evaluative tools) was

12   within the average range for his age, and therefore drew the

13   conclusion that any goals listed as appropriate to kindergartners

14   must have been appropriate for P.H.

15             The district court thought the SRO's conclusion to be

16   poorly reasoned.   We agree.    There does not appear to be any

17   doubt that kindergarten level goals were appropriate for P.H.     To

18   be sure, when Ms. Jordan learned at the CSE meeting that P.H. was

19   entering kindergarten, she crossed out "1st grade" and changed it

20   to "kindergarten" for all of P.H.'s annual academic goals.      The

21   question is whether, because Jordan did not also alter the short-

22   term objectives to make them appropriate for kindergarten instead

23   of first grade, the IEP's short-term academic objectives were

24   inappropriate.    See, e.g., M.H. J.A. 1214 (annual goals and


                                        66
 1   short-term objectives).   The SRO ignored this issue despite the

 2   fact that it was the linchpin of the IHO's conclusion that the

 3   academic goals in the IEP were insufficiently individualized to

 4   P.H. and did not accurately reflect his special education needs.

 5   
M.H., 712 F. Supp. 2d at 154.

 6             The IHO's conclusions were further supported by

 7   testimony from Nicklas that the short-term goals for P.H. were

 8   unattainable.   She pointed out, for example, that P.H. was

 9   reading one word at a time, and that he would thus be unable to

10   meet short-term objectives such as "distinguish[ing] between fact

11   and fiction,"   "predict[ing] outcomes," and "identify[ing] the

12   effect of a certain action."    M.H. J.A. 511.   In light of the

13   IHO's thorough analysis on this point and the SRO's failure to

14   consider it, the district court did not err.

15             With regard to the measurability of the IEP's goals,

16   the SRO focused on non-academic ones including the "student's

17   needs in [occupational therapy, physical therapy], speech-

18   language therapy, social interaction, play, communication and

19   socialization, and adaptive physical education," concluding that

20   although the annual goals lacked specificity, the short-term

21   goals were sufficiently "detailed and measurable," and that they

22   "cured any deficiencies in the annual goals."    
Id. at 1374.      The
23   SRO cited several of the short-term objectives in the IEP, which

24   contained either phrases like "teacher observation" to indicate


                                      67
 1   how the observer is to measure P.H.'s progress.   Id.; see also

 2   
id. at 1211-13 (pages from the IEP).   As the district court

 3   noted, however, the SRO ignored the fact that the "vast majority

 4   of objectives in the IEP . . . do not contain any such

 5   measurement statement."   M.H., 
712 F. Supp. 2d at 156; 
id. at

 6   156-57 (stating that "only 17 of the IEP's 85 short-term

 7   objectives contain an evaluation procedure, and, most

 8   importantly, not one of the academic short-term objectives

 9   mentions an evaluation procedure.") (emphasis added).

10             New York State regulations require an IEP to specify

11   "evaluative criteria, evaluation procedures and schedules to be

12   used to measure progress toward meeting the annual goal."      NYCRR

13   tit. 8, § 200.4(d)(2)(iii)(b).   Any short-term objective must

14   also be "measurable."   
Id. at § 200.4(d)(2)(c)(iv).
15             We agree with the district court's decision not to

16   defer to the SRO's determination that the IEP provided sufficient

17   evaluation procedures for the IEP's goals and objectives.      The

18   SRO failed to consider P.H.'s short-term academic objectives at

19   all beyond a conclusory view that all of the "79 short-term

20   objectives" addressed the "student's needs" and that the

21   "majority of the . . . short-term objectives were both detailed

22   and measurable," M.H. J.A. 1374 (emphasis added).    He only

23   provided a detailed analysis of the "short-term objectives

24   relating to the student's social/emotional needs."     
Id.   And


                                      68
 1   although the SRO stated that many of the short-term non-academic

 2   goals "could be observed and measured," in reviewing the more

 3   than eighty short-term objectives referred to in the IEP, only

 4   fifteen expressly referred to "teacher observation" as an

 5   evaluation procedure.   None of the academic short-term objectives

 6   had any express evaluation procedure.

 7             We also agree with the district court's decision to

 8   rely on the IHO's conclusion that the non-academic goals were not

 9   suited to P.H.'s needs and that some were too advanced for P.H.

10   That decision is supported by the evidence in the record,

11   including the testimony of Dr. Nicklas and M.H.   The SRO, on the

12   other hand, did no more than state summarily that the goals

13   "comprehensively addressed the student's needs in th[e] areas."

14   M.H. J.A. 1374.   The SRO failed to point to contrary evidence

15   that he deemed more compelling.    Had he done so, the district

16   court might have properly deferred to the SRO's analysis of the

17   IEP's goals and objectives.   But the SRO's conclusory statement

18   does not evince thorough and well-reasoned analysis that would

19   require deference.

20             We therefore affirm the district court's conclusion

21   that the IEP did not comply with the procedural requirements of

22   the IDEA and that P.H. was denied a FAPE as a result.




                                       69
 1   C.   Substantive Adequacy

 2              1.   Methodology Evidence

 3              The IEP's substantive compliance with the IDEA depends

 4   on a threshold issue upon which the IHO and the SRO disagreed:

 5   whether the reviewing officers could consider the evidence

 6   related to the various methodologies for teaching autistic

 7   children, including ABA and TEACCH.    A parent of a disabled child

 8   initiates the impartial review process by filing a notice

 9   including "complaint[s] . . . with respect to any matter relating

10   to the identification, evaluation, or educational placement of

11   the child, or the provision of a [FAPE] to such child."    20

12   U.S.C. § 1415(b)(6)(A).     The IDEA provides that "[t]he party

13   requesting the due process hearing shall not be allowed to raise

14   issues at the due process hearing that were not raised in the

15   notice . . . unless the other party agrees otherwise."    20 U.S.C.

16   § 1415(f)(3)(B).

17              The plaintiffs do not dispute that they did not raise

18   the issue of teaching methodologies in the impartial hearing

19   request.   However, the IHO did consider the question in issuing

20   her opinion.    And much of the testimony presented by both parties

21   to the IHO related to the question of whether ABA or TEACCH was

22   better for P.H.    The SRO determined that the IHO should not have

23   considered the issue, because the plaintiffs had waived it by

24   omitting the discussion from their hearing request.    M.H. J.A.


                                       70
 1   1372-73 ("[T]he impartial hearing officer exceeded her

 2   jurisdiction in making a determination which was not properly

 3   before her.").

 4              The district court disagreed.   M.H., 
712 F. Supp. 2d at

 5   151-52.   The court noted that at the hearing before the IHO, it

 6   was the DOE that introduced the issue of methodology -- first in

 7   its opening statement, and then in the questioning of its first

 8   witness, Ms. Jordan.   
Id. at 149.    The court therefore decided

 9   that the plaintiffs could not "fairly be barred from rebutting

10   [the DOE's] testimony with evidence of the appropriateness of

11   [the] methodologies, and the DOE [could not] genuinely claim that

12   it was prejudiced by the IHO's consideration of such evidence."

13   
Id. at 150.

14              The DOE appeals from the district court's conclusion on

15   this point, arguing that the concept of "opening the door," upon

16   which the district court relied, is inapplicable in the context

17   of IDEA due process hearings.   It submits that the concept

18   "should not be confused with a jurisdictional limitation, or with

19   a statutory requirement for the consent of the opposing party."

20   M.H. Appellant's Br. 57.   The DOE further contends that it did no

21   more than "[s]ubmit[] evidence that [was] relevant to an issue

22   properly before the hearing officer," viz., the appropriateness

23   of the IEP's recommended placement.    
Id. at 56.   The DOE contends

24   that it never agreed to submit the "different issue" of whether


                                     71
 1   only the ABA methodology was appropriate for P.H. to the IHO.

 2   
Id. (emphasis in original).    The DOE suggests that it should have

 3   been able to elicit evidence regarding the teaching methodologies

 4   because such evidence was relevant to demonstrating that the

 5   6:1:1 placement provided to P.H. was appropriate to his needs,

 6   but that the parents should not have been able to submit their

 7   own evidence that only ABA instruction would be effective for

 8   P.H.

 9                We agree with the district court and the parents that

10   it would be unfair to permit the DOE to argue that its

11   recommended placement for P.H. was appropriate because it offered

12   "various teaching methods," and that the parents' placement was

13   inappropriate because it "offers [only] one type of intervention,

14   . . . which is [ABA]," M.H. J.A. 27-29, but then to bar the

15   parents from contending that the schooling offered in the IEP was

16   inappropriate for P.H. precisely because it offered "various"

17   methodologies, most of which would not work for their son.

18                In other words, it does not follow from the fact that

19   the DOE bears the burden of demonstrating that the IEP provides a

20   FAPE that it should be permitted to argue issues outside the

21   scope of the due process complaint without "opening the door" for

22   the plaintiffs.    The parents, in their complaint letter,

23   challenged the substantive sufficiency of the IEP offered to

24   their son.    The DOE chose to respond by arguing that the IEP's


                                       72
 1   placement was better in part because it utilized multiple

 2   methodologies.    In these circumstances, the statute does not bar

 3   the parents from contesting the appropriateness of the

 4   methodologies offered in the IEP's recommended program.

 5              2.    The Substance of the IEP

 6              The SRO and IHO disagreed on the substantive

 7   sufficiency of the IEP.    The IHO concluded that the IEP failed to

 8   provide a FAPE because the IEP recommended very little ABA

 9   therapy, which had been shown by testimony at the hearing to be

10   "imperative. . . to prevent [P.H.'s] regression."   M.H. J.A.

11   1357.   After excluding the parents' methodology evidence, the SRO

12   reversed the IHO, concluding that the 6:1:1 program "was

13   appropriate to meet the needs of [P.H.]."   M.H. J.A. 1375.    But

14   the SRO compared the IEP-recommended program only to general

15   education; he did not explain why it was more appropriate than

16   either 12:1:1 instruction, which the DOE offers, or 1:1

17   instruction.

18              The district court again declined to defer to the SRO.

19   The court observed that although the SRO excluded the parents'

20   methodology evidence, which, in the district court's words,

21   "tended to show that P.H. required a methodology employing a 1:1

22   student-teacher ratio," M.H., 
712 F. Supp. 2d at 161, the SRO had

23   considered "the DOE's methodology evidence tending to show that

24   the methodologies available within a 6:1:1 program were


                                      73
 1   affirmatively appropriate for P.H.," 
id.     The court then stated

 2   that the IHO had considered "not only the same evidence that the

 3   SRO considered but also the substantial amount of methodology

 4   evidence introduced by Plaintiffs."    
Id.   The court deferred to

 5   the IHO, not the SRO, "find[ing] no reason to disagree with her

 6   decision, particularly because she considered all the evidence

 7   presented to her and because the weights she assigned to

 8   conflicting evidence were undoubtedly influenced by her

 9   educational expertise."    
Id. (citing Grim, 346 F.3d at 382).    The

10   court concluded by opining that "[t]he SRO's decision would have

11   merited such deference had it included consideration of all the

12   evidence in the record."    
Id.

13                The DOE contends that "even if the methodology

14   allegation had been properly presented in the complaint letter,

15   the IHO should not have considered it," because "decisions

16   regarding the best methodology to utilize in teaching special

17   education students . . . should be made by teachers, not by the

18   courts."   M.H. Appellant's Br. 59 (citing 
Rowley, 458 U.S. at

19   207, 210).    According to the DOE, administrative officers and

20   courts are limited to deciding the issue of "whether the

21   placement provided the student an appropriate FAPE, not whether

22   the methodology offered in the school the parents preferred was

23   superior to that offered in the public school."    
Id. at 59-60.




                                       74
 1             The parents reply that the DOE mistakenly "attempts to

 2   separate the method of instruction from the appropriateness of

 3   that instruction."   M.H. Appellee's Br. 35.   They argue that the

 4   IDEA "expressly permits courts to consider the 'content,

 5   methodology, [and] delivery of instruction['] to determine

 6   whether a FAPE has been offered to a child with special needs,"

 7   
id. at 38 (quoting 34 C.F.R. § 300.39(a)(1), although the quoted

 8   text is in § 300.39(b)(3), as part of the definition of

 9   "specially designed instruction") (alterations in original).   The

10   parents also contend that the 6:1:1 program recommended in the

11   IEP was not appropriate for P.H. both because even though it was

12   within a mainstream school building, it actually provided fewer

13   opportunities to interact with mainstream peers than BAC (even as

14   an institution specializing in educating children with autism),

15   and because the testimony and reports by all of P.H.'s treating

16   doctors and by his SEIT indicated that he could not learn

17   successfully in a 6:1:1 environment.

18             We agree with the district court that the SRO's

19   decision, which took only the DOE's evidence into account, does

20   not warrant deference in this regard.   The IHO's discussion of

21   the substantive adequacy of the IEP, while brief, clearly

22   explained that the IHO concluded that the key failing of the IEP

23   was its failure to account for Dr. Salsberg's report -- dated two

24   months before the relevant hearing of the CSE -- that P.H.


                                     75
 1   required intensive 1:1 instruction.    Although courts should

 2   generally defer to the state administrative hearing officers

 3   concerning matters of methodology, the SRO's failure to consider

 4   any of the evidence regarding the ABA methodology and its

 5   propriety for P.H. is more than an error in the analysis of

 6   proper educational methodology.    It is a failure to consider

 7   highly significant evidence in the record.   This is precisely the

 8   type of determination to which courts need not defer,

 9   particularly when the evidence has been carefully considered and

10   found persuasive by an IHO.

11   D.   Appropriateness of the Unilateral Placement

12             Once it is determined that the program offered by an

13   IEP will not "enable the child to receive educational benefits,"

14   
Cerra, 427 F.3d at 192 (quotation marks omitted), the burden

15   shifts to the parents to demonstrate that the school in which

16   they have chosen to enroll their child is appropriate.

17   
Gagliardo, 489 F.3d at 112.   Although their unilateral placement

18   need not "meet the IDEA definition of a [FAPE]," Frank G., 
459

19   F.3d at 364, as would a program provided by the public school

20   system, it must be "reasonably calculated to enable the child to

21   receive educational benefits," 
id. (quotation marks omitted).
22   However, "even where there is evidence of success [in the private

23   placement], courts should not disturb a state's denial of IDEA

24   reimbursement where . . . the chief benefits of the chosen school


                                       76
 1   are the kind of . . . advantages . . . that might be preferred by

 2   parents of any child, disabled or not."   
Gagliardo, 489 F.3d at

 3   115.    Rather, the "unilateral private placement is only

 4   appropriate if it provides education instruction specifically

 5   designed to meet the unique needs of a handicapped child."       
Id.

 6   (emphasis in original; quotation marks omitted).

 7               In this case, the SRO did not reach the question of the

 8   appropriateness of BAC as a private placement for P.H.      M.H. J.A.

 9   1376.   The district court therefore deferred to the IHO, whose

10   conclusions the court found to be "well reasoned and supported by

11   the evidence."   M.H., 
712 F. Supp. 2d at 165.    The IHO was

12   satisfied that the parents had shown that BAC met P.H.'s needs.

13   She relied on, inter alia, the testimony of BAC director Nicklas

14   and on the data provided by BAC documenting P.H.'s progress.         In

15   confirming the IHO's opinion, the district court also rejected

16   the DOE's three reasons for deciding that BAC "should be

17   considered inappropriate for P.H."    M.H., 
712 F. Supp. 2d at 164.

18               First, the DOE argued that the BAC records showed that

19   "BAC was not actually addressing P.H.'s deficits," specifically

20   his handwriting and gross-motor-skills lessons.    
Id.   The

21   district court noted that Nicklas's and Jordan's testimony

22   contradicted each other on this point, and that it was for the

23   IHO to weigh the credibility of each expert's testimony.       
Id.




                                      77
 1               Second, the DOE argued that BAC was too restrictive

 2   because P.H. was not educated with mainstream peers.    
Id. at 165

 3   (citing, inter alia, P. ex rel. Mr. & Mrs. P. v. Newington Bd. of

 4   Educ. (Newington), 
546 F.3d 111, 120 (2d Cir. 2008)).    Under the

 5   Newington test, when evaluating whether a student's placement is

 6   the least restrictive environment possible, as required by the

 7   IDEA, "a court should consider, first, whether education in the

 8   regular classroom, with the use of supplemental aids and

 9   services, can be achieved satisfactorily . . . , and, if not,

10   then whether the school has mainstreamed the child to the maximum

11   extent appropriate."   
Newington, 546 F.3d at 120 (quotation marks

12   omitted).   The district court noted that the parties agreed that

13   P.H. "would not have benefi[t]ted from placement in a regular

14   classroom."   M.H., 
712 F. Supp. 2d at 165.   Citing the IHO's

15   "well reasoned" conclusion that "discrete-trial ABA was the

16   appropriate methodology for educating P.H.," the court deferred

17   to the IHO's finding that BAC was not too restrictive for P.H.

18   
Id.

19               Third, the district court rejected the DOE's argument

20   that BAC was inappropriate because the school did not provide

21   related services on-site, relying upon the IHO's conclusion to

22   that effect and upon the fact that "parents are entitled to more

23   flexibility in their choice of placement than [is] the DOE."      
Id.




                                      78
 1   at 166.   The court also noted that the IHO had considered and

 2   rejected precisely the same argument.   
Id.

 3               The DOE contends again on appeal that the parents

 4   failed to establish that BAC was appropriate.   Specifically, it

 5   reasserts that BAC did not provide related services to P.H.

 6   during the school day, and that the IHO ignored this factor in

 7   finding the school appropriate.    M.H. Appellant's Br. 64-65.    The

 8   DOE argues that in order to be appropriate, a private placement

 9   must provide "an educational program and the necessary support

10   services to appropriately meet [P.H.'s] special education needs."

11   
Id. at 65 (citing, inter alia, Frank 
G., 459 F.3d at 364-65).

12   The DOE further contends that the BAC program was more

13   restrictive than necessary, and that P.H. would have had more

14   opportunities to interact with mainstream peers at P.S. 94.      
Id.

15   at 67-68.
16               The parents concede that BAC does not offer related

17   services during the school day, but argue that the placement

18   nevertheless was appropriate because BAC met P.H.'s educational

19   needs and gave him more access to mainstream peers than P.S. 94

20   would have.   Further, they say, P.H. would have received related

21   services "at a separate location," even under the IEP's

22   recommended program, rendering BAC's alleged shortcoming

23   immaterial.   M.H. Appellee's Br. 49-52.   With regard to related

24   services, the parents contend that BAC offered all of the


                                       79
 1   services P.H. needed to receive educational benefits, and his

 2   related services could be "provided at any time of day."     
Id. at

 3   51.    The plaintiffs also argue that in any event, the IHO's

 4   opinion on this issue warranted deference, and that the DOE's

 5   argument to the contrary asks the court to "[a]ssign[] new

 6   weight[] to the evidence" that the IHO already reviewed, which is

 7   "precisely what a court avoids when it conducts a modified de

 8   novo review . . . ."   
Id. at 54 (internal quotation marks

 9   omitted).

10               In Gagliardo, we concluded that the parents' unilateral

11   placement was inappropriate because the chosen school "did not

12   provide the special education services specifically needed" by

13   the student -- that is, the "therapeutic setting" the student

14   required to "reasonably assure that he would receive educational

15   benefits as required by Rowley."      
Gagliardo, 489 F.3d at 113,

16   114.   Here, it appears that although the related services do to

17   some extent enhance P.H.'s learning ability, there is nothing in

18   the record to suggest that it is necessary that they be provided

19   during the school day in order for P.H. to receive appropriate

20   benefit from them.

21               The DOE also cites Green v. N.Y.C. Dep't of Educ., No.

22   07 Civ. 1259 (PKC), 
2008 WL 919609, 
2008 U.S. Dist. LEXIS 32118
23   (S.D.N.Y. Mar. 31, 2008), in which the district court affirmed

24   the IHO's and SRO's conclusion that the unilateral placement was


                                      80
 1   not appropriate.    Id. at *8, 
2008 U.S. Dist. LEXIS 32118, at *23.

 2   In reaching that conclusion, the Green court noted that "[i]t is

 3   appropriate for the hearing officers and the Court" to take into

 4   consideration the fact that the parents obtained necessary

 5   services not offered through the selected school from an outside

 6   agency.   Id. at *7, 
2008 U.S. Dist. LEXIS 32118 at *19.    This may

 7   indeed be an appropriate consideration, but it is not necessarily

 8   dispositive.   Here, the absence of related services at BAC does

 9   not require a finding that BAC was inappropriate.

10              With regard to mainstreaming opportunities for P.H.,

11   the record suggests that they were not abundant at the

12   alternative placement, P.S. 94.    Indeed, P.H. likely would have

13   had more exposure to and interaction with mainstream peers at

14   BAC.   The DOE argues that opportunities for mainstreaming would

15   be greater at P.S. 94, because the special education placement

16   there shares a building with a mainstream public school.

17   However, as we have noted, according to P.H.'s father, M.H., the

18   P.S. 94 teacher, Oliva Cebrian, told him that the mainstream

19   children who share the P.S. 15 building with P.S. 94 students are

20   "not particularly welcoming to the special ed[ucation] kids."

21   M.H. J.A. 729.     As a result, the special education children use a

22   separate entrance to the school, eat in a separate cafeteria, and

23   do not share academic classes.    
Id.   By contrast, although P.H.

24   participated in a special education-only class at BAC, the


                                       81
 1   facility is also located within a mainstream school, and P.H.

 2   participated in two non-academic classes with mainstream

 3   children.    Unlike the situation at P.S. 94, the BAC students also

 4   share a school entrance, hallways, and playtime with non-disabled

 5   peers.

 6                In light of this unrebutted evidence, the district

 7   court properly agreed with the IHO's conclusion that BAC was an

 8   appropriate unilateral placement for P.H.

 9   E.    Equitable Considerations

10                Finally, both administrative review officers and courts

11   are required to evaluate the equities in considering a tuition

12   reimbursement claim.     Florence County Sch. Dist. Four v. Carter

13   ex rel. Carter, 
510 U.S. 7, 12 (1993).       In this case, the SRO did

14   not reach the issue, although the IHO had done so.      The IHO found

15   "that equitable considerations support tuition reimbursement."

16   
Id. 1357.    The IHO noted that "the parents have cooperated with

17   the CSE.    They provided private evaluations, participated in the

18   IEP meeting, visited the proposed placement and provided timely

19   notice of their intent to place the student in a private school."

20   
Id.      The district court agreed.    It also identified "other

21   evidence in the record" that supports the IHO's conclusion, M.H.,

22   
712 F. Supp. 2d at 167, including that "the DOE was less than

23   forthcoming about the nature of P.H.'s recommended placement,"

24   
id., that the plaintiffs were not provided the opportunity to


                                       82
 1   meaningfully participate in the CSE meeting, 
id., and that the
 2   DOE subsequently "consistently stonewalled M.H.'s inquiries into

 3   the appropriateness" of the school, 
id. at 168.    The DOE does not

 4   appear to contest the district court's or IHO's evaluation of

 5   this evidence on appeal.12   We agree with the district court's

 6   analysis on this point.

 7        IV.   Analysis of Claims in M.S.

 8              The plaintiffs in M.S. contest both the procedural and

 9   the substantive adequacy of their son's IEP.   Central to their

10   argument is the assertion that the magistrate judge overstated

11   the degree to which he was required to defer to the decisions of

12   the administrative hearing officers.    Although we agree that the

13   magistrate judge was too deferential to the State's adjudication

14   process, we think that application of the proper standard of

15   review requires the same outcome.

16   A.   Procedural Compliance

17              The parents asserted before the district court that the

18   "development of the IEP was procedurally deficient [first]


     12
          We take no position on whether anything short of total
     reimbursement for P.H.'s private tuition at BAC would have been
     appropriate under the Supreme Court's decision in 
Carter, 510
     U.S. at 16 ("Total reimbursement will not be appropriate if the
     court determines that the cost of the private education was
     unreasonable."), had the DOE identified before the state
     administrative officers or the district court particular services
     provided by BAC that the district considered unnecessary to the
     provision of a FAPE (and for which reimbursement was therefore
     not required) or had otherwise shown that only a portion of
     P.H.'s tuition cost should be reimbursed.


                                      83
 1   because the parent waived the inclusion of a parent member in the

 2   CSE under duress, and the absence of such a participant in the

 3   meeting denied the plaintiffs active participation in the

 4   development of the IEP." 
Id. (internal quotation marks omitted).

 5   The district court adopted the magistrate judge's recommendation

 6   that it accept the IHO's and SRO's conclusion that even if D.S.'s

 7   parent waived the presence of a parent member at the CSE meeting

 8   under less than ideal circumstances, the "parent still

 9   participated in the development of the IEP."    Because of that

10   participation, the magistrate judge concluded, any violation did

11   not "rise to a denial of [a] FAPE." 
Id. (internal quotation marks
12   omitted).    The magistrate judge noted that "courts have upheld

13   parents' waivers of the participation of a parent member under

14   similar circumstances," and recommended that the court do so in

15   this case, too.    
Id. at 45.   The magistrate judge did not suggest

16   that this recommendation was influenced by his understanding of

17   the deference required by Grim and this Court's other related

18   decisions.    The district court adopted this reasoning.13

19                The parents offer no evidence of duress other than

20   their own testimony, 
id., which the IHO heard and found




     13
        Because the district court adopted the more thorough reasoning
     of the Magistrate Judge in the Report and Recommendation, in this
     section we refer mainly to the R&R. But, of course, we are here
     reviewing the decision of the district court adopting the R&R.


                                       84
 1   unpersuasive on this point, 
id. at 44.14    Without any other

 2   evidence in the record to the contrary, the Court must defer to

 3   the IHO and SRO's findings, which were grounded in credibility

 4   determinations made by the IHO after hearing the relevant

 5   testimony.

 6                Second, the parents contend the DOE violated the IDEA's

 7   requirement that an IEP include measurable goals that are

 8   appropriate for the child's development by photocopying goals

 9   from a prior IEP.    The parents assert that it is impossible for

10   the CSE team to have reviewed all of the photocopied goals in

11   light of the shortness of the meeting and especially Pearl's late

12   arrival.   Only 25 to 30 minutes were left for the CSE to review

13   seventeen pages of goals and "discuss[] and intentionally

14   preserve[]" each one.    M.S. Appellants' Br. 49.   The DOE contends

15   to the contrary that the photocopy was, as the IHO found,

16   "'insignificant,'" "especially given that the 'record was replete

17   with testimony as to D.S.'s very slow learning style,' which

18   would render past information, particularly information that was

19   gathered only a few months prior to the CSE, still very

20   accurate."    M.S. Appellee's Br. at 43 (brackets omitted).

21                The IDEA requires that an IEP be "updated annually," 20

22   U.S.C. § 1414(d)(1)(A)(i)(VIII), and revised "as appropriate," 20



     14
          The SRO did not specifically address the issue.


                                       85
 1   U.S.C. § 1414(d)(4)(A)(ii), see also Schroll v. Bd. of Educ.

 2   Champaign Cmty. Unit. Sch. Dist. #4, No. 06-2200-DGB, 
2007 WL

 3   2681207, at *4-*5, 
2007 U.S. Dist. LEXIS 62478, at *12 (C.D. Ill.

 4   Aug. 10, 2007) ("An IEP is not inappropriate simply because it

 5   does not change significantly on an annual basis[, but] . . . if

 6   the student made no progress under a particular IEP in a

 7   particular year, . . . the propriety of an identical IEP in the

 8   next year may be questionable.").

 9               We agree with the magistrate judge that the

10   photocopying of the goals was "disturbing."   R&R at 49. But the

11   IHO's determination that the photocopy remained sufficient for

12   purposes of arriving at D.S.'s IEP appears to have been based in

13   part on the DOE's witnesses who explained that the goals,

14   although a year old, nonetheless remained appropriate for the

15   child.   Dr. Bowser testified that D.S.'s general academic goals

16   had been discussed at the CSE meeting, and that at least one goal

17   was revised after the CSE meeting, when it became clear that

18   "there was one goal that was either unclear or he had met."     M.S.

19   J.A. 151.   Bowser also testified that some of the goals were

20   photocopied from D.S.'s last CPSE (that is, his pre-school CSE)

21   meeting, which had taken place only a few months prior to the CSE

22   meeting.    In light of that testimony and without more evidence

23   that the photocopied goals were no longer appropriate for D.S.,

24   we agree with the district court's deference to the IHO, who had


                                      86
 1   the benefit of hearing and weighing witness testimony on the

 2   issue.

 3               The plaintiffs' contention that they were not afforded

 4   the opportunity adequately to participate in the CSE meeting also

 5   fails.   At the meeting, D.S.'s parents discussed D.S.'s ability

 6   to learn effectively in a 6:1:1 classroom setting.    They provided

 7   the CSE with additional private evaluations of D.S.   As the IHO

 8   rightly observed, these reports were noted on the IEP checklist,

 9   which indicated that they had been reviewed.   But even assuming

10   to the contrary that the school district failed to review these

11   outside reports, we disagree with the appellants' contention that

12   D.S.'s IEP therefore failed to reflect his then-current needs.

13   The record evidence demonstrates that D.S.'s IEP incorporated

14   performance reports that were more recent than those submitted by

15   the appellants at the CSE meeting.

16               Finally, the appellants suggest that the school

17   district predetermined D.S.'s placement in a 6:1:1 classroom.    We

18   disagree.   In Deal ex rel. Deal v. Hamilton County Bd. of Educ.,

19   
392 F.3d 840 (6th Cir. 2004), cert. denied, 
546 U.S. 936 (2005),

20   the Sixth Circuit held that the plaintiffs were denied meaningful

21   participation in the IEP process because the school district

22   "never even treated a one-on-one ABA program as a viable option."

23   
Id. at 858.   In T.P. ex rel. S.P. v. Mamaroneck Union Free Sch.

24   Dist., 
554 F.3d 247 (2d Cir. 2009), we expressly distinguished


                                      87
 1   Deal.     We observed that "the school district [in Deal] had

 2   consistently rejected parent requests for intensive ABA and told

 3   the parents that 'the powers that be' were not implementing such

 4   programs."    
Id. at 253 (quoting 
Deal, 392 F.3d at 855-56).    Here,

 5   the only evidence indicating that such a policy was in place was

 6   Bowser's testimony that as far as she knew, only 6:1:1 programs

 7   were provided by the district.      This testimony is a far cry from

 8   the evidence that troubled the court in Deal.      In light of the

 9   district's broad discretion to adopt programs that, in its

10   educational judgment, are most pedagogically effective, we cannot

11   simply assume that the decision to rely heavily on a single

12   method or style of instruction is necessarily inappropriate.

13   Bowser's testimony does not tend to establish that the district

14   would not consider a 1:1 placement in an appropriate case.

15   Absent such evidence, the only issue here is whether the

16   district's proposed placement was insufficient to provide a FAPE

17   to D.S.

18   B.           Substantive Adequacy

19                The plaintiffs also challenge the IEP's substantive

20   adequacy because, they argue, the IHO ignored evidence

21   demonstrating that the IEP was not individualized to meet D.S.'s

22   needs and thus failed to consider the record as a whole.     The

23   record as a whole, they say, showed that D.S. required ABA 1:1

24   therapy to progress.


                                         88
 1             As the IHO acknowledged, Dr. Bowser testified that she

 2   chose the 6:1:1 program for D.S. instead of the ABA program

 3   because it would provide careful supervision while addressing the

 4   needs and deficiencies that were outlined in his IEP.      Dr. Bowser

 5   recognized that D.S. was a non-verbal child with significant

 6   deficiencies, including low intellectual functioning, and

 7   difficulties with social interactions.      She also stated that the

 8   team that formed D.S.'s IEP chose the 6:1:1 classroom program

 9   with these deficiencies in mind.       Alex Campbell, the special

10   education teacher in charge of the 6:1:1 class to which the IEP

11   had assigned D.S., also reviewed D.S.'s IEP and testified that

12   she had worked with students with similar deficiencies during the

13   2007-08 school year, and that those students had progressed

14   toward their IEP goals.

15             The proposed 6:1:1 classroom, moreover, provided a

16   transition program for students who had only had ABA therapy.

17   Susan Cruz, the assistant principal at P.S. 15, testified that a

18   student such as D.S. would transition to a setting with multiple

19   methodologies through a program targeted toward his specific

20   needs and experiences with ABA.

21             The IHO credited this testimony.       She concluded that

22   the district had provided evidence of the "specifics as to the

23   appropriateness of [D.S.'s] recommended program and described how

24   he would have met his IEP goals and met the standard of achieving


                                       89
 1   educational benefits from the program."    M.S. S.P.A. 80.

 2   Further, the IHO credited Bowser's testimony that the CSE "wanted

 3   [D.S.] to be in the classroom as much as possible and by having

 4   the therapy within the school setting it would give the therapist

 5   a chance to interact with the classroom teacher and transfer the

 6   skills into the classroom setting."    M.S. S.P.A. 79.

 7               The magistrate judge disagreed with the IHO's

 8   assessment, stating that "[t]he only people . . . who had met and

 9   evaluated [D.S.] insisted that he required 1:1 ABA."     R&R at 54.

10   However, the magistrate judge felt "constrained to defer to the

11   determination of the IHO and SRO," even on a question that he

12   thought called for the simple application of "typical judicial

13   experience," namely, whether the "IHO and SRO properly grappled

14   with the evidence before them."    
Id. at 55.

15               We need not consider the magistrate judge's expressed

16   views in this regard.    The IHO's determination was based on his

17   assessment of the credibility of the witnesses testifying before

18   him, and his own understanding of educational methodology.    See

19   
Grim, 346 F.3d at 383.     It was entitled to deference on that

20   basis.

21               The IHO was presented with conflicting evidence on the

22   question of methodology:    Some witnesses testified that D.S.

23   would thrive in a 6:1:1 program utilizing methodologies other

24   than ABA.   Others, including DOE evaluator Marion Pearl,


                                       90
 1   expressed the view that D.S. required 1:1 ABA therapy on a full-

 2   time basis.   The IHO appears to have given greater credence to

 3   the witnesses who had not met D.S. because, in the IHO's view,

 4   the witnesses who testified for D.S. did not approach the

 5   possibility of his enrollment in a non-ABA program with an open

 6   mind.   While the court may have had doubts about the IHO's

 7   credibility assessment, it did not have further evidence on the

 8   basis of which to challenge this determination.   And this

 9   conclusion is further buttressed by the fact that the IHO's

10   determination concerned the substantive adequacy of the IEP, a

11   question requiring expertise on education of autistic children

12   and to which courts therefore should usually defer to

13   administrative decisionmakers.   See 
Rowley, 458 U.S. at 208.

14              We would be remiss if we did not note that we deeply

15   respect and sympathize with M.S. and L.S.'s efforts on behalf of

16   their son and their desire to obtain the best possible treatment

17   for him under trying circumstances.   But it has not been

18   established by a preponderance of the evidence that the IEP

19   offered to D.S. by the State was inappropriate -- that is, that

20   D.S. was denied a FAPE.

21              Because we conclude that D.S.'s IEP was procedurally

22   and substantively adequate, we need not consider whether his

23   private placement was appropriate.




                                      91
1                              CONCLUSION

2             For the foregoing reasons each of the judgments of the

3   district courts in these cases consolidated for purposes of

4   appeal is affirmed.




                                   92
 1                              APPENDIX

 2                        Glossary of Acronyms


 3   ABA           Applied Behavior Analysis

 4   BAC           Brooklyn Autism Center

 5   CPSE          Department of Education's Committee on Preschool
 6                 Special Education

 7   CSE           Local Committee on Special Education

 8   DOE           New York City Department of Education

 9   D.S.          Son of plaintiffs M.S. and L.S.

10   E.I.          New York's Early Intervention program
11
12   E.K.          Plaintiff, mother of P.H.

13   FAPE          Free Appropriate Public Education

14   FBA           Functional Behavioral Assessment

15   IDEA          Individuals with Disabilities Education Act, 20
16                 U.S.C. § 1400 et seq.

17   IEP           Individualized Education Program

18   IHO           District's Impartial Hearing Officer

19   L.S.          Plaintiff, mother of D.S.
20
21   M.H.          Plaintiff, father of P.H.

22   M.H. J.A.     M.H. Joint Appendix

23   M.S.          Plaintiff, father of D.S.

24   M.S. J.A.     M.S. Joint Appendix

25   M.S. S.P.A.   M.S. Special Appendix

26   NYCRR         N.Y. Comp. Codes R. & Regs.



                                    1
 1   PDD-NOS   Pervasive Developmental Disorder Not Otherwise
 2             Specified

 3   PECS      Picture Exchange Communication System

 4   P.H.      Son of plaintiffs M.H. and E.K.
 5
 6   R&R       Report and Recommendation of the magistrate judge
 7             in D.S.

 8   SEIT      Special Education Itinerant Teacher

 9   SRO       State Review Officer

10   TEACCH    Treatment and Education of Autistic and Related
11             Communication-Handicapped Children, a method for
12             teaching people with autism.




                                2

Source: CourtListener

M.H. & E.K. o/b/o P.H. M.S. & L.S. o/b/o of D.S. v. NYC Dep?t of, 10-2181-cv, 10-2418-cv (2012)

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M.H. & E.K. o/b/o P.H. M.S. & L.S. o/b/o of D.S. v. NYC Dep?t of, 10-2181-cv, 10-2418-cv (2012)

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