1 15-16-cv B.P. v. New York City Department of Education UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 30 th day of December, tw o thousand fifteen. PRESENT: REENA RAGGI, RICHARD C. WESLEY, CHRISTOPHER F. DRONEY, Circuit Judges.

---------------------------- ---------------------------- -------------- B.P. and S.H., individually and on behalf of S.H., Plaintiffs-Appellants , v. No. 15-16-cv

NEW YORK CITY DEPART MENT OF EDUCATION, Defendant-Appellee

.

-------------------------------------- -------------------------------- APPEARING FOR APPELLANTS: MICHAEL S. KUTZIN, Goldfarb Abrandt Salzman & Kutzin LLP, New York, New York. APPEARING FOR APPELLEE: JULIE STEINER, Assistant Corporation Counsel, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York.2 Appeal from a judgment of the United States District Court for the Southern District of New York (Lorna G. Schofield, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entere d on December 4, 2014, is AFFIRMED. Plaintiffs B.P. and S.H., the parents of S. H., a now 12-year-old autistic child, appeal from an award of summary judgment in favor of defendant New York City Department of Education (“DOE”) on plaintiffs’ claim for re imbursement of privat e education expenses

under the Individuals with Di sabilities Education Act (“IDEA” ), see 20 U.S.C. §§ 1400 et seq. We review an award of summary judg ment de novo, although in the IDEA context we do so mindful that “‘the responsib ility for determining whether a challenged [Individualized Education Plan (“IEP”)] will provide a child with [a free and appropriate public education (“FAPE”)] rests in the firs t instance with admi nistrative hearing and

review officers.’” M.W. ex rel. S.W. v. Ne w York City Dep’t of Educ., 725 F.3d 131, 138 (2d Cir. 2013) (quoting M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 240 (2d Cir. 2012)). We assume the parties’ familiarity with the facts a nd record of prior proceedings, which we reference only as necessary to explain our decision to affirm. 1

1. Appropriateness of the Placement School

Plaintiffs contend that the district court e rred in upholding the state review officer’s (“SRO”) decision not to address the appropria teness of the school placement offered to

1 Citations to “S.D.” refer to the “Sealed Documents” appendices submitted on appeal.3 S.H. See B.P. v. New York City Dep’t of Educ., No. 14 Civ. 1822, 2014 WL 6808130, at *12 (S.D.N.Y. Dec. 3, 2014) (s tating that SRO correctly conclu ded that no such assessment

is warranted where student never attended school). 2 In reaching their conclusions, the SRO and the district c ourt relied on R.E. v. New York City Department of Education, 694 F.3d 167 (2d Cir. 2012), not having the benefit of

our recent decision in M.O. v. New York City Department of Education, 793 F.3d 236, 244 (2d Cir. 2015), which construed R.E. to permit challenges to a proposed placement school when based on more than speculation. M.O. explained that “[w]hile it is speculative to conclude that a school with the capacity to im plement a given student’s IEP will simply fail to adhere to that plan’s mandates, it is not speculative to find that an IEP cannot be implemented at a proposed school that lacks th e services required by the IEP.” Id. (citing R.E. v. New York City Dep’t of Educ., 694 F.3d at 195). M.O. further clarified that

2 Although the SRO agreed with DOE that “any inquiry into the appropriateness of the assigned public school site is speculative because the parents unilaterally enrolled the student at the Rebecca School prior to the be ginning of the 2012-13 school year,” S.D. 24, the SRO nevertheless “assum[ed] for the sake of argument that the student had attended the district’s recommended program at the assigned p ublic school site,” analyzed the claim on its merits, and concluded that “the evidence in the hearing record would not support the conclusion that the district w ould have violated the FAPE le gal standard related to IEP implementation” if S.H. had actually attende d the placement school. Id. 26; see id. at 26

− 28 (analyzing plaintiffs’ conten tions that placement school was inappropriate because it allegedly could not provide required rela ted services, did not have sensory gym, and posed transportation problems; and ultimately rejecting argum ent that “had the student attended the assigned school the district would have deviated from the student’s IEP in a material or substantial way th at would have resulted in a fa ilure to offer the student a FAPE”). Moreover, the IHO also concl uded that the placement school was “an appropriate site offer.” Id. 60.4 challenges to proposed placements can “trigger a duty on the part of the school district to provide evidence regarding [the placemen t school’s] adequacy.” Id. at 245. Thus, the district court was not preclude d from considering the appropriateness of the placement offered to S.H. solely because S.H. never attended the school. See id. at 244 (stating that parents need not send child to facially deficient placement school prior to challenging the school’s capacity to implemen t child’s IEP). Neve rtheless, after an independent review of the record, we conclu de that any error was harmless because DOE adduced sufficient evidence of the placemen t school’s adequacy to support the SRO’s underlying decision that DOE provided S.H. with a FAPE. See Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 4 73, 482 (2d Cir. 2014) (“[W]e are entitled to affirm the judgment on any basis that is supported by the record.”). In urging otherwise, plainti ffs take issue with informati on provided during their tour of the placement school, and contend that DO E should be estopped from remedying faulty information given to parents through subseq uent testimony. M.O. forecloses this argument. See M.O. v. New York City Dep’ t of Educ., 793 F.3d at 245 (recognizing that school district must produce evidence as to adequacy of placement school when confronted with permissible prospective challenge). School districts bear the bur den of proving that an offered placement was appropriate. To estop them from doing so on the ground asserted by plaintiffs would essentially impose strict liab ility for reimbursement based on any misinformation provided to parents prior to enrollment. This runs counter to Supreme5 Court precedent stating that parents who reject a proposed placement school and unilaterally place their child in another school “during the pendency of review proceedings

. . . do so at their own financial risk.” School Comm. of Town of Burlington v. Department of Educ. of Mass., 471 U.S. 359, 373

− 74 (1985). Thus, insofar as plaintiffs relied on information from a single school official, they bore the risk th at the school district would, in fact, satisfy its burden of proving the approp riateness of the challenged placement. Here, the record sufficiently demonstrates that the placement school had the ability to implement fully S.H.’s IE P, despite any misinformation provided to plaintiffs. For instance, plaintiffs complain th at they were told that the pl acement school di d not have the requisite staffing or space to provide S.H. with the “pull-out” occupational therapy required by his IEP. 3 DOE, however, adduced testimony that the placement school had two occupational therapists available five da ys a week, who could provide therapy in a

service suite where each ha d his or her own desk. 4 See S.D. 173. This was sufficient to carry DOE’s burden.

3 S.H.’s IEP required 1:1 occupational therapy four times per week for 30 minutes in a “separate location provider’s room” and 2:1 occupational therapy once a week for 30 minutes in a “separate location provider’s room.” S.D. 674

− 75.

4 This testimony was not impermis sibly retrospective because it merely “explain[ed] or justif[ied] what is listed in the written IEP,” and did not claim “that certain services not listed in the IEP would actually ha ve been provided to the child if he or she had attended the school district’s proposed placement.” R.E. v. New York City Dep’t of Educ., 6946 The same conclusion obtains with re spect to IEP-mandated “pull-out” speech therapy. See, e.g., S.D. 254 (social worker testifying that speech language therapy is provided in several locations, including co unseling suite or empty classroom and that therapist will find separate locati on to meet child’s IEP needs). As for plaintiffs’ claim that the school lacked an adequate sensory gym, S.H.’s IEP did not specifically require access to such a f acility. Rather, it dictated that S.H. have access to sensory equipment. See, e.g., S.D. 670 (stating as annua l occupational therapy goal that S.H. “improve sensory processi ng and regulation needed to understand and effectively interact with people and objects” and contemplating advancement in “sensory input during sensorimotor activities (e.g., tr eadmill, swinging, trampoline, etc.)”). Although plaintiffs claim that the placement school’s sens ory gym contained only one green ball, evidence at the due process hearing established that the school’s sensory equipment included weighted vests, balanci ng balls and beams, mats, and a trampoline,

which was sufficient to ensure that S. H. received a FAPE in this respect. 5 To the extent there was conflicting testim ony from B.P. and the social worker who served as plaintiffs’ placement school tour gu ide as to what informat ion was relayed on the

F.3d at 185. Nor did the te stimony concern “a modification that is materially different from the IEP.” Id.

5 Insofar as plaintiffs claim th at the placement school posed transportation issues, S.H.’s IEP did not require special accommodations for transportation. See S.D. 678. Insofar as plaintiffs’ transportation claim is a substantive attack on the IEP couched as a challenge to the adequacy of the placement sc hool, it is impermissible. See M.O. v. New York City Dep’t of Educ., 793 F.3d at 245.7 tour, the initial hearing officer (“IHO”) was in the best position to assess credibility, which

he did in favor of the social worker. The reco rd provides no reason to disturb that finding. See M.H. v. New York City Dep’t of Educ., 685 F.3d at 25 8 (according deference to IHO credibility assessment); accord C.F. ex rel. R.F. v. New York City Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014). In sum, the record indicates that th e designated school was an appropriate placement given S.H.’s needs and the school’s capabilities, and that S.H. was not denied a FAPE by virtue of that assignment. Accord ingly, any error in the SRO’s and district court’s pre-M.O. construction of the re view limits of R.E. was harmless.

2. Due Process Complaint We identify no error in the district cour t’s decision to not address six claims that plaintiffs failed expressly to raise in th eir due process complaint. See 20 U.S.C. § 1415(f)(3)(B) (stating that party requesting due process hearing sha ll not be allowed to raise issues at hearing that were not raised in due process complaint unless other party agrees). The due process compla int serves as fair notice to the school district, and gives the district 30 days to resolve the complaint to the parents’ satisfaction before a hearing. See id. § 1415(f)(1)(B)(ii). While “the waiver ru le is not to be mechanically applied,” and the IDEA “does not require that alleged defici encies be detailed in any formulaic manner,” parents cannot hold back claims until after expiration of the reso lution period. C.F. ex rel. R.F. v. New York City Dep’ t of Educ., 746 F.3d at 78.8 Here, plaintiffs claim that “most of the i ssues that the SRO precluded, and that the District Court affirmed, were directly referen ced in Plaintiffs’ letter of July 9[, 2012],

which was cross-referenced in their Due Process complaint.” Appellant’s Br. 24. As the district court recognized, however, plaintiffs ’ letter is referenced in the due process complaint primarily “as part of [a] chronolog y of events,” not as an issue requiring

resolution. B.P. v. New Yo rk City Dep’t of Educ., 2014 WL 6808130, at *8. Moreover, while the due process co mplaint drew attention to particul ar aspects of the July 9, 2012 letter, including plaintiffs’ conc erns regarding the appropriateness of the placement school, it nowhere mentioned any of th e six claims plaintiffs rais ed in the district court. 6 Thus, like the district court, we conclude that plain tiffs failed to give DO E proper notice of these

claims. Plaintiffs argue that C.F. ex rel. R.F. v. New York City Department of Education, 746 F.3d 68 (2d Cir. 2014), allows federal courts to hear claims not raised in a due process complaint if either the SRO or IHO made a reco rd regarding the issue or if the issue goes to the heart of the dispute. We are not persuaded. First, C.F. indicates that if a matter goes to the heart of the dispute and is discussed by both the IHO and the SR O, the matter will not necessarily be foreclosed by the failure to raise it in a due proce ss complaint. See id. at 78.

6 In the due process complaint, pl aintiffs stated that they “ notified the DOE of the reasons for their rejection of [the placement school] on July 9th.” S.D. 664. Such a general statement lacked the specificity necessary to notify DOE of plaintiffs’ intent to pursue administratively every issue mentioned in th at letter. See 20 U.S. C. § 1415(b)(7)(A)(ii) (stating that due process complaint shall include “description of the nature of the problem” and “a proposed resolution”).9 Second, and more importantly, in C.F. the issue deemed waived was not completely absent from the due process complaint. Rather, there, the “due process complaint plainly alleged that the Department failed to appropriately develop plans for [the child’s] behavior” and “the proposed solution was a recommendation th at [the child] continue . . . in a 1:1 placement.” Id. Thus, in C.F., we held that the “Plaintiffs’ allegation that the Department failed to consider a 1:1 sta ffing ratio” was not waived because it was encompassed within specific clai ms explicitly raised in the due process complaint. Id. Here, the six claims at issue were not encompa ssed similarly by specific allegations within the due process complaint, and the resolutions proposed ther ein did not directly address any of the six claims. Thus, C.F. does not support plaintiffs’ argument. Accordingly, we affirm the distri ct court’s decision as to waiver.

3. Conclusion We have considered plaintiffs’ remaini ng arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.

FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court