     14-1386
     E.H. v. New York City Department of Education


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3   8th day of May, two thousand fifteen.
 4
 5   PRESENT:
 6
 7           RALPH K. WINTER,
 8           DEBRA ANN LIVINGSTON,
 9           DENNY CHIN,
10
11                           Circuit Judges.
12   ______________________________________________
13
14   E.H., individually and on behalf of M.K., a minor,
15
16                                    Plaintiff-Appellant,
17
18                   -v.-                                                 No. 14-1386
19
20   NEW YORK CITY DEPARTMENT OF EDUCATION,
21
22                           Defendant-Appellee.
23   __________________________________________
24
25   FOR PLAINTIFF-APPELLANT:                  LAWRENCE D. WEINBERG, Esq., Bloomfield, NJ.
26
27   FOR DEFENDANTS-APPELLEES:                 TAHIRIH M. SADRIEH, Richard Dearing, for Zachary W.
28                                             Carter, Corporation Counsel of the City of New York, New
29                                             York, NY.

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 1          UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court is VACATED and REMANDED.

 3          Plaintiff-Appellant E.H. is the mother of M.K., a ten year-old child who has been diagnosed

 4   with autism. During the 2010-11 school year, M.K. attended the Rebecca School – a private school

 5   for children with neurodevelopmental disorders, including autism, which uses a teaching

 6   methodology known as the “DIR/Floortime” method.             Defendant-Appellee New York City

 7   Department of Education (“DOE”) reimbursed E.H. for M.K.’s tuition after an independent hearing

 8   officer (“IHO”) determined that the DOE failed to offer M.K. a free appropriate public education

 9   (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §

10   1400 et seq. On February 14, 2011, the DOE convened a Committee on Special Education to

11   develop an Individualized Education Program (“IEP”) and Behavioral Intervention Plan for M.K.’s

12   2011-12 school year. The resulting IEP placed M.K. in a specialized classroom within a school

13   offering year-round services, assigned him a dedicated crisis-management paraprofessional and

14   weekly meetings with therapists, and set academic, social, physical and behavioral goals. Many of

15   the goals came directly from a report created by the Rebecca School.

16          On June 27, 2011, E.H. filed a due process complaint, arguing that the IEP failed to provide

17   M.K. a FAPE, and expressing her intention to re-enroll M.K. at the Rebecca School and to seek

18   tuition reimbursement under the IDEA. After a three-day hearing, the IHO agreed that M.K. had

19   been denied a FAPE and ordered the DOE to fund M.K.’s tuition. The DOE appealed to a state

20   review officer (“SRO”) who, on July 25, 2012, reversed the IHO after concluding that the IEP was

21   “sufficient to address the student’s demonstrated needs and [was] designed to enable him to make

22   progress.” J.A. 24. E.H. then filed suit in the United States District Court for the Southern District


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 1   of New York (Daniels J.), seeking reversal of the SRO’s decision. The parties cross-moved for

 2   summary judgment and, on March 21, 2014, the district court affirmed. This appeal followed. We

 3   assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the

 4   issues on appeal.

 5                                                  * * *

 6          Under the IDEA, school districts must provide “all children with disabilities a free

 7   appropriate public education,” which consists of “special education and related services tailored to

 8   meet the unique needs of a particular child, and . . . reasonably calculated to enable the child to

 9   receive educational benefits.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir.

10   2007) (internal quotation marks omitted). Parents who believe the district has failed to offer a FAPE

11   may enroll their child in a private school and seek tuition reimbursement, which “will be granted

12   only if (1) the proposed IEP failed to provide the student with an appropriate public education;

13   (2) the parent’s private placement was appropriate to the child’s needs; and (3) equitable

14   considerations support the parent’s claim.” Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist.,

15   773 F.3d 372, 376 (2d Cir. 2014). Parents seeking reimbursement must bring their claim to state

16   administrators – in New York, an IHO and SRO – before filing in federal court. 20 U.S.C. §

17   1415(i).

18          We review a district court’s grant of summary judgment in an IDEA case de novo. R.E. v.

19   N.Y.C. Dep’t of Educ., 694 F.3d 167, 184 (2d Cir. 2012). But although we “engage in an

20   independent review of the administrative record,” we must give “due weight” to the state

21   administrative decisions, “mindful that the judiciary generally lacks the specialized knowledge and

22   experience necessary to resolve persistent and difficult questions of educational policy.” M.H. v.


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 1   N.Y.C. Dep’t of Educ., 685 F.3d 217, 240 (2d Cir. 2012) (internal quotation marks omitted). This

 2   often means deferring to the “final decision of the state authorities, even where the reviewing

 3   authority disagrees with the hearing officer.”        Id. at 241.   Only if the SRO’s decision is

 4   “insufficiently reasoned to merit . . . deference,” may we disregard it in favor of the IHO’s decision.

 5   Id. at 246.

 6           E.H. first argues that the DOE committed both procedural and substantive errors in crafting

 7   M.K.’s Behavioral Intervention Plan because it failed to conduct a functional behavioral assessment

 8   and mischaracterized several of M.K.’s behaviors. We disagree. To begin with, under the IDEA

 9   “[t]he party requesting [a] due process hearing shall not be allowed to raise issues at the due process

10   hearing that were not raised [in the due process complaint], unless the other party agrees otherwise.”

11   20 U.S.C. § 1415(f)(3)(B). Although we do not apply this rule “mechanically,” C.F. ex rel. R.F. v.

12   N.Y.C. Dep’t of Educ., 746 F.3d 68, 78 (2d Cir. 2014), E.H.’s due process complaint did not so much

13   as mention the Behavioral Intervention Plan, let alone identify these shortcomings. See T.M. ex rel.

14   A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170 (2d Cir. 2014). The SRO was therefore correct

15   to find these arguments forfeited.

16           Moreover, the district court correctly decided that the DOE’s Behavioral Intervention Plan

17   was neither procedurally nor substantively inadequate. In New York, school districts must conduct

18   a “full [functional behavioral assessment] for a student who exhibits behavior that impedes

19   learning,” and “develop a [Behavioral Intervention Plan] to address that behavior.” Id. at 169. The

20   “failure to conduct an adequate [assessment] is a serious procedural violation,” but “does not rise

21   to the level of a denial of a FAPE if the IEP adequately identifies the problem behavior and

22   prescribes ways to manage it.” Id. (internal quotation marks omitted). Here, the DOE evaluated


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 1   M.K.’s psychological reports and his progress at the Rebecca School, spoke to M.K.’s teacher, and

 2   asked E.H. for input.      Because this process “adequately identifie[d]” M.K.’s “behavioral

 3   impediments” and created “strategies to address that behavior,” the DOE’s failure to conduct a

 4   formal assessment did not deny M.K. a FAPE. M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d

 5   131, 140 (2d Cir. 2013); see also A.C. ex rel. M.C. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist.,

 6   553 F.3d 165, 172 (2d Cir. 2009). The resulting Behavioral Intervention Plan also accurately

 7   characterized M.K.’s behavior, most notably his spitting and biting. It was not until after the IEP

 8   was created that M.K.’s teachers noticed changes in those behaviors, and neither E.H. nor M.K.’s

 9   teachers apprised the DOE of the changes. We therefore agree with the district court’s conclusion

10   that the Behavioral Intervention Plan was adequate.

11          E.H. next argues that the DOE failed to provide a FAPE because the classroom to which it

12   assigned M.K. already had six students enrolled and therefore lacked space for him. However, when

13   a plaintiff challenges the adequacy of an IEP, “[o]ur evaluation must focus on the written plan

14   offered to the parents,” and “[s]peculation that the school district will not adequately adhere to the

15   IEP is not an appropriate basis for unilateral placement.” R.E., 694 F.3d at 195. Furthermore, as

16   the SRO decided, the testimony on which E.H. relies does not establish that the DOE’s selected

17   classroom lacked space for M.K. The DOE’s witness testified that, when the school year began in

18   July 2011, the class had six students. But E.H. rejected the DOE’s placement in June 2011, before

19   the beginning of the school year. The DOE’s witness testified that, at that time, the district

20   anticipated that a spot in the classroom would be open for M.K. The DOE had no obligation to keep

21   that spot available after E.H. rejected its IEP.

22          Finally, E.H. contends that the IEP is inadequate because it adopts goals that the Rebecca


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 1   School created for M.K., but does not require that the Rebecca School’s “DIR/Floortime” teaching

 2   methodology be used to implement those goals. We have held that, because of their specialized

 3   knowledge and experience, state administrators are generally superior to federal courts at resolving

 4   “dispute[s] over an appropriate educational methodology.” M.H., 685 F.3d at 244. That deference

 5   is warranted, however, only if the state administrators weigh the evidence about proper teaching

 6   methodologies and explain their conclusions. See id. at 252; R.E., 694 F.3d at 194.

 7          In this case, neither state administrator applied its expertise to determine whether the

 8   “DIR/Floortime” methodology is necessary to implement the goals in the IEP. The IHO noted that

 9   the IEP adopts the Rebecca School’s goals without requiring the use of the “DIR/Floortime” method,

10   but did not assess whether the IEP is “likely to produce progress” toward M.K.’s goals even without

11   that teaching methodology. M.H., 685 F.3d at 224. On appeal, the SRO also failed to evaluate

12   whether M.K. could progress without “DIR/Floortime.” Instead, it concluded that the IHO should

13   not have addressed the methodological issue because E.H. failed to raise the matter in the due

14   process complaint. J.A. 15-16 n.7. But that decision was incorrect – E.H.’s due process complaint

15   contained at least three objections to the IEP’s failure to adopt the “DIR/Floortime” methodology.

16    And contrary to the district court’s decision, the SRO’s general conclusion that the IEP was

17   “sufficient to address the student’s demonstrated needs,” J.A. 24, is no replacement for a direct

18   evaluation of the evidence on teaching methodology. As we explained in M.H., a “failure to

19   consider any of the evidence regarding . . . methodology . . . is precisely the type of determination

20   to which courts need not defer.” 685 F.3d at 252.

21          Although we “appreciate the[] desire to resolve this case now without further litigation, . .

22   . [i]t would be imprudent for this panel, without any educational expertise,” to evaluate if the


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 1   “DIR/Floortime” methodology is necessary to implement the goals in the IEP. E.M. v. N.Y.C. Dep’t

 2   of Educ., 758 F.3d 442, 463 (2d Cir. 2014). The SRO failed to address the issue not because the

 3   record lacked evidence from which it could decide whether the IEP is appropriate, but because it

 4   committed a legal error. We therefore vacate the district court’s decision and remand so that the

 5   district court can direct the SRO to determine, in the first instance, whether the DOE denied M.K.

 6   a FAPE by adopting the Rebecca School’s goals without also adopting the “DIR/Floortime”

 7   methodology. Cf. M.T. ex rel. N.M. v. N.Y.C. Dep’t of Educ., 47 F. Supp. 3d 197, 208 (S.D.N.Y.

 8   2014); Y.S. v. N.Y.C. Dep’t of Educ., 2013 WL 5722793, No. 12-civ-2590 (WHP), at *7 (S.D.N.Y.

 9   Sept. 24, 2013). If the SRO concludes that the DOE denied M.K. a FAPE, either the SRO or district

10   court must also address whether the Rebecca School is an appropriate alternative placement and

11   whether equitable considerations favor reimbursement. See Hardison, 773 F.3d at 376.

12          For the foregoing reasons, the judgment of the district court is VACATED and

13   REMANDED.

14
15                                                       FOR THE COURT:
16                                                       Catherine O’Hagan Wolfe, Clerk
17




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