13-4187 R.B. v. New York City Dep’t of Educ.



### UNITED STATES COURT OF APPEALS
**FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C** **ITATION TO A SUMMARY ORDER FILED**

**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**

**DOCUMENT FILED WITH THIS COURT ,** **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX OR AN**

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

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

**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 29 th** **day of October, two thousand fourteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **CHRISTOPHER F. DRONEY,** 7 **Circuit Judges ,**  8 **LEWIS A. KAPLAN,** ***** 9 **District Judge**

**.** 10 11

- - - - - - - - - - - - - - - - - - - -X 12 **R.B., individually & on behalf of** 13 **D.B., M.L.B., individually & on** 14 **behalf of D.B.,** 15 **Plaintiffs-Appellants ,**  16 17 **-v.- 13-4187** 18 19 **NEW YORK CITY DEPARTMENT OF EDUCATION,** 20 **Defendant-Appellee**

**.** 21

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* The Honorable Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation.

1**FOR APPELLANT:** JESSE COLE CUTLER, Law Offices 1 of Regina Skyler & Associates, 2 New York, New York. 3 4
**FOR APPELLEE:** ELLEN RAVITCH (forZachary W. 5 Carter, Corporation Counsel of 6 the City of New York, with 7 Pamela Seider Dolgow on the 8 brief ), New York, New York. 9 10 Appeal from a judgment of the United States District 11 Court for the Southern District of New York (Nathan, J. ). 12 13 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 14
**AND DECREED**that the judgment of the district court be 15

**AFFIRMED**

. 16 17 R.B. and M.L.B. (collectively, “Plaintiffs”), 18 individually and on behalf of their minor child D.B., appeal 19 from the September 30, 2013 judgment of the United States 20 District Court for the Southern District of New York 21 (Nathan, J. ), granting summary judgment to 22 defendant-appellee New York City Department of Education 23 (the “DOE”) on Plaintiffs’ claim for tuition reimbursement 24 under the Individuals with Disabilities Education Act 25 (“IDEA”), 20 U.S.C. § 1400 et seq. The district court 26 affirmed the decision of the State Review Officer (“SRO”), 27 which had reversed the decision of the New York State 28 Impartial Hearing Officer (“IHO”). 1Plaintiffs challenge 29 the SRO’s conclusion (affirmed by the district court) that 30 the DOE’s 2010-2011 individualized education program (“IEP”) 31 provided D.B. a Free and Appropriate Public Education 32 (“FAPE”). We assume the parties’ familiarity with the 33 underlying facts, procedural history, and specification of 34 issues for review. 35 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.

2D.B., born in 1998, has been diagnosed with autism. 1 The local Committee on Special Education (“CSE”) has 2 classified him a “child with a disability” eligible to 3 receive an IEP. See20 U.S.C. § 1401(3). 4 5 At a February 2010 meeting to develop an IEP for the 6 2010-2011 school year, the CSE team agreed that a 12-month, 7 6:1:1 (students : teachers : paraprofessionals) program in a 8 specialized school was appropriate. Also included in the 9 2010-2011 IEP were occupational therapy (“OT”) (4 x 30 10 minutes per week); speech and language therapy (“SLT”) (4 x 11 30 minutes per week individually, 1 x 30 minutes per week in 12 a group of two); and counseling (1 x 30 minutes per week 13 individually, 1 x 30 minutes per week in a group of two). 14 D.B.’s special education teacher at the Rebecca School 15 (which he had been attending) agreed with a number of the 16 recommendations and goals of the 2010-2011 IEP, and M.L.B. 17 did not object. 18 19 The DOE’s June 2010 Final Notice of Recommendation from 20 the DOE (dated June 15, 2010), which restated the CSE team’s 21 recommendation of a 6:1:1 class in a specialized school and 22 offered D.B. a placement at P.S. M169’s Robert F. Kennedy 23 School (“P.169”). 24 25 Plaintiffs ultimately rejected DOE’s recommended 26 placement for 2010-2011 and enrolled D.B. in the Rebecca 27 School, a private special education school that serves 28 children with autism. There, D.B. received thirty-minute 29 sessions of OT four times per week; SLT five times per week; 30 and counseling (once per week individually; and once in a 31 group of two); and art therapy and music therapy, each twice 32 per week. Tuition, for which Plaintiffs seek full 33 reimbursement, was $92,100. 34 35 On January 25, 2011, M.L.B. and R.B. filed a due 36 process complaint requesting a hearing before an IHO. Dr. 37 Salsberg, D.B.’s neuropsychologist, testified as Plaintiffs’ 38 expert witness that he had worked as a paraprofessional 39 prior to attending graduate school, that he visits “dozens 40 of schools a year,” and that he had observed DOE 6:1:1 41 programs “[a]t least five or six [times] in the last few 42 months [prior to July 2011].” Tr. 332, 347. Dr. Salsberg 43 testified that, “if [D.B.] was in a class with [students who 44 had] more emotional or behavioral difficulties,” he was 45 “sure that [D.B.] would regress.” Tr. 334. 46 47

3Based on Dr. Salsberg’s testimony, the IHO found that 1 the DOE had failed to offer D.B. a FAPE, and that D.B.’s 2 parents were entitled to tuition reimbursement for the 3 2010-2011 school year. On appeal, the SRO reversed. The 4 district court affirmed the SRO, and this appeal followed. 5 6 We review de novoa grant of summary judgment by the 7 district court in an IDEA case. R.E. v. N.Y.C. Dep’t of 8 Educ. , 694 F.3d 167, 184 (2d Cir. 2012). In doing so, we 9 recognize that “the role of the federal courts in reviewing 10 state educational decisions under the IDEA is 11 circumscribed.” Gagliardo v. Arlington Cent. School Dist.

, 12 489 F.3d 105, 112 (2d Cir. 2007) (internal quotation marks 13 omitted). “Although [we] must engage in an independent 14 review of the administrative record and make a determination 15 based on a preponderance of the evidence, . . . such review 16 ‘is by no means an invitation to the courts to substitute 17 their own notions of sound educational policy for those of 18 the school authorities which they review.’” Cerra v. 19 Pawling Cent. School Dist. , 427 F.3d 186, 191-92 (2d Cir. 20 2005) (internal quotation marks and citation omitted) 21 (quoting Bd. of Educ. v. Rowley , 458 U.S. 176, 206 (1982)). 22 “We must give ‘due weight’ to the state proceedings, mindful 23 that we lack ‘the specialized knowledge and experience 24 necessary to resolve . . . questions of educational 25 policy.’” R.E. , 694 F.3d at 189 (quoting Gagliardo , 489 26 F.3d at 113). We “generally defer to the final decision of 27 the state authorities, even where the reviewing authority 28 disagrees with the hearing officer,” M.H. v. N.Y.C. Dep’t of 29 Educ. , 685 F.3d 217, 241 (2d Cir. 2012) (internal quotation 30 marks omitted). Only if the SRO’s decision is 31 “insufficiently reasoned to merit . . . deference,” may we 32 disregard it. Id. at 246. 33 34 To determine IEP compliance with the IDEA, courts 35 consider “whether there were procedural violations of the 36 IDEA,” and “whether the IEP was substantively adequate, 37 namely, whether it was reasonably calculated to enable the 38 child to receive educational benefits.” R.E. , 694 F.3d at 39 189-90 (internal quotation marks, alteration, and citations 40 omitted). Plaintiffs challenge both the procedural and 41 substantive adequacy of the 2010-2011 IEP. 42 43 Procedural Adequacy. “[N]ot every procedural error 44 will render an IEP legally inadequate.” M.H. , 685 F.3d at 45 245. Relief is warranted only if procedural inadequacies 46 “(I) impeded the child’s right to a [FAPE]; (II) 47

4significantly impeded the parents’ opportunity to 1 participate in the decisionmaking process regarding the 2 provision of [a FAPE] to the parents’ child; or (III) caused 3 a deprivation of educational benefits.” 20 U.S.C. 4 § 1415(f)(3)(E)(ii). 5 6 **1.**Plaintiffs first argue that the IEP team relied 7 upon insufficient information in developing D.B.’s 2010-11 8 IEP, and that the failure to properly reevaluate D.B. prior 9 to the CSE meeting impeded his right to a FAPE. DOE argues 10 that the Court should defer to the SRO, which found that the 11 documents the IEP team reviewed--including a December 2009 12 evaluation of D.B. from the Rebecca School, D.B.’s 2009-2010 13 IEP, and a November 2009 classroom observation of D.B. 14 conducted by the DOE--constituted “sufficient evaluative 15 data with which to formulate [D.B.’s 2010-2011 IEP].” SRO 16 Dec. 14. 17 18 Any child who is eligible to receive a FAPE under the 19 IDEA must be evaluated by his or her school district’s CSE 20 in order to “gather relevant functional, developmental and 21 academic information about the student” necessary to 22 “determine whether the student is a student with a 23 disability and the content of the student’s [IEP].” N.Y. 24 Comp. Codes R. & Regs. Tit. 8 (“8 NYCRR”), § 200.4(b)(1); 25 see also20 U.S.C. § 1414(a)-(c). New York law requires 26 that a student be evaluated by the CSE prior to his initial 27 IEP and at least once every three years thereafter. See8 28 NYCRR § 200.4(b)(4). An evaluation may also be conducted if 29 “the [CSE] determines that the [student’s] educational or 30 related services needs . . . warrant a reevaluation or if 31 the student’s parent or teacher requests a reevaluation.” 32 Id. In conducting its evaluation, the CSE team should “use 33 a variety of assessment tools and strategies” and “not use 34 any single measure or assessment as the sole criterion for . 35 . . determining an appropriate educational program for the 36 child.” 20 U.S.C. § 1414(b)(2)(A), (B). 37 38 Plaintiffs argue that the documents reviewed by the CSE 39 team were inadequate and out-of-date, and that a triennial 40 evaluation should have been conducted (instead of an annual 41 review). The SRO observed that the record was “not clear as 42 to whether the student was required to have a triennial 43 evaluation,” but concluded that because the IEP itself was 44 marked as an “annual review,” and “the parents ha[d] not 45 contested this,” the DOE was not statutorily required to 46 conduct a full evaluation; the review that did occur, 47

5moreover, was found by the SRO to be wholly adequate. SRO 1 Dec. at 13-14. 2 3 These conclusions are supported by the record, and 4 accordingly merit deference: first, the CSE meeting could 5 have been rescheduled if either the Plaintiffs or the CSE 6 team thought an evaluation was required; second, M.L.B. knew 7 of her right to provide the CSE team with any evaluative 8 information she wished them to consider; and third, M.L.B. 9 did not object, during or after the CSE meeting, to the 10 evaluative information the CSE reviewed, or request that the 11 CSE perform testing to obtain additional information about 12 D.B.’s educational needs. 13 14 **2.** Plaintiffs next contend that the 2010-2011 IEP is 15 procedurally flawed because it did not mandate the exclusive 16 use of the Developmental, Individual-Difference, 17 Relationship-Based Model (“DIR/Floortime”) methodology, 18 which they claim is the only pedagogical methodology 19 suitable for D.B. 2 20 21 Under the IDEA, a student who is entitled to “special 22 education” services should receive “specially designed 23 instruction,” which requires "adapting, as appropriate to 24 the [student’s] needs . . . , the content, methodology, or 25 delivery of instruction.” 34 C.F.R. § 300.39(b)(3); see 26 also20 U.S.C. § 1401(29). So long as the methodologies 27 referenced in the IEP are “appropriate to the [student’s] 28 needs,” 34 C.F.R. § 300.39(b)(3), the omission of a 29 particular methodology is not a procedural violation. See 30
R.E. , 694 F.3d at 192-94. 31 32 The SRO determined that IEP’s omission of a specific 33 methodology did not deny D.B. a FAPE because “[t]he hearing 34 record does not reflect that [D.B.] could only receive 35 educational benefits through the exclusive use of the 36 DIR/Floortime methodology.” This conclusion is supported by 37 the evidence available at the time of the IEP’s development, 38 and is not undermined by any evidence offered by Plaintiffs. 39 See alsoSalsberg Report (explained that “[i]n October, 40 2001, [D.B.] was evaluated by Cecelia McCarton, M.D., who 41

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.

6recommended Applied Behavioral Analysis (ABA) therapy at 1 home and school. [D.B.] then attended an ABA classroom the 2 following year at CPELC with progress noted”). Accordingly, 3 we defer to the SRO’s conclusion that the failure of D.B.’s 4 2010-2011 IEP to mandate the use of DIR/Floortime was not a 5 procedural violation. 6 7 Substantive Adequacy. “[A] school district complies 8 with IDEA’s substantive requirements if a student’s IEP is 9 reasonably calculated to enable the child to receive 10 educational benefit[s].” Cerra , 427 F.3d at 194-95 11 (internal quotation marks omitted). “A school district is 12 not, however, required to furnish every special service 13 necessary to maximize each handicapped child’s potential.” 14 Id. at 195 (internal quotation marks and citations omitted). 15 “Rather, a school district fulfills its substantive 16 obligations under the IDEA if it provides an IEP that is 17 likely to produce progress, not regression, and if the IEP 18 affords the student with an opportunity greater than mere 19 trivial advancement.” Id. (internal quotation marks 20 omitted). 21 22 Plaintiffs contend that the SRO’s decision that the 23 recommended 6:1:1 program was appropriate for D.B. was 24 “inadequately reasoned” because the SRO did not discuss the 25 testimony of Dr. Salsberg, upon which the IHO relied. But 26 neither his testimony nor other evidence in the record 27 demonstrates that the P.169 or its 6:1:1 program is 28 inappropriate for D.B; to the contrary, the record suggests 29 that D.B. would have been functionally grouped in the 30 assigned class so as to mitigate the perceived 31 disadvantages. D.B. was within the age and functional 32 ranges of students in the proposed class, and the teacher, 33 Ms. Klemm, testified that D.B. was similar to students in 34 terms of his academic, social, and behavioral needs. 35 36 Dr. Salsberg’s prior experience and M.L.B.’s 37 observations of particular classes during her visit to P.169 38 may have caused them to worry that P.169 was incapable of 39 adhering to D.B.’s 2010-11 IEP. However, “speculation . . . 40 is not an appropriate basis for unilateral placement.” R.E.

, 41 694 F.3d at 195. The rationale for this principle is 42 apparent in M.L.B.’s admission that during her short summer 43 tour of the placement, “I didn’t feel like I got an 44 impression of the actual class that [D.B.] was [to be] in” 45 because “there were no kids there[.]” Tr. 396. 46 47

7In sum, the record supports the well-reasoned 1 conclusion of the SRO that D.B.’s 2010-2011 IEP was 2 reasonably calculated to produce progress, and could be 3 fully implemented at P.169. Accordingly, we conclude that 4 the 2010-2011 IEP was substantively adequate. 5 6 We have considered all of Plaintiffs’ remaining 7 arguments and find them to be without merit. For the 8 foregoing reasons, and giving appropriate deference to the 9 SRO, we conclude that the 2010-2011 IEP was both 10 procedurally and substantively adequate. As a result, 11 Plaintiffs are not entitled to reimbursement under the IDEA. 12 13 The judgment of the district court is hereby **AFFIRMED**

. 14 15 16 FOR THE COURT: 17 CATHERINE O’HAGAN WOLFE, CLERK 18 19

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