15

‐ 4076

A.M. v. N.Y.C. Dep’t of Educ.



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

______________

August Term, 2016

(Argued: November 16, 2016 Decided: January 10, 2017)

Docket No. 15

‐ 4076

_____________

A.M., individually and on behalf of E.H., a child with a

disability,

Plaintiff

‐ Appellant

,

v.

NEW YORK CITY DEPARTMENT OF EDUCATION,

Defendant

‐ Appellee

. *



### ______________

* The Clerk of Court is directed to amend the official caption to

conform with the above.2 

### Before:

KEARSE, WESLEY, and DRONEY, Circuit Judges

.

______________

Appeal from an order of the United States District Court

for the Southern District of New York (Oetken, J. ), entered on

December 7, 2015, granting judgment for Defendant

‐ Appellee

New York City Department of Education (“DOE”) and denying

Plaintiff

‐ Appellant A.M., on behalf of herself and her disabled,

autistic son, E.H., relief under the Individuals with Disabilities

Education Act, 20 U.S.C. §§ 1400 et seq

. In denying A.M. relief,

the District Court concluded that E.H. was afforded a free

appropriate public education (“FAPE”) by the DOE for the 2012–

2013 school year. We disagree and hold that the DOE failed to

offer E.H. a FAPE because the substance of the individualized

education program formulated for E.H. was legally inadequate.

Accordingly, we VACATE the judgment of the District Court

and REMAND for further proceedings.



### ______________

JASON HALE STERNE, Cuddy Law Firm, P.C.,

Auburn, NY, for Plaintiff

‐ Appellant

.

ANDREW A. FEINSTEIN, Andrew A. Feinstein, LLC,

Mystic, CT, for Amicus Curiae Council of Parent

Attorneys and Advocates, in support of Plaintiff

‐ Appellant

.

AARON M. BLOOM, Assistant Corporation Counsel

(Richard Dearing and Devin Slack, on the brief ), for

Zachary W. Carter, Corporation Counsel,

New York, NY, for Defendant

‐ Appellee

.3 

### ______________

WESLEY, Circuit Judge :

Before the court is an action brought under the

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

§§ 1400 et seq

., by Plaintiff

‐ Appellant A.M., on behalf of herself

and her autistic son, E.H., against Defendant

‐ Appellee the New

York City Department of Education (“DOE”). In May 2012, the

DOE convened a meeting of the local Committee on Special

Education (“CSE”) for the purpose of formulating an

individualized education program (“IEP”) for E.H. for the 2012–

2013 school year. Believing the program to be inadequate for her

son, A.M. continued E.H.’s enrollment at a private special

education school. Subsequently, A.M. filed a due process

complaint against the DOE, seeking tuition reimbursement and

claiming procedural and substantive violations of the IDEA that

deprived E.H. of a free appropriate public education (“FAPE”)

for the 2012–2013 academic year.

Following a three

‐ day hearing, an impartial hearing

officer (“IHO”) denied A.M. that relief, and A.M. appealed that

decision to a state review officer (“SRO”), who affirmed.

Thereafter, A.M. brought suit in the United States District Court

for the Southern District of New York (Oetken, J. ), which

affirmed the order of the SRO. A.M. v. N.Y.C. Dep’t of Educ.

, No.

14

‐ CV

‐ 9224 (JPO), 2015 WL 8180751 (S.D.N.Y. Dec. 7, 2015).

A.M. appealed, contending principally that the IEP formulated

for E.H. violated the IDEA and deprived him of a FAPE. For the

reasons set forth below, we VACATE the District Court’s

judgment and REMAND for further proceedings.4 BACKGROUND

I. L EGAL F RAMEWORK

“The IDEA requires New York [S]tate to ‘provide

disabled children with a [FAPE].’” M.W. ex rel. S.W. v. N.Y.C.

Dep’t of Educ.

, 725 F.3d 131, 135 (2d Cir. 2013) (quoting R.E. v.

N.Y.C. Dep’t of Educ.

, 694 F.3d 167, 174–75 (2d Cir. 2012)). In

accordance with the statute, the DOE, through a CSE, 1 “must

produce, in writing, an [IEP] that ‘describes the specially

designed instruction and services that will enable the child to

meet’ stated educational objectives and is reasonably calculated

to give educational benefits to the child.” Id. (quoting R.E.

, 694

F.3d at 175) (citing 20 U.S.C. § 1414(d)).

Where, as here, a parent believes that the program

developed for his or her child for the upcoming school year

would deprive the child of a FAPE, the parent may file a due

process complaint with the DOE seeking review of “any matter

relating to the identification, evaluation, or educational

placement of the child, or the provision of a [FAPE] to such

child.” 20 U.S.C. § 1415(b)(6)(A). The filing of a due process

complaint “triggers an administrative procedure by which the

board of education appoints an [IHO] who conducts a formal

hearing and fact

‐ finding. The decision of an IHO may be

appealed to [an SRO], and an SRO’s decision may be challenged

by filing a civil action in state or federal court.” M.O. v. N.Y.C.

1 “In New York, the state has assigned responsibility for developing

IEPs to local [CSEs]. CSEs are comprised of members appointed by the

local school district’s board of education, and must include the

student’s parent(s), a regular or special education teacher, a school

board representative, a parent representative, and others.” R.E.

, 694

F.3d at 175 (citation omitted) (citing N.Y. Educ. Law § 4402(1)(b)(1)(a)).5 Dep ʹ t of Educ.

, 793 F.3d 236, 239 (2d Cir. 2015) (per curiam)

(citations omitted) (quoting Hardison v. Bd. of Educ. of the Oneonta

City Sch. Dist.

, 773 F.3d 372, 376 (2d Cir. 2014)) (citing, inter alia

,

20 U.S.C. §§ 1415(g), (i)(2)(A); N.Y. Educ. Law §§ 4404(1)–(3)).

II. S TATEMENT OF F ACTS

A. The Student

‐ E.H.

In May 2012, at the time the CSE convened, E.H. was a

six

‐ year

‐ old boy diagnosed with autism. E.H. suffers from global

developmental delays, significantly impaired communication

and social functioning, and substantial language impairments.

He also exhibits physical stereotypy ( e.g.

, “[t]apping on surfaces

or part of the body”) and vocal stereotypy ( i.e.

, “palilalia,” which

is characterized by “[n]on contextual vocalizations or

vocalizations emitted in a high pitched tone”). Suppl. App.

873–74.

Before E.H. turned five years of age, he attended a private

preschool, where he was placed in a special education class with

a student

‐ teacher

‐ paraprofessional ratio of 6:1:1. Thereafter, once

E.H. transitioned to school age, he attended a public community

school, where he was placed in a 12:1:1 special education

classroom. In 2011, E.H. began attending Manhattan Children’s

Center (“MCC”), a private special education school, after A.M.

determined that the IEP produced by the DOE for the 2011–2012

school year denied E.H. a FAPE. At MCC, E.H. received

schooling in a classroom with six students and six teachers ( i.e.

, a

student

‐ teacher ratio of 1:1), and received, among other things,

applied behavioral analysis (“ABA”) therapy, “which is an

intensive one

‐ on

‐ one therapy that ‘involves breaking down

activities into discrete tasks and rewarding a child’s

accomplishments.’” R.E.

, 694 F.3d at 176 (quoting Cty. Sch. Bd. v.

Z.P. ex rel. R.P.

, 399 F.3d 298, 301 (4th Cir. 2005)).6 In 2011, A.M. filed a due process complaint against the

DOE seeking tuition reimbursement for her unilateral placement

of E.H. at MCC and recovery of “make up sessions” of physical

therapy and instruction time missed during the summer of 2011,

for which no educational program was offered to E.H. Suppl.

App. 555. An IHO found in A.M.’s favor, concluding that it

“c[ould] discern no consistent effort in administering the

education of [E.H.],” thereby depriving E.H. of a FAPE. Suppl.

App. 559. In addition, the IHO determined that the special

education program at MCC in which A.M. unilaterally placed

E.H. was appropriately tailored to “me[e]t [E.H.’s] special

education needs,” Suppl. App. 560, and that A.M. was entitled to

the requested relief, including tuition reimbursement. That

decision was uncontested by the parties.

B. E.H.’s May 2012 Individualized Education

Program

In May 2012, a CSE team convened for its annual meeting

to develop an IEP for E.H. for the 2012–2013 academic year. The

CSE team was composed of the following members: (1) Nessan

O’Sullivan, the School District representative and a DOE school

psychologist; (2) Judy Sommers Schneid, a DOE special

education teacher; (3) E.H.’s mother, A.M.; (4) parent member

Marie Wise; (5) Samantha Solow, an assistant educational

coordinator at MCC; (6) Marisa Savard, one of E.H.’s lead

teachers at MCC; (7) Carrie Friedman, E.H.’s occupational

therapist at MCC; and (8) Amy Hunt, E.H.’s speech

‐ language

pathologist at MCC.

Prior to the CSE meeting, neither O’Sullivan nor Schneid

met with E.H., nor did the DOE conduct any evaluation of E.H.

on its own, aside from a psycho

‐ educational report from March

2010 conducted as part of a mandatory review some two years

before the CSE convened to formulate E.H.’s IEP for the 2012–7 2013 school year. Rather, the evaluative materials present at the

meeting were produced largely by MCC educators and medical

professionals who had evaluated or treated E.H. Based on the

recommendations of the DOE representatives, who relied on the

evaluative materials present at the CSE meeting prepared by

others, and over the objections of A.M. and MCC staff, the IEP

recommended a twelve

‐ month placement in a public special

education program with a student

‐ teacher

‐ paraprofessional ratio

of 6:1:1. Moreover, despite A.M.’s and MCC staff’s urging that

the DOE incorporate ABA therapy into the IEP, the IEP was

silent as to the use of any particular methodology for treating

A.M.’s educational needs. The IEP did, however, recommend

that A.M. receive a number of related services: (1) three weekly,

thirty

‐ minute sessions of individual speech

‐ language therapy;

(2) one weekly, thirty

‐ minute session of group speech

‐ language

therapy; (3) two weekly, thirty

‐ minute sessions of individual

physical therapy; (4) two weekly, thirty

‐ minute sessions of

individual occupational therapy; and (5) one weekly, thirty

‐

minute session of group occupational therapy. The IEP also

recommended that E.H. be equipped with a hand

‐ held tablet

computer with specialized software and “voice output in order

to increase his independence and social interactions and to serve

as a model for language.” Suppl. App. 867, 904.

Because the CSE team concluded that E.H.’s behaviors

seriously interfered with instruction, the IEP required the

development of a behavioral intervention plan (“BIP”), which

was incorporated into the IEP. The BIP, which “is generally used

to ‘develop[]

. . . strategies to deal with

. . . problem

behavior(s),’” L.O. v. N.Y.C. Dep’t of Educ.

, 822 F.3d 95, 104 (2d

Cir. 2016) (alterations in original) (quoting R.E.

, 694 F.3d at 190),

identified E.H.’s physical and vocal stereotypy and noted that it

sought to achieve a “[s]ignificant decrease in target behaviors”8 through “[t]ime sampling and partial interval recording,” Suppl.

App. 873. Although the BIP was based on a functional behavior

assessment (“FBA”), which was developed and incorporated

into the IEP, the DOE did not conduct an FBA of E.H. An FBA is

“an assessment designed to ‘identif[y]

. . . the problem behavior,

. . . defin[e]

. . . the behavior in concrete terms,

. . . identif[y]

. . . the contextual factors that contribute to the behavior (including

cognitive and affective factors) and

. . . formulat[e]

. . . a

hypothesis regarding the general conditions under which a

behavior usually occurs.’” L.O.

, 822 F.3d at 104 (alterations in

original) (quoting N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(r)).

In this case, the FBA was “based on

. . . the draft [FBA]

submitted by [MCC]” to the CSE. Suppl. App. 216. Further,

E.H.’s IEP did not provide for parental counseling or training

services, nor did it include any transitional support services for

E.H. to change schools and programs.

C. Administrative Review

Upon receipt of a final notice of recommended placement,

A.M. advised the DOE that she disagreed with E.H.’s

recommended placement and that E.H. would continue his

education at MCC for the 2012–2013 academic year. Thereafter,

A.M. filed a due process complaint, claiming that the DOE had

failed to provide E.H. with a FAPE for the 2012–2013 school

year, and she consequently sought private school tuition

reimbursement at MCC. As relevant here, A.M. alleged four

separate deficiencies in the IEP developed for E.H.: (1) the DOE

failed to conduct an FBA and failed to develop an appropriate

BIP; (2) the IEP failed to provide parent counseling and training

as a related service; (3) the IEP failed to offer transition services;

and (4) the IEP failed to provide a placement in a 1:1 classroom

that “implement[ed] an [ABA] or substantially similar

methodology.” Suppl. App. 571–73.9 1. Impartial Hearing Officer’s Decision

Following a three

‐ day hearing, 2 the IHO denied A.M.’s

reimbursement request. The IHO rejected A.M.’s contention that

the FBA and BIP developed for E.H. deprived him of a FAPE.

Although the FBA for E.H. that was contained in the IEP was

based entirely on the FBA prepared by MCC, the IHO

determined that this did not result in a FAPE deprivation

because “[t]he FBA prepared by the CSE t[ook] the information

from the FBA prepared by MCC and use[d] it appropriately.”

Suppl. App. 37. The IHO observed that the FBA appropriately

listed the target behaviors it sought to eradicate, identified their

root causes, and developed adequate strategies to address those

problem behaviors.

The IHO also concluded that, although no services were

included in E.H.’s IEP to assist with his transition from MCC to

the proposed public school placement, the DOE did not deprive

E.H. of a FAPE. The IHO relied on hearing testimony that E.H.

generally did not struggle with transitioning between

classrooms in the past, and also pointed to testimony from

O’Sullivan, that the DOE “felt that the services that we[re]

recommended would enable [E.H.] to make the transition from

where he presently was to a public school setting.” Suppl. App.

168.

2 A.M. testified and offered testimony from four members of MCC’s

staff: (1) assistant educational coordinator Solow; (2) speech

‐ language

pathologist Adina Haimes; (3) occupational therapist Friedman; and

(4) lead teacher Nicole Herz. The DOE offered testimony from

O’Sullivan, the DOE school psychologist who also served as the DOE

representative on the CSE that formulated the terms of E.H.’s IEP.10 The IHO additionally considered the IEP’s

recommendation of a 6:1:1 classroom and found it to be

appropriate. The IHO was “persuaded that

. . . O’Sullivan’s

observation that [E.H.] need[ed] the interaction with peers

would argue for a classroom setting where there [was] an

abundance of interaction, rather than primarily one to one

instruction.” Suppl. App. 36–37. The IHO also noted that E.H.’s

attention had “vastly improved” and that the child was “less in

need of that intervention,” and that, in any event, even if poor

attending skills persisted, this would not demand one

‐ to

‐ one

attention, as such skills could be adequately addressed in a 6:1:1

class. Suppl. App. 37.

Finally, the IHO rejected A.M.’s view that E.H. required

all

‐ day intensive ABA therapy. In rejecting this argument, the

IHO noted that “[t]here [was] no requirement that a particular

methodology be set forth on the IEP or provided to [a] [s]tudent,

or that the preference as to [the] methodology of any particular

evaluator

. . . or [p]arent[] be adopted.” Suppl. App. 36. It thus

concluded “that the methodology should be left to the discretion

of the professionals who w[ould] be working with [E.H.].”

Suppl. App. 35.

Although the IHO concluded that the IEP complied with

the IDEA, the IHO did not address A.M.’s contention that the

omission of parental training and counseling services in the IEP

deprived E.H. of a FAPE.

2. State Review Officer’s Decision

A.M. appealed the IHO’s decision to an SRO, who

affirmed. As to the lack of parent counseling and training

services in the IEP, the SRO faulted the IHO for “not addressing

[its] absence” in the IEP, but nonetheless determined that,

although the IEP should have provided for such services, its11 omission did not result in a FAPE deprivation. Suppl. App. 14

n.3. It based this conclusion on IHO hearing testimony that “‘it

was explained to the parent at the outset’ that parent counseling

and training was one of the ‘defining [features]’ of the

recommended [6:1:1] special class placement.” Suppl. App. 14

n.3 (quoting Suppl. App. 167–68). Further, the SRO reasoned that

“the presence or absence of parent training and counseling in an

IEP does not necessarily have a direct effect on the substantive

adequacy of the plan.” Suppl. App. 14 n.3 (citing R.E.

, 694 F.3d at

191).

Next, the SRO rejected A.M.’s claim that E.H. required a

1:1 classroom with ABA therapy in order to progress and was

denied a FAPE when he was assigned to a 6:1:1 classroom that

lacked an all

‐ inclusive ABA program. As to the adequacy of the

class size itself, the SRO credited O’Sullivan’s testimony that

“the [6:1:1] special class

. . . was an ‘intens[ive] behavioral

intervention,’” in that it was a rigorous full

‐ time program in a

small special education classroom that employed “a variety of

methodologies” to treat each student’s educational needs. Suppl.

App. 15 (quoting Suppl. App. 231). The SRO also found

persuasive O’Sullivan’s testimony that “he believed [E.H.] could

make meaningful progress had the May 2012 IEP been

implemented as written because [E.H.’s] special education

services needed to be delivered within some social context to

allow for modeling and shared instruction.” Suppl. App. 15–16.

Moreover, the SRO found A.M.’s methodology argument

equally unavailing because, in the SRO’s view, a CSE is

generally “not required to specify methodology on an IEP, and

the precise teaching methodology to be used by a student’s

teacher is usually a matter to be left to the teacher.” Suppl. App.

15. The SRO reasoned that, “although the May 2012 CSE did not

recommend ABA [therapy services], it also did not disapprove12 of the methodology or say ABA should not be used with the

student.” Suppl. App. 15. The SRO also observed that

O’Sullivan, “[t]he [DOE] school psychologist[,] indicated [that]

the May 2012 CSE recommendations incorporated behavioral

methodologies, and the [6:1:1] special class recommendation was

not contrary to ABA.” Suppl. App. 15. Thus, the SRO concluded

that the absence of ABA therapy in E.H.’s IEP did not deprive

the child of a FAPE.

The SRO did not, however, address A.M.’s challenge to

the adequacy of E.H.’s FBA and BIP or the lack of transitional

services contained in the IEP.

D. District Court Review

Thereafter, A.M. brought suit in the District Court,

claiming procedural and substantive violations under the IDEA,

resulting in the deprivation of a FAPE for E.H. The parties each

separately moved for summary judgment, and the District Court

granted the DOE’s motion, affirming the SRO’s decision and

denying A.M.’s claim for tuition reimbursement. A.M.

, 2015 WL

8180751, at *6.

As to the procedural adequacy of the IEP, the District

Court considered and denied A.M.’s challenge to the adequacy

of the FBA and BIP contained in the IEP, because the FBA and

BIP incorporated into the IEP were “[c]onsistent with the MCC

FBA/BIP,” and “adequately identifie[d] the problem behavior

and prescribe[d] ways to manage it.” Id. at *4 (quoting R.E.

, 694

F.3d at 190). The District Court rejected A.M.’s claim that,

because the CSE had inadequately reproduced the MCC draft on

which the IEP’s FBA and BIP were based, E.H. was deprived of a

FAPE. The District Court reasoned that, “so long as the [DOE’s]

own FBA/BIP is adequate, it does not matter that the [DOE’s]

draft omitted MCC’s charts, citations to academic support, or13 other information.” Id. The District Court thus concluded that

the FBA and BIP were suitable to E.H.’s needs. Id.

The District Court also concluded that the failure to

provide parent counseling and training in the IEP, although a

violation of New York law, was not fatal to the adequacy of the

IEP. The District Court observed that “it was explained to the

parent at the outset that one of the defining features of this

program was that it did have a parent training component to it

as well, as part of the program,” id. (quoting Suppl. App.

167–68), and thus A.M. was unable to demonstrate in what

manner either she or her son were injured as a result of the

omission of parental counseling and training services in the IEP.

In addition, the District Court rejected A.M.’s contention

that the lack of a formal transition plan for E.H. into his new

public school program deprived E.H. of a FAPE, because “A.M.

ha[d] ‘not identified any legal requirement that an IEP contain a

transition plan, nor ha[d] [A.M.] articulated why the absence of

such a plan was so significant as to deny [him]’ a [FAPE].” Id. at

*3 (third alteration in original) (quoting R.E.

, 694 F.3d at 195).

The District Court then turned to the IEP’s substantive

adequacy and rejected A.M.’s claim that E.H. required a 1:1

classroom that guaranteed ABA therapy all day, because “[t]hat

dispute is a debate over educational methodology, based on the

record before the SRO,” in which case “courts typically defer to

the decision of the SRO.” Id. at *5 (citing M.H. v. N.Y.C. Dep’t of

Educ.

, 685 F.3d 217, 244 (2d Cir. 2012)). The District Court noted

that this Court had held in R.E. that, “where ‘almost all of the

reports’ before an IHO find that a student needs ABA therapy,

and the remaining evidence emphasizes that the student needs

‘a high level of support,’ the [DOE] may not endorse a 6:1:1

classroom with ‘no guarantee of ABA therapy or any meaningful

1:1 support.’” Id. (quoting R.E.

, 694 F.3d at 193–94). The District14 Court distinguished E.H.’s case from R.E.

, however, because this

was not, in its view, “a case

. . . in which the [DOE] ignored the

‘clear consensus of [the student’s] evaluators.’” Id. (quoting R.E.

,

694 F.3d at 181). Rather, according to the District Court, although

“the SRO and IHO deviated from the consensus of the parent’s

evidence, including the representatives from MCC,” id.

, “their

conclusion was consistent with the views of the evaluator on the

CSE,” id.

, who believed that “a 6:1:1 setting would better

facilitate [E.H.’s] goals,” id.

, particularly “developing reciprocity,

developing an awareness of peers, and maneuvering himself

within the context of other children within a classroom setting,”

id. (quoting Suppl. App. 16). Thus, according to the District

Court, “the CSE may come to an independent conclusion of the

student’s needs from the content of the evaluation reports; the

CSE need not simply accept the conclusion of those reports

absent an in

‐ person evaluation with the student.” Id. (emphasis

in original).

As to the IEP’s silence on the provision of ABA therapy,

the District Court observed that, although “[t]he 6:1:1 setting did

not expressly include ABA,

. . . it also did not exclude ABA.” Id.

The District Court credited O’Sullivan’s IHO hearing testimony

that the DOE deliberately formulated the IEP in this manner

because it “‘didn’t want to tie the hands of the different

disciplines that would be working with’ E.H. by requiring a

specific methodology for part or all of the day.” Id. (quoting

Suppl. App. 168). The District Court also agreed with the IHO’s

determination that MCC might have preferred a different

methodology, but this preference “d[id] not have to guide the

decisions of the CSE.” Id. (quoting Suppl. App. 36).15 DISCUSSION

“We undergo a circumscribed de novo review of a district

court’s grant of summary judgment in the IDEA context because

the ‘responsibility for determining whether a challenged IEP will

provide a child with [a FAPE] rests in the first instance with

administrative hearing and review officers.’” M.W.

, 725 F.3d at

138 (alteration in original) (quoting M.H.

, 685 F.3d at 240). Our

review “requires a more critical appraisal of the agency

determination than clear

‐ error review

. . . but

. . . nevertheless[]

falls well short of complete de novo review.” M.H.

, 685 F.3d at 244

(alterations in original) (quoting Lenn v. Portland Sch. Comm.

, 998

F.2d 1083, 1086–87 (1st Cir. 1993)). “Accordingly, our de novo

review only seeks to independently verify that the

administrative record supports the district court’s determination

that a student’s IEP was adequate.” M.W.

, 725 F.3d at 138. This

verification requires that we “engage in an independent review

of the administrative record and make a determination based on

a ‘preponderance of the evidence.’” Gagliardo v. Arlington Cent.

Sch. Dist.

, 489 F.3d 105, 112 (2d Cir. 2007) (quoting Mrs. B. v.

Milford Bd. of Educ.

, 103 F.3d 1114, 1120 (2d Cir. 1997)).

Importantly, our review of the administrative record is

“restrained by our lack of specialized knowledge and

educational expertise,” which demands that we “defer to the

administrative decision [particularly where] the state officer’s

review has been thorough and careful.” M.W.

, 725 F.3d at 138–39

(alteration in original) (internal quotation marks omitted)

(quoting R.E.

, 694 F.3d at 184). Indeed, the Supreme Court has

made clear that we are precluded from “substitut[ing] [our] own

notions of sound educational policy for those of the school

authorities which [we] review.” Bd. of Educ. of Hendrick Hudson

Cent. Sch. Dist. v. Rowley

, 458 U.S. 176, 206 (1982). “The level of

deference granted to the administrative decision, however, is not16 without limitation. To merit deference, ‘[t]he SRO’s or IHO’s

factual findings must be reasoned and supported by the

record.’” L.O.

, 822 F.3d at 109 (internal quotation marks omitted)

(quoting M.H.

, 685 F.3d at 241). Further, although “courts must

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

administrative determination,” should we “f[in]d the SRO’s

conclusions unpersuasive even after appropriate deference is

paid, [we may] consider the IHO’s analysis, which is also

informed by greater educational expertise than that of judges,

rather than

. . . rely exclusively on [our] own less informed

educational judgment.” M.H.

, 685 F.3d at 246.

I. I SSUES FOR J UDICIAL R EVIEW

In order to determine whether parents of a disabled child

are entitled to reimbursement of expenses incurred at a private

school in an IDEA challenge to a state

‐ proposed IEP, we are

guided by the three

‐ step Burlington / Carter test: “(1) the DOE

must establish that the student’s IEP actually provided a FAPE;

should the DOE fail to meet that burden, the parents are entitled

to reimbursement if (2) they establish that their unilateral

placement was appropriate and (3) the equities favor them.”

M.W.

, 725 F.3d at 135 (footnote omitted); see also Florence Cty. Sch.

Dist. Four v. Carter

, 510 U.S. 7 (1993); Sch. Comm. of Town of

Burlington v. Dep’t of Educ.

, 471 U.S. 359 (1985). Here, the parties’

dispute focuses entirely on the adequacy of E.H.’s May 2012 IEP.

In reviewing the adequacy of the IEP, we “make a two

‐ part

inquiry that is, first, procedural, and second, substantive,” to

determine whether an IEP complies with the IDEA, R.E.

, 694

F.3d at 189–90, the burden of proof resting with the DOE, see

N.Y. Educ. Law § 4404(1)(c).17 A. Procedural Compliance

At step one, we “examine whether there were procedural

violations of the IDEA, namely, ‘whether the state has complied

with the procedures set forth in the IDEA.’” R.E.

, 694 F.3d at 190

(quoting Cerra v. Pawling Cent. Sch. Dist.

, 427 F.3d 186, 192 (2d

Cir. 2005)). “The initial procedural inquiry is no mere formality,”

Walczak v. Fla. Union Free Sch. Dist.

, 142 F.3d 119, 129 (2d Cir.

1998), as “[i]t acts as ‘a safeguard against arbitrary or erroneous

decisionmaking,’” M.H.

, 685 F.3d at 245 (internal quotation

marks omitted) (quoting Evans v. Bd. of Educ. of Rhinebeck Cent.

Sch. Dist.

, 930 F. Supp. 83, 93 (S.D.N.Y. 1996) (B.D. Parker, J.)). A

procedural violation will entitle a parent to tuition

reimbursement “if [it] ‘impeded the child ʹ s right to a [FAPE],’

‘significantly impeded the parents’ opportunity to participate in

the decisionmaking process,’ or ‘caused a deprivation of

educational benefits.’” R.E.

, 694 F.3d at 190 (quoting 20 U.S.C.

§ 1415(f)(3)(E)(ii); A.C. ex rel. M.C. v. Bd. of Educ. of the Chappaqua

Cent. Sch. Dist.

, 553 F.3d 165, 172 (2d Cir. 2009)). “That is, parents

must articulate how a procedural violation resulted in the IEP’s

substantive inadequacy or affected the decision

‐ making

process.” M.W.

, 725 F.3d at 139. “[M]ultiple procedural

violations[,] [however,] may cumulatively result in the denial of

a FAPE even if the violations considered individually do not.”

L.O.

, 822 F.3d at 109 (alterations in original) (quoting M.W.

, 725

F.3d at 139).

Here, A.M. alleges three procedural errors in the

formulation of E.H.’s IEP, which, in her view, independently and

cumulatively deprived E.H. of a FAPE.18 1. Functional Behavior Assessment and

Behavioral Intervention Plan

New York regulations require the DOE to conduct an FBA

“for a student whose behavior impedes his or her learning or

that of others.” N.Y. Comp. Codes R. & Regs. tit. 8,

§ 200.4(b)(1)(v). An FBA must include “the identification of the

problem behavior, the definition of the behavior in concrete

terms, the identification of the contextual factors that contribute

to the behavior[,]

. . . and the formulation of a hypothesis

regarding the general conditions under which a behavior usually

occurs and probable consequences that serve to maintain it.” Id.

§ 200.1(r). Its purpose “is to ensure that the IEP’s drafters have

sufficient information about the student’s behaviors to craft a

plan that will appropriately address those behaviors.” R.E.

, 694

F.3d at 190.

In addition, “where, as here, ‘a student’s behavior

impedes his learning, a BIP must be developed with strategies to

deal with the problem behavior(s).’” L.O.

, 822 F.3d at 111

(quoting R.E.

, 694 F.3d at 190) (citing N.Y. Comp. Codes R. &

Regs. tit. 8, § 200.22(b)). New York regulation requires that a BIP

be “based on the results of a[n] [FBA] and, at a minimum,

include[] a description of the problem behavior, global and

specific hypotheses as to why the problem behavior occurs and

intervention strategies that include positive behavioral supports

and services to address the behavior.” N.Y. Comp. Codes R. &

Regs. tit. 8, § 200.1(mmm).

Where the DOE fails to conduct an FBA of its own, we

“must take particular care to ensure that the IEP adequately

addresses the child’s problem behaviors,” R.E.

, 694 F.3d at 190,

but the IEP will be rendered legally deficient only where it fails

to “adequately identif[y] a student’s behavioral impediments

and [fails to] implement[] strategies to address that behavior,”19 M.W.

, 725 F.3d at 140. Where the IEP is found to be deficient in

this regard, we have held this to rise to the level of “a serious

procedural violation because it may prevent the CSE from

obtaining necessary information about the student’s behaviors,

leading to their being addressed in the IEP inadequately or not

at all.” R.E.

, 694 F.3d at 190. “[S]uch a failure seriously impairs

substantive review of the IEP because courts cannot determine

exactly what information an FBA would have yielded and

whether that information would be consistent with the student’s

IEP.” Id.

Here, the IEP indicated that E.H.’s behavior seriously

interfered with his instruction and therefore required the

development of a BIP. As noted, a BIP must be based on the

results of an FBA. See N.Y. Comp. Codes R. & Regs. tit. 8,

§ 200.1(mmm). Rather than conduct his own evaluation of E.H.,

however, O’Sullivan, the School District representative and DOE

psychologist present at the May 2012 CSE meeting, relied on an

October 2011 FBA and BIP performed by MCC and submitted to

the DOE prior to the CSE meeting in order to develop E.H.’s

FBA and BIP for the IEP.

A.M. contends that the DOE’s failure to conduct an FBA

of its own and develop a BIP from its own assessment of E.H.

constitutes a serious procedural violation of the IDEA, which

resulted in a FAPE deprivation. She argues further that the BIP

and FBA incorporated into E.H.’s IEP lacked certain information

contained in the draft versions formulated by MCC. For

instance, according to A.M., the “BIP contains no intervention

strategies that include positive behavioral supports and services

to address the behavior,” and the FBA lacks any “information

about the use of functional communication training[,] intensive

tact instruction[,] and matched stimuli.” Pl.’s Br. 27 (internal

quotation marks omitted). Thus, for A.M., the FBA and BIP20 incorporated into E.H.’s IEP were inadequate and were thus not

reasonably calculated to afford E.H. an opportunity to obtain

educational benefits, resulting in a denial of a FAPE.

We note at the outset that A.M.’s argument is not without

some persuasive force. O’Sullivan described the FBA included in

the IEP as more of “a summary of [MCC’s] behavior assessment

with the consensus of the meeting at the time,” and stated that

“maybe 10–15 minutes” was spent by the CSE creating this

summary and developing the BIP at the meeting. Suppl. App.

220–21. Indeed, the barebones nature of the BIP and FBA

included in the IEP makes this apparent, particularly when

compared with the BIP and FBA produced by MCC. This, of

course, is not surprising, given that O’Sullivan never actually

met or evaluated E.H. until after the formulation of his IEP, a

violation of New York law. See N.Y. Comp. Codes R. & Regs. tit.

8, § 200.4(b)(1)(v) (“[A]n individual evaluation of the referred

student shall be initiated by a [CSE]

. . . [and] shall be completed

within 60 days of receipt of consent

. . . . [T]he initial evaluation

must include at least

. . . a[n] [FBA] for a student whose behavior

impedes his or her learning or that of others, as necessary to

ascertain the physical, mental, behavioral and emotional factors

which contribute to the suspected disabilities.”).

As to the BIP incorporated into E.H.’s IEP, we have no

difficulty in concluding that it is legally inadequate. Although it

was based on the results of MCC’s FBA and includes a

description of the problem behavior, it does not provide certain

“minimum requirements,” L.O.

, 822 F.3d at 123, such as “global

and specific hypotheses as to why the problem behavior occurs

and intervention strategies that include positive behavioral

supports and services to address the behavior,” N.Y. Comp.

Codes R. & Regs. tit. 8, § 200.1(mmm). Indeed, we recently

expressed concern in situations such as this where the IEP21 contains a BIP that fails to “attempt[] to identify the root causes

of

. . . behavior deficiencies,” because it deprives the CSE of the

ability to adequately “provide effective treatment for these

behaviors,” “thereby casting doubt on the adequacy of its

provisions for treating them.” L.O.

, 822 F.3d at 113, 123.

Although deficient, we have also stressed that the

inadequacy of an FBA or BIP will not necessarily “render an IEP

legally inadequate under the IDEA so long as the IEP adequately

identifies a student’s behavioral impediments and implements

strategies to address that behavior.” M.W.

, 725 F.3d at 140. Here,

the FBA, which was also incorporated into E.H.’s IEP, included

the required information that was lacking in the BIP. The FBA

hypothesizes that E.H.’s palilalia and physical stereotypy are

caused by “[l]ack of active engagement” and that E.H. reacts in

such a manner because of “[s]ensory stimulation,” “task

avoidance,” and “[a]ccess to preferred attention or toy.” Suppl.

App. 874. The FBA further lists several strategies previously

attempted, such as the use of “[r]edirection and refocus,”

“[r]eplac[ing] verbal stereotyp[y] with communication skills,”

and “[e]xpand[ing] [E.H.’s] repertoire of reinforcer and play

skills,” and suggests continuing the use of such strategies

moving forward. Suppl. App. 874. In addition, the FBA lists

positive behavioral techniques that have proven to be successful

in the past, including providing E.H. with “[a]ccess to certain

toys[,] action figures[,] computer, dinosaur related toys and

activities.” Suppl. App. 874. Last, the FBA also identifies the end

goal, seeking to “decrease [E.H.’s] verbal and motor

stereotyp[y],” and notes that it would measure E.H’s progress

and the success of these strategies through “[p]artial interval

recording” and “time sampling.” Suppl. App. 874. These

descriptions “adequately identif[y] the problem behavior[s] and22 prescribe[] ways to manage [them],” in accordance with New

York law. R.E.

, 694 F.3d at 190.

Although there are undeniable differences between the

FBA and BIP included in E.H.’s IEP and the far more detailed

and thorough FBA and BIP created by MCC, E.H.’s IEP

incorporated the overall material substance of the MCC FBA and

BIP, albeit in a more limited form. That the versions ultimately

prepared and incorporated into E.H.’s IEP were less

comprehensive than those developed by E.H.’s current private

school education provider does not mean that E.H. was deprived

of a FAPE. Indeed, aside from pointing to certain differences

between MCC’s and the DOE’s FBAs and BIPs (such as the lack

of any mention of E.H.’s history of crying, which has been

successfully treated, at times, through redirection and immediate

return to activity), A.M. does not describe how such omissions

rise to the level of a FAPE deprivation; that is, in what manner

E.H.’s ability to meaningfully progress would be delayed as a

result of the deficiencies identified in the IEP’s FBA and BIP.

Accordingly, although the BIP developed for E.H. is

deficient in a number of important respects, when viewed

together with the FBA, the IEP nonetheless “adequately

identifies [E.H.’s] behavioral impediments and implements

strategies to address th[ose] behavior[s].” M.W.

, 725 F.3d at 140.

Thus, E.H. was not deprived of a FAPE as a result of the FBA

and BIP that were included in his IEP.

2. Parental Counseling and Training

Next, A.M. contends that the DOE’s failure to provide for

parental counseling and training services in E.H.’s IEP

constituted a violation of the procedures of the IDEA, thereby

contributing to a FAPE denial. “For educational programs for

students with autism, New York requires that an IEP include a23 ‘[p]rovision

. . . for parent counseling and training

. . . for the

purpose of enabling parents to perform appropriate follow

‐ up

intervention activities at home.’” L.O.

, 822 F.3d at 122 (alterations

in original) (quoting N.Y. Comp. Codes R. & Regs. tit. 8,

§ 200.13(d)). The inclusion of such services in the IEP is intended

to “assist[] parents in understanding the special needs of their

child; provid[e] parents with information about child

development; and help[] parents to acquire the necessary skills

that will allow them to support the implementation of their

child’s [IEP].” N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(kk).

Although a violation of New York’s regulations, “[w]e have

repeatedly held

. . . that parental counseling and training

omissions are ‘less serious’ procedural violations ‘because the

presence or absence of a parent

‐ counseling provision does not

necessarily have a direct effect on the substantive adequacy of

the [IEP].’” L.O.

, 822 F.3d at 122 (second alteration in original)

(quoting M.W.

, 725 F.3d at 141). This is so “because school

districts are required

. . . to provide parent counseling,” and thus

“remain accountable for their failure to do so no matter the

contents of the IEP.” Id. (alteration in original) (quoting R.E.

, 694

F.3d at 191).

Here, the SRO found that the DOE erred by failing to

provide for parent counseling and training in the IEP, in

violation of New York law. It appears that this may not be an

anomaly. If the DOE’s failure to comply with § 200.13(d) in

formulating the terms of IEPs for students with autism has

become a common practice, such a development would be cause

for concern. See, e.g.

, L.O.

, 822 F.3d at 122; J.C. v. N.Y.C. Dep’t of

Educ.

, 643 F. App’x 31, 32 (2d Cir. 2016) (summary order); R.B. v.

N.Y.C. Dep’t of Educ.

, 603 F. App ʹ x 36, 39 (2d Cir. 2015) (summary

order); C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ.

, 746 F.3d 68, 79–80

(2d Cir. 2014); F.L. ex rel. F.L. v. N.Y.C. Dep’t of Educ.

, 553 F.24 App’x 2, 7 (2d Cir. 2014) (summary order); M.W.

, 725 F.3d at 142;

K.L. ex rel. M.L. v. N.Y.C. Dep’t of Educ.

, 530 F. App’x 81, 87 (2d

Cir. 2013) (summary order); P.K. ex rel. S.K. v. N.Y.C. Dep’t of

Educ., (Region 4)

, 526 F. App’x 135, 138 (2d Cir. 2013) (summary

order); R.E.

, 694 F.3d at 193, 195. The SRO nonetheless

concluded, in accordance with this Court’s caselaw, that this

omission did not result in a FAPE deprivation. See R.E.

, 694 F.3d

at 191, 192–93. Importantly, the SRO also observed that, at the

CSE meeting, “‘it was explained to the parent at the outset’ that

parent counseling and training was one of the ‘defining

[features]’ of the recommended [6:1:1] special class placement.”

Suppl. App. 14 n.3 (quoting Suppl. App. 167–68).

We defer to that analysis. While its absence from the IEP

constitutes a violation of the procedures of the IDEA, evidence

that E.H.’s program actually offered parental counseling and

training services and that A.M. was made aware of its presence

at the CSE meeting makes clear that the omission of parental

counseling and training in the IEP itself was nothing more than

an immaterial procedural violation. See L.O.

, 822 F.3d at 123.

3. Transitional Support Services

A.M. next argues that E.H. required support services to

assist in his transition from his private school classroom at MCC

to the less restrictive public school placement in his IEP. A.M.

contends that the inclusion of such transitional services in the

IEP was compelled by N.Y. Comp. Codes R. & Regs. tit. 8,

§ 200.13(a)(6). She maintains that, “[a]s a student with autism,

[E.H.’s] resistance to environmental change or change in daily

routines

. . . require[d] transitional support,” and that the DOE’s

“failure to address [his] transitional needs [was] likely to lead to

regression in his behaviors, and thus in his educational

performance.” Pl.’s Br. 25. Thus, in A.M.’s view, because the IEP

was devoid of transitional support services for E.H., as required25 by New York law, E.H. was deprived of a FAPE. The DOE, on

the other hand, insists that there is “no[]

. . . ‘legal requirement

that an IEP contain a transition plan,’” and even if there were,

“A.M. did not ‘articulate[] why the absence of such a plan was so

significant as to deny’ E.H. an appropriate education.” Def.’s Br.

42 (quoting R.E.

, 694 F.3d at 195).

Although we agree that the absence of a transition plan or

services to assist with E.H.’s transition between classrooms did

not deprive him of a FAPE, there is some confusion here that

bears further explanation. N.Y. Comp. Codes R. & Regs. tit. 8,

§ 200.13(a)(6), provides that,

[i]n those instances where a student [with autism]

has been placed in programs containing students

with other disabilities, or in a regular class

placement, a special education teacher with a

background in teaching students with autism shall

provide transitional support services in order to

assure that the student’s special education needs

are being met.

N.Y. Comp. Codes R. & Regs. tit. 8, § 200.13(a)(6). Although the

IHO made no such finding, 3 the District Court concluded that

there was “no[]

. . . legal requirement that an IEP contain a

transition plan.” A.M.

, 2015 WL 8180751, at *3 (quoting R.E.

, 694

F.3d at 195). While this might be true, the District Court

nonetheless failed to appreciate that there remained a violation

of § 200.13(a)(6). That is, although the IDEA does not require the

inclusion of a formal transition plan in an autistic student’s IEP

3 As noted, the SRO failed to address A.M.’s transition

‐ plan argument

in its decision.26 that describes services to assist with the child’s transition into a

public school classroom or less restrictive educational setting,

New York law imposes a separate requirement that, under such

conditions, the IEP describe support services to be provided to

the student’s public special education teacher in the classroom,

which were absent from E.H.’s IEP. See N.Y. Comp. Codes R. &

Regs. tit. 8, § 200.1(ddd) (“Transitional support services means

those temporary services

, specified in a student’s [IEP], provided to a

regular or special education teacher to aid in the provision of

appropriate services to a student with a disability transferring to

a regular program or to a program or service in a less restrictive

environment.” (emphases added)); id. § 200.6(c) (“ Transitional

support services prescribed in the [ IEP ] shall be provided for a teacher

upon the recommendation of the [CSE], and shall be specified in

the student’s IEP.” (emphasis added)).

Just as with an omission of parental training and

counseling services in the IEP, which concerns services that are

to be delivered to an individual other than the child itself, the

absence of such services that are expressly required by law to be

included in a child’s IEP constitutes a violation of the procedures

of the IDEA. Similarly, school districts are required by

§ 200.13(a)(6) to “provide transitional support services,” id.

§ 200.13(a)(6), to an autistic student’s special education teacher

“in order to assure that the student’s special education needs are

being met,” id.

, “no matter the contents of the IEP,” and they

thus “remain accountable for their failure to do so,” permitting a

parent of an aggrieved child to “file a complaint at any time if

they feel the[ir] [child is] not receiving this service.” R.E.

, 694

F.3d at 191 (citing N.Y. Comp. Codes R. & Regs. tit. 8,

§ 200.13(d)).

Importantly, these regulations contemplate that, where, as

here, “a student with a disability transfer[s] to a regular program27 or to a program or service in a less restrictive environment,” the

student’s new classroom teacher may require “temporary

services” to ensure that the student’s particular educational

needs are being adequately treated in the new learning

environment. N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(ddd).

This makes sense, as a classroom teacher may not necessarily be

equipped or trained at the outset to treat certain conditions or

behaviors that are unique to the new student joining his or her

classroom. However, as with the inclusion of any other

provision in the IEP, the ultimate beneficiary of its presence, or

the individual harmed by its absence, is the student, whose

likelihood to progress under the proposed program becomes

markedly less certain as terms and conditions imposed by law

are wanting from the IEP.

We note that this view is not in tension with our holding

in R.E.

, which held only that there was “no[]

. . . legal

requirement that an IEP contain a transition plan”; that is, that

there was nothing in the law that required a description in the

IEP of transitional support services to be provided directly to the

student. See R.E.

, 694 F.3d at 195. We do not purport to suggest

otherwise. Rather, we hold that New York law requires an IEP to

identify temporary transitional support services to be provided

to an autistic student’s new classroom teacher when that student

is transferring from a private school to a public school program

or to a less restrictive classroom setting. See N.Y. Comp. Codes R.

& Regs. tit. 8, § 200.13(a)(6); id. § 200.1(ddd); id. § 200.6(c).

Moreover, in R.E. we rejected an argument concerning the

absence of transitional support services for the student in the IEP

because the parents had failed to “articulate[] why the absence of

such [services in the IEP] was so significant as to deny [the child]

a FAPE.” R.E.

, 694 F.3d at 195. Here, like there, A.M. has

similarly failed to offer a persuasive reason why the absence of28 transitional services to be provided to E.H.’s public school

classroom teacher deprived E.H. of a FAPE. Indeed, the IHO

reached the same conclusion, based in part on hearing testimony

from Friedman, E.H.’s occupational therapist at MCC, who

stated that, although E.H. had initially “had a really hard time

with transitions

. . . going from the classroom to [occupational

therapy] or between different places,” he had “made really nice

gains in that where he transitions not only from the classroom to

[occupational therapy], but between preferred and non

‐ preferred activities without any behavioral overreactions.”

Suppl. App. 404. This evidence suggests that, because E.H. had

made significant progress in his ability to transition between

classroom settings without resulting in any notable problems,

the failure to specify transitional support services in the IEP for

E.H.’s teacher could not have deprived E.H. of a FAPE.

Accordingly, we hold that, although the absence of

transitional support services in the IEP for E.H.’s would

‐ be

public school classroom teacher was a procedural violation, it

did not deprive E.H. of a FAPE.

4. Cumulative Effect

Although “[w]e have previously held that ‘[m]ultiple

procedural violations may cumulatively result in the denial of a

FAPE even if the violations considered individually do not,’”

L.O.

, 822 F.3d at 123 (quoting R.E.

, 694 F.3d at 190), that is not the

case here. Having identified four procedural errors (the failure

on the part of the DOE to conduct an FBA of its own, the

development of an inadequate BIP, the failure to include formal

parent counseling and training services in the IEP, and the

omission of transitional support services in the IEP for E.H.’s

would

‐ be public school teacher), none of which affected the

substance of E.H.’s program, this is not the rare case where the

violations, when taken together, “impeded the child’s right to a29 [FAPE]

. . . or caused a deprivation of educational benefits.” R.E.

,

694 F.3d at 190 (internal quotation marks omitted). Accordingly,

no FAPE denial resulted cumulatively from the procedural

errors committed by the DOE in formulating E.H.’s IEP.

B. Substantive Adequacy

Unlike procedural violations, which ordinarily will not

result in a FAPE denial, “[s]ubstantive inadequacy automatically

entitles the parents to reimbursement.” R.E.

, 694 F.3d at 190. In

evaluating whether an IEP was substantively adequate, we

assess whether the IEP was “reasonably calculated to enable the

child to receive educational benefits.” Rowley

, 458 U.S. at 207.

“[A] school district fulfills its substantive obligations under the

IDEA if it provides an IEP that is ‘likely to produce progress, not

regression,’ and if the IEP affords the student with an

opportunity greater than mere ‘trivial advancement.’” Cerra

, 427

F.3d at 195 (quoting Walczak

, 142 F.3d at 130). Importantly, “[i]n

order to avoid ‘impermissibly meddling in state educational

methodology,’ [we] ‘must examine the record for any objective

evidence indicating whether the child is likely to make progress

or regress under the proposed plan.’” Id. (internal quotation

marks omitted) (quoting Walczak

, 142 F.3d at 130).

A.M.’s two substantive challenges are inextricably

intertwined. She argues that (1) the 6:1:1 classroom setting

offered in the IEP and (2) the failure to guarantee any 1:1 ABA

therapy in the IEP went against the consensus of the evaluative

materials present at the CSE meeting, and that the IEP

consequently deprived E.H. of a FAPE. According to A.M., the

record “demonstrates overwhelmingly that [E.H.]

. . . require[d]

[ABA]” and “a significant amount of one

‐ on

‐ one instruction” in

order to make progress toward his goals. Pl.’s Br. 15. We agree.30 While attending MCC during the 2011–2012 school year,

E.H. was educated in a 1:1 classroom setting with six students

and six teachers and received intensive 1:1 therapy using the

ABA methodology. The SRO reviewed the evaluative materials

present at the CSE meeting and the IHO hearing record, and

concluded, relying heavily on O’Sullivan’s testimony, that the

IEP was substantively adequate despite the absence of any

provision for 1:1 ABA therapy because, “although the May 2012

CSE did not recommend ABA, it also did not disapprove of the

methodology or say ABA should not be used with the student,”

and that the IEP “incorporated behavioral methodologies

. . . not

contrary to ABA.” Suppl. App. 15. The SRO was also persuaded

by O’Sullivan’s opinion that E.H. “could make meaningful

progress had the May 2012 IEP been implemented as written

because [E.H.’s] special education services needed to be

delivered within some social context to allow for modeling and

shared instruction,” which, in O’Sullivan’s view, counseled in

favor of a less restrictive placement than a 1:1 classroom setting.

Suppl. App. 15–16.

The District Court affirmed, concluding that, although

“the SRO and IHO deviated from the consensus of the parent’s

evidence, including the representatives from MCC,” “their

conclusion was consistent with the views of the evaluator on the

CSE,” who believed that “a 6:1:1 setting would better facilitate

[E.H.’s] goals.” A.M.

, 2015 WL 8180751, at *5. Thus, the District

Court explained that “the CSE may come to an independent

conclusion of the student’s needs from the content of the

evaluation reports; the CSE need not simply accept the

conclusion of those reports absent an in

‐ person evaluation with

the student.” Id. (emphasis in original).

Although the IDEA does not speak to methodology, see

Assistance to States for the Education of Children With Disabilities31 and Preschool Grants for Children With Disabilities

, 71 Fed. Reg.

46,540, 46,665 (Dep’t of Educ. Aug. 14, 2006), the implementing

regulations define a child’s “[s]pecial education” as “specially

designed instruction

. . . to meet the unique needs of a child with

a disability.” 34 C.F.R. § 300.39(a). Rowley teaches that the

substantive adequacy of a child’s IEP turns on whether its

provisions are “reasonably calculated to enable the child to

receive educational benefits.” 458 U.S. at 207. This inquiry

requires courts to determine whether “the content, methodology

,

or delivery of instruction” have been narrowly tailored to

“address the unique needs of the child that result from the

child’s disability.” 34 C.F.R. § 300.39(b)(3)(i) (emphases added).

To be sure, in evaluating the substantive adequacy of a

child’s IEP, Rowley directs us to “be careful to avoid imposing

[our] view of preferable educational methods upon the States.”

Rowley

, 458 U.S. at 207. Thus, “once a court determines that the

requirements of the [IDEA] have been met, questions of

methodology are for resolution by the States.” Id. at 208. As

noted, however, deference to the states “is not without

limitation.” L.O.

, 822 F.3d at 109. Our review of a case, such as

this, demands that we “engage in an independent review of the

administrative record and make a determination based on a

‘preponderance of the evidence.’” Gagliardo

, 489 F.3d at 112

(quoting Mrs. B.

, 103 F.3d at 1120).

Our decision regarding R.K., one of the three students

whose IDEA challenges we decided in R.E.

, exemplifies the

interplay of this complex set of directives. There, the SRO

disagreed with the IHO’s conclusion that “[t]here [was] a

consensus that the student need[ed] an ABA program.” R.E.

, 694

F.3d at 193. Instead, the SRO “concluded that the evidence only

indicated that R.K. needed a small, structured setting, which [it]

found to be satisfied by a 6:1:1 placement.” Id. The SRO “also32 found that [the child] did not necessarily need ABA because

some evaluations did not specify a teaching method,” and

credited testimony from R.K.’s would

‐ be teacher at the proposed

placement that she incorporated 1:1 ABA instruction into the

classroom. Id. The SRO determined that the placement was

appropriate because “the student would have received

individual instruction and that instruction would have been

ABA

‐ based.” Id. (internal quotation marks omitted).

We reversed and faulted the SRO’s reliance on the would

‐

be teacher’s testimony because “R.K.’s parents had no

knowledge or guarantee from the IEP that R.K. would have

received a teacher who conducted daily 1:1 ABA sessions with

each student.” Id. at 193–94. We went on to explain that the

SRO’s conclusion was unsupported by the evidence because

those reports that spoke to the size of the child’s classroom either

recommended 1:1 instruction or “emphasized that R.K. needed a

high level of support.” Id. at 194.

We further observed that, “almost all of the reports found

that R.K. needed continued ABA therapy,” and we explained

that “[t]he fact that some reports did not mention a specific

teaching methodology d[id] not negate the clear consensus that

R.K. required ABA support.” Id. Because “the plan proposed in

[R.K.’s] IEP offered her a 6:1:1 classroom with no dedicated aide

and no guarantee of ABA therapy or any meaningful 1:1

support,” we held that the SRO’s conclusion was unsupported

by a preponderance of the evidence and was thus “flawed,” that

“deference to it [was] not warranted,” and that R.K. was

deprived of a FAPE because “the IEP was not reasonably

calculated to create educational benefit for R.K.” Id.

Thus, R.E. stands for the unremarkable proposition that,

when the reports and evaluative materials present at the CSE

meeting yield a clear consensus, an IEP formulated for the child33 that fails to provide services consistent with that consensus is

not “reasonably calculated to enable the child to receive

educational benefits,” Rowley

, 458 U.S. at 207, and the state’s

determination to the contrary is thus entitled to no deference

because it is unsupported by a preponderance of the evidence.

See C.F.

, 746 F.3d at 81 (holding that the IEP’s failure to provide a

1:1 classroom resulted in the denial of a FAPE because “the

testimony and reports indicat[ed] that [the child’s] needs

required a 1:1 placement,” thereby rendering “such instruction

. . . a necessary component of any plan ‘reasonably calculated to

enable the child to receive educational benefits’” (quoting R.E.

,

694 F.3d at 190)). This remains true whether the issue relates to

the content, methodology, or delivery of instruction in a child’s

IEP.

Although we are mindful that the question of “how best

to educate an autistic child is ‘a difficult question of educational

policy’ that requires deference to the decisions of administrative

experts,” L.O.

, 822 F.3d at 117 (quoting T.P. ex rel S.P. v.

Mamaroneck Union Free Sch. Dist.

, 554 F.3d 247, 254 (2d Cir. 2009)

(per curiam)), where, as here, “it appears plain that, contrary to

the findings of the SRO,” the placement was “not adequately

designed to address and improve” the child’s educational needs,

the administrative officer’s analysis is deserving of no deference,

see id. Here, as in R.E.

, the reports that did address E.H.’s needs

as they related to teaching methodology and classroom size

specifically recommended the continued need for ABA therapy

and 1:1 support in order for E.H. to progress. For example, a

report prepared by the Rusk Institute of Rehabilitation Medicine

based on psychological evaluations it conducted of E.H. on

March 28, April 1, and May 19, 2011 (approximately one year

before the CSE meeting in question), recommended that,

“[r]egardless of the placement, it is imperative that [E.H.] receive34 the maximum ABA instruction to allow for carryover and family

training in order to make appropriate progress and meet IEP

goals.” Suppl. App. 689. The report also recommended that,

“[w]ith regard to behavioral management in general,”

“[i]ntensive behavioral intervention such as Lovaas’ [ABA]

. . . techniques may be particularly useful and will provide a means

of increasing communication, attention, and imitation skills, and

decreasing his rigidity.” Suppl. App. 690. It further explained

that E.H.’s “appropriate behaviors and learning c[ould] be

fostered through the development of imitation skills,” and that

“ABA is able to focus on the development of these skills.” Suppl.

App. 690.

Consistent with this report, following a pediatric

neurology evaluation of E.H., neurologist Jay E. Selman, M.D.

recommended in September 2011 that E.H. be educated using

“ABA at least 20 hours per week.” Suppl. App. 749. Earlier that

spring, neurologist Ram Kairam, M.D. evaluated E.H. and

opined that E.H. “would need ABA therapy at least forty hours a

week to see an improvement.” Suppl. App. 752. Dr. Kairam

noted that when he evaluated E.H. in January 2011, A.M. “was

not totally convinced that [E.H.] should be in a full time ABA

program as it m[ight] be too restrictive for [E.H.] and wanted to

leave [E.H.] in a [g]eneral education school with special

education services,” but he “stress[ed to her] the importance of

ABA therapy for an autistic child.” Suppl. App. 751.

The hearing record reinforces these doctors’

recommendations. MCC assistant educational coordinator Solow

testified that E.H. received primarily one

‐ on

‐ one instruction at

MCC because he “ha[d] a hard time learning in a group of

children.” Suppl. App. 313. She attributed this difficulty to E.H.’s

“very poor attending skills.” Suppl. App. 313. She explained that

one

‐ on

‐ one learning “allow[ed] for more frequent reinforcement,35 which [E.H.] need[ed].” Suppl. App. 313. In addition, she

testified that E.H.’s educators at MCC “believed that [E.H.]

needed a program with a one

‐ to

‐ one setting, a one

‐ to

‐ one

classroom, a classroom that uses [ABA], since [they] had seen

that that ha[d] been very effective with him.” Suppl. App. 326.

She also testified that she told O’Sullivan at the CSE meeting that

E.H.’s “needs couldn’t be met in a 6

‐ 1

‐ 1” classroom setting.

Suppl. App. 328.

E.H.’s lead classroom teacher at MCC, Herz, echoed

Solow’s testimony. Herz stated that E.H. “require[d] ABA to

make progress” and that “he need[ed] the consistent one

‐ to

‐ one

support and

. . . the consistent expectations and constant positive

reinforcement

. . . for any and all behaviors.” Suppl. App. 436.

Herz explained that a 1:1 classroom was necessary for E.H.

“because his attention [was] so fleeting that it can become easy

for him to become prompt dependent, so he needs a systematic

fading of prompting.” Suppl. App. 436–37. In other words, in

Herz’s view, E.H. “continue[d] to need one

‐ to

‐ one support to

attend consistently to groups” and “he also need[ed] the

behavioral component with the research based tactics to target

his palilalia and physical stereotypy.” Suppl. App. 437.

Importantly, there were no evaluative materials present at

the CSE meeting that suggested otherwise, such as that E.H.

could benefit from the use of some other methodology rather

than 1:1 ABA, or that ABA therapy need not play a crucial role in

E.H.’s educational program in order for him to continue to

progress. 4 Nor did the DOE conduct any evaluation(s) of its own

4 A.M.’s hearing testimony before the IHO that E.H. attended a karate

class once each week with other developing children, that he “did not

have many of the symptoms of an autistic child,” was “very smart and

knows a lot,” and that “it’s just his attention span is what we need to36 address in order for him to learn” because “he learned his letters; he

learned his numbers; he learned his colors,” Suppl. App. 39, does not

alter this conclusion. That is, this testimony, although of course highly

relevant coming from the mother of the child, did not obviate the clear

consensus of E.H.’s evaluators (and their evaluations) that E.H.

required meaningful 1:1 classroom support and ABA therapy in order

to progress.

Further, the IHO’s conclusion, that because E.H. had made

improvements while at MCC, he no longer required such a restrictive

class setting, is unsupported by the record. First, the quoted language

on which the IHO relies is taken out of context. While Solow did

testify that E.H. had “really improved” his attending behavior, Solow

also testified that E.H. still “ha[d] a hard time learning in a group of

children,” that he still had “very poor attending skills,” that E.H.

“needed a program with a one

‐ to

‐ one setting, a one

‐ to

‐ one classroom,

a classroom that uses [ABA], since [they] had seen that that ha[d] been

very effective with him,” and that E.H.’s “needs couldn’t be met in a 6

‐

1

‐ 1” classroom setting. Suppl. App. 313, 319, 326, 328.

Indeed, as Solow testified, the logical inference from the testimony that

E.H. had “made huge gains” and “increased [his] social awareness”

after a single year of learning at MCC would suggest that the more

restrictive academic setting in which he was learning adequately

addressed his needs and should thus be continued; not that the

program should be discontinued and that he should be transitioned to

a less restrictive learning environment that did not necessarily employ

ABA therapy techniques—the very kind in which he was previously

educated before attending MCC and in which he did not enjoy similar

progress or success. Suppl. App. 319, 557. Notably, E.H.’s MCC

educators, even despite his improvements, continued to recommend

for the 2012–2013 academic year that he “continue in his current

placement within a small ABA classroom where he c[ould] receive

one

‐ to

‐ one instruction throughout the day in order to maintain and

generalize skills.” Suppl. App. 654, 800.37 of E.H. to call into question the opinions and recommendations

contained in the evaluative materials. While a private school’s

preferred methodology does not bind the CSE in formulating a

student’s IEP, where, as here, the consensus of the evaluative

materials and “all witnesses familiar with [the child],” C.F.

, 746

F.3d at 81, specifically recommend the continued need for 1:1

ABA therapy and support for the child to progress, and the DOE

does not point to any evidence sufficient to counter these

opinions and recommendations, the CSE was bound, at a

minimum, to require some level of ABA support in a 1:1

classroom setting in order to establish the adequacy of the IEP.

See id. (“The IEP’s substantive inadequacy, therefore, is rooted in

the testimony and reports indicating that [the child’s] behavioral

needs required a 1:1 placement.”); see also R.E.

, 694 F.3d at 194.

Thus, the District Court and administrative officers’

reliance on the views of O’Sullivan, which were against the clear

consensus of the substance of the evaluative materials present at

the CSE meeting and the views of E.H.’s evaluators and

educational instructors ( i.e.

, “all witnesses familiar with [E.H.],”

C.F.

, 746 F.3d at 81), was error, as this resulted in a proposed

program that was not “reasonably calculated to enable [E.H.] to

receive educational benefits,” see Rowley

, 458 U.S. at 207. This

conclusion is inescapable, “particularly when combined with

[(1)] the [DOE’s] failure to [conduct] an adequate, individualized

[FBA],” (2) the DOE’s failure to prepare an adequate BIP, (3) “the

lack of any provision for parent counseling and training,” and

(4) the omission of transitional support services in the IEP for

E.H.’s would

‐ be public school teacher at the IEP’s proposed

placement. C.F.

, 746 F.3d at 81. Moreover, we note that “the issue

of classroom placement ratio cannot be separated from one of

the procedural violations discussed above, namely the [DOE’s]

failure to [evaluate E.H. and] conduct an appropriate [FBA of its38 own] or [BIP].” Id. Indeed, we are left to wonder whether the

DOE would have reached the same conclusions and

recommended the same deficient services in the IEP that E.H.’s

evaluators and instructors believed to be inadequate, had the

DOE adequately complied with the IDEA’s procedures in the

first instance. See L.O.

, 822 F.3d at 113; R.E.

, 694 F.3d at 190.

Accordingly, we conclude that these significant

deficiencies rendered E.H.’s IEP for the 2012–2013 school year

substantively inadequate, thereby depriving E.H. of a FAPE.

C. Relief

A “substantive violation alone does not entitle [A.M.] to

reimbursement for [E.H.’s] education at [MCC]. [A.M.] must still

satisfy the second and third parts of the Burlington / Carter test, by

showing that [her] alternative placement for [E.H.] at [MCC] was

appropriate and that equitable considerations favor

reimbursement.” T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist.

, 752

F.3d 145, 167 (2d Cir. 2014). Because the District Court

erroneously concluded that there was no substantive deficiency

in E.H.’s IEP and thus that E.H. was not deprived of a FAPE, the

District Court did not address these remaining issues.

Accordingly, rather than evaluate these questions ourselves

without the benefit of a more fully developed record and

briefing on these issues by either party, we believe the preferred

course is to remand to the District Court to consider these

matters in the first instance. See id. at 170.

CONCLUSION

We have reviewed the parties’ remaining arguments and

find them to be without merit. For the foregoing reasons, the

judgment of the District Court is VACATED and the case is

REMANDED for further proceedings consistent with this

opinion.