13-4187

R.B. v. New York City Dep’t of Educ.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 29th 4 day of October, two thousand fourteen.

5

6 PRESENT: DENNIS JACOBS,

7 CHRISTOPHER F. DRONEY,

8 Circuit Judges,

LEWIS A. KAPLAN,* 9

10 District Judge.

11

12 - - - - - - - - - - - - - - - - - - - -X

13 R.B., individually & on behalf of

14 D.B., M.L.B., individually & on

15 behalf of D.B., 

16 Plaintiffs-Appellants,

17

18 -v.- 13-4187

19

20 NEW YORK CITY DEPARTMENT OF EDUCATION, 

21 Defendant-Appellee.

22 - - - - - - - - - - - - - - - - - - - -X

23

* The Honorable Lewis A. Kaplan, of the United

States District Court for the Southern District of New York,

sitting by designation. 

1
1 FOR APPELLANT: JESSE COLE CUTLER, Law Offices

2 of Regina Skyler & Associates,

3 New York, New York.

4

5 FOR APPELLEE: ELLEN RAVITCH (for Zachary W.

6 Carter, Corporation Counsel of

7 the City of New York, with

8 Pamela Seider Dolgow on the

9 brief), New York, New York.

10

11 Appeal from a judgment of the United States District

12 Court for the Southern District of New York (Nathan, J.).

13

14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15 AND DECREED that the judgment of the district court be

16 AFFIRMED. 

17

18 R.B. and M.L.B. (collectively, “Plaintiffs”),

19 individually and on behalf of their minor child D.B., appeal

20 from the September 30, 2013 judgment of the United States

21 District Court for the Southern District of New York

22 (Nathan, J.), granting summary judgment to

23 defendant-appellee New York City Department of Education

24 (the “DOE”) on Plaintiffs’ claim for tuition reimbursement

25 under the Individuals with Disabilities Education Act

26 (“IDEA”), 20 U.S.C. § 1400 et seq. The district court

27 affirmed the decision of the State Review Officer (“SRO”),

28 which had reversed the decision of the New York State

Impartial Hearing Officer (“IHO”).1 29 Plaintiffs challenge

30 the SRO’s conclusion (affirmed by the district court) that

31 the DOE’s 2010-2011 individualized education program (“IEP”)

32 provided D.B. a Free and Appropriate Public Education

33 (“FAPE”). We assume the parties’ familiarity with the

34 underlying facts, procedural history, and specification of

35 issues for review.

36

1 “[T]he IDEA mandates that states provide

‘impartial due process hearings’” under which parties may

pursue their claims. R.E. v. N.Y.C. Dep’t of Educ., 694

F.3d 167, 175 (2d Cir. 2012) (quoting 20 U.S.C. § 1415(f)). 

In New York, parties first bring their claims before an IHO,

who is subject to review by the SRO. Id. “Either party may

then bring a civil action in state or federal court to

review the SRO’s decision.” Id. 

2
1 D.B., born in 1998, has been diagnosed with autism. 

2 The local Committee on Special Education (“CSE”) has

3 classified him a “child with a disability” eligible to

4 receive an IEP. See 20 U.S.C. § 1401(3). 

5

6 At a February 2010 meeting to develop an IEP for the

7 2010-2011 school year, the CSE team agreed that a 12-month,

8 6:1:1 (students : teachers : paraprofessionals) program in a

9 specialized school was appropriate. Also included in the

10 2010-2011 IEP were occupational therapy (“OT”) (4 x 30

11 minutes per week); speech and language therapy (“SLT”) (4 x

12 30 minutes per week individually, 1 x 30 minutes per week in

13 a group of two); and counseling (1 x 30 minutes per week

14 individually, 1 x 30 minutes per week in a group of two). 

15 D.B.’s special education teacher at the Rebecca School

16 (which he had been attending) agreed with a number of the

17 recommendations and goals of the 2010-2011 IEP, and M.L.B.

18 did not object.

19

20 The DOE’s June 2010 Final Notice of Recommendation from

21 the DOE (dated June 15, 2010), which restated the CSE team’s

22 recommendation of a 6:1:1 class in a specialized school and

23 offered D.B. a placement at P.S. M169’s Robert F. Kennedy

24 School (“P.169”). 

25

26 Plaintiffs ultimately rejected DOE’s recommended

27 placement for 2010-2011 and enrolled D.B. in the Rebecca

28 School, a private special education school that serves

29 children with autism. There, D.B. received thirty-minute

30 sessions of OT four times per week; SLT five times per week;

31 and counseling (once per week individually; and once in a

32 group of two); and art therapy and music therapy, each twice

33 per week. Tuition, for which Plaintiffs seek full

34 reimbursement, was $92,100. 

35

36 On January 25, 2011, M.L.B. and R.B. filed a due

37 process complaint requesting a hearing before an IHO. Dr.

38 Salsberg, D.B.’s neuropsychologist, testified as Plaintiffs’

39 expert witness that he had worked as a paraprofessional

40 prior to attending graduate school, that he visits “dozens

41 of schools a year,” and that he had observed DOE 6:1:1

42 programs “[a]t least five or six [times] in the last few

43 months [prior to July 2011].” Tr. 332, 347. Dr. Salsberg

44 testified that, “if [D.B.] was in a class with [students who

45 had] more emotional or behavioral difficulties,” he was

46 “sure that [D.B.] would regress.” Tr. 334. 

47

3
1 Based on Dr. Salsberg’s testimony, the IHO found that

2 the DOE had failed to offer D.B. a FAPE, and that D.B.’s

3 parents were entitled to tuition reimbursement for the

4 2010-2011 school year. On appeal, the SRO reversed. The

5 district court affirmed the SRO, and this appeal followed. 

6

7 We review de novo a grant of summary judgment by the

8 district court in an IDEA case. R.E. v. N.Y.C. Dep’t of

9 Educ., 694 F.3d 167, 184 (2d Cir. 2012). In doing so, we

10 recognize that “the role of the federal courts in reviewing

11 state educational decisions under the IDEA is

12 circumscribed.” Gagliardo v. Arlington Cent. School Dist.,

13 489 F.3d 105, 112 (2d Cir. 2007) (internal quotation marks

14 omitted). “Although [we] must engage in an independent

15 review of the administrative record and make a determination

16 based on a preponderance of the evidence, . . . such review

17 ‘is by no means an invitation to the courts to substitute

18 their own notions of sound educational policy for those of

19 the school authorities which they review.’” Cerra v.

20 Pawling Cent. School Dist., 427 F.3d 186, 191-92 (2d Cir.

21 2005) (internal quotation marks and citation omitted)

22 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982)). 

23 “We must give ‘due weight’ to the state proceedings, mindful

24 that we lack ‘the specialized knowledge and experience

25 necessary to resolve . . . questions of educational

26 policy.’” R.E., 694 F.3d at 189 (quoting Gagliardo, 489

27 F.3d at 113). We “generally defer to the final decision of

28 the state authorities, even where the reviewing authority

29 disagrees with the hearing officer,” M.H. v. N.Y.C. Dep’t of

30 Educ., 685 F.3d 217, 241 (2d Cir. 2012) (internal quotation

31 marks omitted). Only if the SRO’s decision is

32 “insufficiently reasoned to merit . . . deference,” may we

33 disregard it. Id. at 246.

34

35 To determine IEP compliance with the IDEA, courts

36 consider “whether there were procedural violations of the

37 IDEA,” and “whether the IEP was substantively adequate,

38 namely, whether it was reasonably calculated to enable the

39 child to receive educational benefits.” R.E., 694 F.3d at

40 189-90 (internal quotation marks, alteration, and citations

41 omitted). Plaintiffs challenge both the procedural and

42 substantive adequacy of the 2010-2011 IEP. 

43

44 Procedural Adequacy. “[N]ot every procedural error

45 will render an IEP legally inadequate.” M.H., 685 F.3d at

46 245. Relief is warranted only if procedural inadequacies

47 “(I) impeded the child’s right to a [FAPE]; (II)

4
1 significantly impeded the parents’ opportunity to

2 participate in the decisionmaking process regarding the

3 provision of [a FAPE] to the parents’ child; or (III) caused

4 a deprivation of educational benefits.” 20 U.S.C.

5 § 1415(f)(3)(E)(ii).

6

7 1. Plaintiffs first argue that the IEP team relied

8 upon insufficient information in developing D.B.’s 2010-11

9 IEP, and that the failure to properly reevaluate D.B. prior

10 to the CSE meeting impeded his right to a FAPE. DOE argues

11 that the Court should defer to the SRO, which found that the

12 documents the IEP team reviewed--including a December 2009

13 evaluation of D.B. from the Rebecca School, D.B.’s 2009-2010

14 IEP, and a November 2009 classroom observation of D.B.

15 conducted by the DOE--constituted “sufficient evaluative

16 data with which to formulate [D.B.’s 2010-2011 IEP].” SRO

17 Dec. 14.

18

19 Any child who is eligible to receive a FAPE under the

20 IDEA must be evaluated by his or her school district’s CSE

21 in order to “gather relevant functional, developmental and

22 academic information about the student” necessary to

23 “determine whether the student is a student with a

24 disability and the content of the student’s [IEP].” N.Y.

25 Comp. Codes R. & Regs. Tit. 8 (“8 NYCRR”), § 200.4(b)(1);

26 see also 20 U.S.C. § 1414(a)-(c). New York law requires

27 that a student be evaluated by the CSE prior to his initial

28 IEP and at least once every three years thereafter. See 8

29 NYCRR § 200.4(b)(4). An evaluation may also be conducted if

30 “the [CSE] determines that the [student’s] educational or

31 related services needs . . . warrant a reevaluation or if

32 the student’s parent or teacher requests a reevaluation.” 

33 Id. In conducting its evaluation, the CSE team should “use

34 a variety of assessment tools and strategies” and “not use

35 any single measure or assessment as the sole criterion for .

36 . . determining an appropriate educational program for the

37 child.” 20 U.S.C. § 1414(b)(2)(A), (B).

38

39 Plaintiffs argue that the documents reviewed by the CSE

40 team were inadequate and out-of-date, and that a triennial

41 evaluation should have been conducted (instead of an annual

42 review). The SRO observed that the record was “not clear as

43 to whether the student was required to have a triennial

44 evaluation,” but concluded that because the IEP itself was

45 marked as an “annual review,” and “the parents ha[d] not

46 contested this,” the DOE was not statutorily required to

47 conduct a full evaluation; the review that did occur,

5
1 moreover, was found by the SRO to be wholly adequate. SRO

2 Dec. at 13-14. 

3

4 These conclusions are supported by the record, and

5 accordingly merit deference: first, the CSE meeting could

6 have been rescheduled if either the Plaintiffs or the CSE

7 team thought an evaluation was required; second, M.L.B. knew

8 of her right to provide the CSE team with any evaluative

9 information she wished them to consider; and third, M.L.B.

10 did not object, during or after the CSE meeting, to the

11 evaluative information the CSE reviewed, or request that the

12 CSE perform testing to obtain additional information about

13 D.B.’s educational needs. 

14

15 2. Plaintiffs next contend that the 2010-2011 IEP is

16 procedurally flawed because it did not mandate the exclusive

17 use of the Developmental, Individual-Difference,

18 Relationship-Based Model (“DIR/Floortime”) methodology,

19 which they claim is the only pedagogical methodology

suitable for D.B.2 20 

21

22 Under the IDEA, a student who is entitled to “special

23 education” services should receive “specially designed

24 instruction,” which requires "adapting, as appropriate to

25 the [student’s] needs . . . , the content, methodology, or

26 delivery of instruction.” 34 C.F.R. § 300.39(b)(3); see

27 also 20 U.S.C. § 1401(29). So long as the methodologies

28 referenced in the IEP are “appropriate to the [student’s]

29 needs,” 34 C.F.R. § 300.39(b)(3), the omission of a

30 particular methodology is not a procedural violation. See

31 R.E., 694 F.3d at 192-94.

32 

33 The SRO determined that IEP’s omission of a specific

34 methodology did not deny D.B. a FAPE because “[t]he hearing

35 record does not reflect that [D.B.] could only receive

36 educational benefits through the exclusive use of the

37 DIR/Floortime methodology.” This conclusion is supported by

38 the evidence available at the time of the IEP’s development,

39 and is not undermined by any evidence offered by Plaintiffs. 

40 See also Salsberg Report (explained that “[i]n October,

41 2001, [D.B.] was evaluated by Cecelia McCarton, M.D., who

2 This claim implicates both procedural and

substantive elements of Plaintiffs’ challenge to the 2010-

2011 IEP. To the extent it is also a substantive challenge,

it is rejected for the reasons stated in this section. 

6
1 recommended Applied Behavioral Analysis (ABA) therapy at

2 home and school. [D.B.] then attended an ABA classroom the

3 following year at CPELC with progress noted”). Accordingly,

4 we defer to the SRO’s conclusion that the failure of D.B.’s

5 2010-2011 IEP to mandate the use of DIR/Floortime was not a

6 procedural violation.

7

8 Substantive Adequacy. “[A] school district complies

9 with IDEA’s substantive requirements if a student’s IEP is

10 reasonably calculated to enable the child to receive

11 educational benefit[s].” Cerra, 427 F.3d at 194-95

12 (internal quotation marks omitted). “A school district is

13 not, however, required to furnish every special service

14 necessary to maximize each handicapped child’s potential.” 

15 Id. at 195 (internal quotation marks and citations omitted). 

16 “Rather, a school district fulfills its substantive

17 obligations under the IDEA if it provides an IEP that is

18 likely to produce progress, not regression, and if the IEP

19 affords the student with an opportunity greater than mere

20 trivial advancement.” Id. (internal quotation marks

21 omitted).

22

23 Plaintiffs contend that the SRO’s decision that the

24 recommended 6:1:1 program was appropriate for D.B. was

25 “inadequately reasoned” because the SRO did not discuss the

26 testimony of Dr. Salsberg, upon which the IHO relied. But

27 neither his testimony nor other evidence in the record

28 demonstrates that the P.169 or its 6:1:1 program is

29 inappropriate for D.B; to the contrary, the record suggests

30 that D.B. would have been functionally grouped in the

31 assigned class so as to mitigate the perceived

32 disadvantages. D.B. was within the age and functional

33 ranges of students in the proposed class, and the teacher,

34 Ms. Klemm, testified that D.B. was similar to students in

35 terms of his academic, social, and behavioral needs. 

36

37 Dr. Salsberg’s prior experience and M.L.B.’s

38 observations of particular classes during her visit to P.169

39 may have caused them to worry that P.169 was incapable of

40 adhering to D.B.’s 2010-11 IEP. However, “speculation . . .

41 is not an appropriate basis for unilateral placement.” R.E.,

42 694 F.3d at 195. The rationale for this principle is

43 apparent in M.L.B.’s admission that during her short summer

44 tour of the placement, “I didn’t feel like I got an

45 impression of the actual class that [D.B.] was [to be] in”

46 because “there were no kids there[.]” Tr. 396.

47

7
1 In sum, the record supports the well-reasoned

2 conclusion of the SRO that D.B.’s 2010-2011 IEP was

3 reasonably calculated to produce progress, and could be

4 fully implemented at P.169. Accordingly, we conclude that

5 the 2010-2011 IEP was substantively adequate.

6

7 We have considered all of Plaintiffs’ remaining

8 arguments and find them to be without merit. For the

9 foregoing reasons, and giving appropriate deference to the

10 SRO, we conclude that the 2010-2011 IEP was both

11 procedurally and substantively adequate. As a result,

12 Plaintiffs are not entitled to reimbursement under the IDEA. 

13

14 The judgment of the district court is hereby AFFIRMED. 

15

16

17 FOR THE COURT:

18 CATHERINE O’HAGAN WOLFE, CLERK

19

8