     11-1266, 11-1474, 11-655
     R.E., M.E., et al v. NYC Dep’t of Education
 1

 2                         UNITED STATES COURT OF APPEALS

 3                               FOR THE SECOND CIRCUIT

 4

 5                                  August Term 2011

 6        (Argued: April 24, 2012                  Decided: September 20, 2012)

 7                Docket Nos. 11-1266-cv, 11-1474-cv, 11-655-cv

 8   -----------------------------------------------------x
 9
10   R.E., Individually, on behalf of J.E., M.E,
11   Individually, on behalf of J.E.,
12
13                Plaintiffs-Appellees,
14
15                             -- v. --
16
17   New York City Department of Education,
18
19                Defendant-Appellant.
20
21   -----------------------------------------------------x
22
23   R.K., by her parents R.K. and S.L.,
24
25                Plaintiff-Appellee,
26
27                             -- v. --
28
29   New York City Department of Education,
30
31                Defendant-Appellant.
32
33   -----------------------------------------------------x
34
35   E.Z.-L., by her parents R.L. and A.Z.,
36
37                Plaintiff-Counter-Defendant-Appellant,
38
39                             -- v. --
                                              1
 1
 2   New York City Department of Education,
 3
 4               Defendant-Counter-Claimant-Appellee.
 5
 6
 7   -----------------------------------------------------x
 8
 9   B e f o r e :   WINTER, WALKER, and CABRANES, Circuit Judges.
10          Defendant New York City Department of Education (“the

11   Department”) appeals from an order of the United States District

12   Court for the Southern District of New York (Robert W. Sweet,

13   Judge) granting summary judgment to R.E. and M.E. on their claim

14   for tuition reimbursement under the Individuals with Disabilities

15   Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and a separate

16   order of the District Court for the Eastern District of New York

17   (Kiyo A. Matsumoto, Judge) granting summary judgment to R.K. on

18   her claim for tuition reimbursement under the IDEA.   Plaintiff-

19   counter-defendant E.Z.-L. appeals from an order of the Southern

20   District of New York (Sidney H. Stein, Judge) denying her claim

21   for tuition reimbursement under the IDEA.   These appeals were

22   heard in tandem due to common questions of law.    In resolving a

23   central question presented by these appeals, we hold that courts

24   must evaluate the adequacy of an IEP prospectively as of the time

25   of the parents’ placement decision and may not consider

26   “retrospective” testimony regarding services not listed in the

27   IEP.   However, we reject a rigid “four-corners rule” that would



                                       2
 1   prevent a court from considering evidence explicating the written

 2   terms of the IEP.

 3        In light of this holding and for further reasons we

 4   elaborate, we reach the following conclusions in the three

 5   appeals.   In R.E., no. 11-1266-cv, we find that the Department

 6   offered the student a free and appropriate public education

 7   (“FAPE”) and REVERSE the decision of the district court.   In

 8   R.K., no. 11-1474-cv, we find that the Department failed to offer

 9   the student a FAPE and AFFIRM the decision of the district court.

10   In E.Z.-L., no. 11-655-cv, we find that the Department offered

11   the student a FAPE and AFFIRM the decision of the district court.

12

13
14                                  TRACEY SPENCER WALSH, (Gary S.
15                                  Mayerson, Maria C. McGinley, on the
16                                  brief), Mayerson & Associates, New
17                                  York, New York, for Plaintiffs-
18                                  Appellees R.E. and M.E.
19
20                                  ALAN G. KRAMS (Kristin M. Helmers,
21                                  Lesley Berson Mbaye, on the brief)
22                                  for Corporation Counsel for the
23                                  City of New York, NY, for
24                                  Defendant-Appellant New York City
25                                  Department of Education.
26
27                                  TRACEY SPENCER WALSH, (Gary S.
28                                  Mayerson, Maria C. McGinley, on the
29                                  brief), Mayerson & Associates, New
30                                  York, New York, for Plaintiff-
31                                  Appellee R.K.
32
33                                  ALAN G. KRAMS (Stephen J. McGrath,
34                                  Kimberly Conway, Julie Steiner, on
35                                  the brief) for Corporation Counsel
                                      3
 1                                   for the City of New York, NY, for
 2                                   Defendant-Appellant New York City
 3                                   Department of Education.
 4
 5                                   GARY S. MAYERSON, (Tracey Spencer
 6                                   Walsh, Brianne N. Dotts, on the
 7                                   brief), Mayerson & Associates, New
 8                                   York, New York, for Plaintiff-
 9                                   Counter-Defendant–Appellant E.Z.-L.
10
11                                   ALAN G. KRAMS (Kristin M. Helmers,
12                                   Lesley Berson Mbaye, on the brief)
13                                   for Corporation Counsel of the City
14                                   of New York, NY, for Defendant-
15                                   Appellee New York City Department
16                                   of Education.
17
18   JOHN M. WALKER, JR., Circuit Judge:

19          These cases require us to resolve several legal issues

20   related to the rights of disabled children under the Individuals

21   with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et

22   seq.   In these three cases, parents of autistic children

23   (collectively and in their respective pairs, “the parents”)

24   declined school placements offered by the New York City

25   Department of Education (“the Department”) and placed their

26   children in private schools.   The parents brought due process

27   claims against the Department for tuition reimbursement on the

28   grounds that the Department’s public school placement offers for

29   their children were inadequate.   In each case, the parents were

30   initially granted relief following a hearing before an impartial

31   hearing officer (“IHO”), but subsequently were denied relief

32   after the IHO’s decision was reversed on appeal by the state

                                       4
 1   review officer (“SRO”).   In each case, the SRO relied in part on

 2   testimony from Department personnel about the educational program

 3   the student would have received if he or she had attended public

 4   school.   The parents challenge the appropriateness of relying on

 5   such testimony, which for ease of reference we refer to in

 6   shorthand as “retrospective testimony.”

 7        In each case, the parents sought to have the SRO’s

 8   determination reversed by the appropriate United States District

 9   Court, and in two of the three cases they succeeded.   In R.E.,

10   no. 11-1266-cv, the District Court for the Southern District of

11   New York (Robert W. Sweet, Judge) found that the Department

12   failed to provide the student with a free and appropriate public

13   education (“FAPE”) and granted summary judgment for the parents.

14   In R.K., no. 11-1474-cv, the District Court for the Eastern

15   District of New York (Kiyo A. Matsumoto, Judge) similarly found

16   that the Department failed to provide the student with a FAPE and

17   granted summary judgment for the parents.   In E.Z.-L., no. 11-

18   655-cv, however, the District Court for the Southern District of

19   New York (Sidney H. Stein, Judge) found that the Department had

20   provided the student with a FAPE and granted it summary judgment.

21        Among the legal conclusions we reach, we conclude that the

22   use of retrospective testimony about what would have happened if

23   a student had accepted the Department’s proposed placement must

24   be limited to testimony regarding the services described in the
                                      5
 1   student’s individualized educational program (“IEP”).   Such

 2   testimony may not be used to materially alter a deficient written

 3   IEP by establishing that the student would have received services

 4   beyond those listed in the IEP.   In light of this and other legal

 5   conclusions, we reverse the decision of the district court in

 6   R.E., and we affirm the decisions of the district courts in R.K.

 7   and E.Z.-L.

 8                               BACKGROUND


 9   I. The Legal Framework

10        Before delving into the facts of these cases, it is useful

11   to understand the legal framework of the IDEA.   A state receiving

12   federal funds under the IDEA must provide disabled children with

13   a free and appropriate public education (“FAPE”).   Cerra v.

14   Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).     To

15   ensure that qualifying children receive a FAPE, a school district

16   must create an individualized education program (“IEP”) for each

17   such child.   See 20 U.S.C. § 1414(d); Murphy v. Arlington Cent.

18   Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002)

19   (describing the IEP as the “centerpiece” of the IDEA system).

20   The IEP is “a written statement that sets out the child’s present

21   educational performance, establishes annual and short-term

22   objectives for improvements in that performance, and describes

23   the specially designed instruction and services that will enable


                                       6
 1   the child to meet those objectives.”   D.D. ex rel. V.D. v. N.Y.C.

 2   Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal

 3   quotation marks omitted).    The IDEA requires that an IEP be

 4   “reasonably calculated to enable the child to receive educational

 5   benefits.”   Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982).

 6        In New York, the state has assigned responsibility for

 7   developing IEPs to local Committees on Special Education

 8   (“CSEs”).    N.Y. Educ. Law § 4402(1)(b)(1); Walczak v. Fla. Union

 9   Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998).     CSEs are

10   comprised of members appointed by the local school district’s

11   board of education, and must include the student’s parent(s), a

12   regular or special education teacher, a school board

13   representative, a parent representative, and others.    N.Y. Educ.

14   Law § 4402(1)(b)(1)(a).   The CSE must examine the student’s level

15   of achievement and specific needs and determine an appropriate

16   educational program.   Gagliardo v. Arlington Cent. Sch. Dist.,

17   489 F.3d 105, 107-08 (2d Cir. 2007).

18        If a parent believes that his child’s IEP does not comply

19   with the IDEA, the parent may file a “due process complaint” (a

20   type of administrative challenge unrelated to the concept of

21   constitutional due process) with the appropriate state agency.

22   20 U.S.C. § 1415(b)(6).   In such cases, the IDEA mandates that

23   states provide “impartial due process hearings” before impartial

24   hearing officers (“IHOs”).   Id. § 1415(f).   Under New York’s
                                       7
 1   administrative system, the parties first pursue their claim in a

 2   hearing before an IHO.    N.Y. Educ. Law § 4404(1).   Either party

 3   may then appeal the case to the state review officer (“SRO”), who

 4   may affirm or modify the IHO’s order.    Id. § 4404(2).    Either

 5   party may then bring a civil action in state or federal court to

 6   review the SRO’s decision.    20 U.S.C. § 1415(i)(2)(A).

 7

 8   II. Facts

 9           Like most IDEA cases, the consolidated appeals before us are

10   fact-intensive.    We therefore find it necessary to set forth in

11   some detail the facts of the three cases.

12

13   A. R.E., No. 11-1266-cv

14           1. Background

15           J.E., the son of R.E. and M.E., is an autistic child born in

16   1999.    Since September 2002, J.E. has attended the private

17   McCarton School (“McCarton”) located in Manhattan.    May 2007,

18   R.E. and M.E. rejected the Department’s offer of a 6:1:1 (six

19   students, one teacher, one paraprofessional aide) classroom

20   setting in a special public school for the 2007-08 school year.

21   After the Department conceded that the 2007-08 placement had

22   failed to provide a FAPE, the IHO found that the parents were

23   entitled to reimbursement, which conclusion is not challenged in



                                        8
 1   this appeal.   J.E. continued at McCarton during the 2007-08

 2   school year.

 3        At McCarton, J.E. was in a classroom with five other

 4   children and a 1:1 student-to-teacher ratio (i.e., each student

 5   had his or her own teacher).   Each week he received approximately

 6   30 hours of applied behavioral analysis (“ABA”) therapy, which is

 7   an intensive one-on-one therapy that “involves breaking down

 8   activities into discrete tasks and rewarding a child’s

 9   accomplishments.”   Cnty. Sch. Bd. v. Z.P. ex rel. R.P., 399 F.3d

10   298, 301 (4th Cir. 2005) (internal quotation marks omitted).          He

11   also received 1:1 speech and language therapy five times a week

12   in 60-minute sessions, and 1:1 occupational therapy five times a

13   week in 45-minute sessions.

14        2. The IEP

15        On May 21, 2008, the Department convened a CSE to develop an

16   IEP for the 2008-09 school year.       Present at this meeting were

17   R.E., J.E.’s father; Xin Xin Guan, the Department’s

18   representative; Jane O’Connor, a special education teacher;

19   Jeanette Betty, a parent representative; Tara Swietek, J.E.’s

20   head teacher at McCarton; Kelly Lynn Landris, a McCarton speech

21   and language pathologist; Nipa Bhandari, a McCarton occupational

22   therapist; and Ivy Feldman, McCarton’s director.

23        Because J.E. had never attended public school, the CSE

24   relied primarily on information it received from McCarton.      This
                                        9
 1   information consisted of an educational progress report, which

 2   explained J.E.’s aptitude with communication, cognition, social

 3   skills, and adaptive behaviors, and recommended continuation of

 4   his current course of 1:1 therapy; a speech and language progress

 5   report, which evaluated J.E.’s language abilities and recommended

 6   a continued course of five 60-minute sessions per week; and an

 7   occupational therapy progress report, which outlined J.E.’s

 8   progress and goals and recommended that he continue with his

 9   current course of five 45-minute sessions per week and continue

10   to participate in yoga sessions.       Additionally, Carol Schaechter,

11   a Department employee, observed J.E. for one day at McCarton.

12   Her report related J.E.’s activities and noted some behavioral

13   problems.    It made no recommendations.

14           The resulting IEP offered J.E. a 12-month placement in a

15   special class in a public school with a staffing ratio of 6:1:1.

16   It also provided J.E. with a dedicated full-time paraprofessional

17   aide.    The IEP included speech therapy, occupational therapy, and

18   counseling as related services.    The CSE also produced a

19   Functional Behavioral Assessment (“FBA”).      The FBA identified six

20   problem behaviors that interfere with J.E.’s learning:

21   scripting/self-talk, eye closing, vocal protests, impulsivity,

22   anxiety, and escape behaviors.    The CSE created a corresponding

23   Behavior Intervention Plan (“BIP”), stating that prompting,

24   redirection, positive reinforcement, token economy, and a written
                                       10
 1   schedule were the primary strategies that would be used to

 2   address J.E.’s problem behaviors.

 3        On June 9, 2008, the Department mailed R.E. and M.E. a final

 4   notice of recommendation (“FNR”) offering a classroom at P.S. 208

 5   that provided the services listed in the IEP.   After the parents

 6   visited P.S. 208, R.E. sent a letter to the Department rejecting

 7   the proposed placement because it lacked sufficient 1:1

 8   instruction.   R.E. stated that he would be willing to consider

 9   other placements, but that if none was offered, J.E. would

10   continue at McCarton.   The Department did not offer an

11   alternative placement, and on February 11, 2009, the parents

12   filed a Demand for Due Process seeking tuition reimbursement for

13   the 2008-09 school year.

14        3. The Due Process Hearing and IHO Determination

15        At the due process hearing, Department psychologist Xin Xin

16   Guan, who had represented the Department at the IEP meeting,

17   testified that the CSE had reviewed all of the McCarton reports.

18   Based on these documents, Guan believed that the IEP was

19   appropriate.   Specifically, she believed that the 6:1:1 staffing

20   ratio “could provide [J.E.] with the support[] needed to address

21   his academic and social-emotional needs.”   June 16, 2009 Hearing

22   Transcript at 278-79, Joint Appendix (“J.A.”) 306-07.     She

23   testified that she felt a non-public-school placement would be

24   too restrictive, and that it would not hurt J.E. to be exposed to
                                     11
 1   methodologies besides ABA therapy.   Guan further explained that

 2   she had developed the FBA and BIP based on the McCarton reports.

 3   She acknowledged that she lacked specific information about the

 4   frequency and duration of J.E.’s problem behaviors.

 5        Peter De Nuovo, a special education teacher at P.S. 208,

 6   testified that he would have been J.E.’s teacher at P.S. 208.     He

 7   described his classroom, noting that for the 2008-09 school year,

 8   he had five students in his class ranging from nine to twelve

 9   years old.   He stated that he was supported by a classroom

10   paraprofessional, Kesha Danc, who had about ten years’ experience

11   working with autistic children, and that, in addition, three of

12   the students had their own paraprofessionals.   De Nuovo described

13   his methods of instruction.   He also testified about techniques

14   he would have used to remedy J.E.’s problem behaviors.

15        Two McCarton personnel, Joe Pierce and Ivy Feldman,

16   countered the testimony of Guan and De Nuovo: they testified that

17   J.E. requires 1:1 teacher support and would not be able to learn

18   in a 6:1:1 setting.

19        On August 28, 2009, IHO William J. Wall issued a decision

20   granting the parents’ reimbursement request.    He noted that the

21   Department representatives had no personal knowledge of J.E., but

22   the McCarton personnel did.   He found that the evidence before

23   the CSE did not support the conclusion that J.E. could succeed in

24   a 6:1:1 setting because the only evaluations of J.E. stated that
                                     12
 1   he required 1:1 teacher support.     Additionally, he found that the

 2   proposed IEP did not include the amount of related services

 3   recommended by the McCarton reports.    The IHO concluded that

 4   “[t]he testimony and the evidence does not support the District’s

 5   conclusion that a 6:1:1 program would be an educational setting

 6   that would be calculated to provide [J.E.] with meaningful

 7   educational progress.”   IHO Decision at 7, J.A. 673.

 8        The IHO also faulted the Department for its failure to

 9   conduct an adequate FBA and develop an appropriate BIP.    Although

10   these documents were prepared, they purportedly failed to meet

11   the criteria laid out in New York State regulations because they

12   did not contain specific information about the frequency,

13   duration, and intensity of the problem behaviors.    See N.Y. Comp.

14   Codes R. & Regs. tit. 8, § 200.22(a)(3), (b)(5).    The IHO went on

15   to find that the McCarton school was an appropriate placement and

16   that J.E.’s parents were entitled to full tuition reimbursement.

17        4. The SRO Decision

18        The Department appealed, and on December 14, 2009, SRO Paul

19   F. Kelly issued a lengthy opinion reversing the IHO and denying

20   tuition reimbursement.   The SRO concluded that the goals and

21   objectives listed in the IEP were adequately linked to J.E.’s

22   academic level and needs, and that, contrary to the IHO’s

23   finding, a 6:1:1 program was appropriate.    The SRO noted De

24   Nuovo’s testimony that his class actually consisted of five
                                     13
 1   students and five adults (himself, the classroom aide, and the

 2   three dedicated paraprofessionals), and emphasized that the

 3   instructor and paraprofessionals were adequately trained and had

 4   appropriate credentials.    Ultimately, the SRO concluded that “the

 5   hearing record illustrates that the recommended classroom would

 6   have been able to appropriately support the student with 1:1

 7   paraprofessional support such that a FAPE was offered.”       SRO

 8   Opinion at 18, J.A. 701.    The SRO further found that, although

 9   the McCarton reports indicated a need for 1:1 support, they did

10   not suggest that 1:1 paraprofessional support would be

11   insufficient.

12          The SRO went on to state that De Nuovo would have “adapted

13   the New York State curriculum to meet the students’ individual

14   needs.”   Id.    He cited specific examples from De Nuovo’s

15   testimony as to what strategies he would have used to work with

16   J.E.   The SRO also found that the lack of specific data in the

17   FBA was not fatal to the IEP.    He noted that the IEP contained

18   strategies to deal with J.E.’s problem behaviors and also

19   referred to specific strategies that De Nuovo would have used in

20   the classroom.    Finally, he concluded that the absence of parent

21   training and counseling from the written IEP was acceptable

22   because the record showed that adequate counseling opportunities

23   would have been available at P.S. 208.

24
                                       14
 1          5. Proceedings in the District Court

 2          The parents then brought this action in the United States

 3   District Court for the Southern District of New York seeking a

 4   reversal of the SRO’s decision.      On March 11, 2011, the district

 5   court granted summary judgment for the parents and reversed the

 6   SRO.   R.E. v. N.Y.C. Dep’t of Educ., 785 F. Supp. 2d 28 (S.D.N.Y.

 7   2011).    The district court found that the SRO had based his

 8   conclusion on “after-the-fact testimony . . . as to what the

 9   teacher, De Nuovo, would have done if J.E. had attended his

10   class.”   Id. at 41.   It adopted the rule that “[t]he sufficiency

11   of the IEP is determined from the content within the four corners

12   of the IEP itself.”    Id. at 42.    The district court found that

13   the SRO had reversed the IHO primarily on the basis of De Nuovo’s

14   testimony, and that there was no evidence in the record to

15   support the SRO’s conclusion that a 1:1 paraprofessional aide was

16   adequate for J.E.   Id. at 42-43.        It further concluded that the

17   SRO’s decision was not based on educational policy, “particularly

18   given that it relies so heavily on the testimony [of] individuals

19   who lacked personal knowledge of J.E.”        Id. at 43.   The

20   Department appeals.

21

22

23

24
                                         15
 1   B. R.K., No. 11-1474-cv

 2        1. Background

 3        R.K., the daughter of R.K. and S.L., is an autistic child

 4   born in 2004.   R.K. was first diagnosed with autism at age two.

 5   Prior to mid-2006, she received home-based therapy (occupational

 6   and speech therapy as well as ABA) through New York’s Early

 7   Intervention Program.   In July 2006, R.K. began a full-day

 8   preschool program at the Interdisciplinary Center for Child

 9   Development (“ICCD”).   She was placed in an 8:1:3 classroom

10   (eight students, one teacher, three classroom aides), and

11   received separate speech and language therapy and occupational

12   therapy three times each week in 30-minute 1:1 sessions.

13   Starting in September 2007, R.K. received five two-hour 1:1 ABA

14   therapy sessions per week at home through TheraCare.

15        2. The IEP

16        On April 29, 2008, the CSE met to create an IEP for R.K. for

17   the 2008-09 school year.   Present at the meeting were R.K.’s

18   parents; Dr. Wanda Enoch, the Department representative; Tracy

19   Spiro, a special education teacher; Rita Halpern, a general

20   education teacher; a parent representative; and a school social

21   worker.   The CSE reviewed extensive reports on R.K., including a

22   pediatric report by neurologist Dr. John T. Wells, which

23   concluded that R.K. was high-functioning autistic and should

24   continue with an ABA-based program; a social history update from
                                     16
 1   ICCD, which concluded that the ABA method was effective for R.K.

 2   and that she should remain in a small, structured environment; a

 3   psycho-educational evaluation by school psychologist Chris

 4   Starvopoulos, finding that R.K. was too unstable to be evaluated

 5   but opining that she required a highly structured environment; a

 6   TheraCare age-out report concluding that R.K. required continued

 7   1:1 special education services, as well as related services; a

 8   progress report from ICCD, prepared by Tracey Spiro, concluding

 9   that R.K. would benefit from a small and highly structured

10   classroom environment; a speech progress report from the ICCD,

11   again recommending a small, structured learning environment and

12   three 1:1 speech and language sessions per week; an occupational

13   therapy progress report from ICCD recommending three occupational

14   therapy sessions per week; a private evaluation by the McCarton

15   Center, recommending 40 hours of 1:1 ABA therapy per week,

16   “manding” sessions (in which a child is shown reinforcing items

17   she can access upon request), five 60-minute speech and language

18   therapy sessions per week, five 60-minute occupational therapy

19   sessions per week in a sensory gym, and two hours of ABA training

20   per week for the parents; and a checklist prepared after a

21   preschool observation of R.K recommending a 6:1:1 classroom.

22        The resulting IEP offered a 6:1:1 class in a special public

23   school.   It offered speech and language therapy and occupational

24   therapy, each three times a week in 30-minute sessions.   It
                                     17
 1   stated that R.K. demonstrated “self-stimulatory behaviors which

 2   interfere[d] with her ability to attend to tasks and to socially

 3   interact with others.”   IEP at 3, J.A. 610.   However, it

 4   concluded that her behavior “does not seriously interfere with

 5   instruction and can be addressed by the . . . special education

 6   classroom teacher.”   IEP at 4, J.A. 612.

 7        On May 7, 2008, before the parents received a final

 8   placement offer from the Department, they signed a contract to

 9   enroll R.K. in the Brooklyn Autism Center (“BAC”), a private

10   school.   The contract allowed the parents to withdraw prior to

11   September 10, 2008, and be reimbursed for their tuition payments

12   minus a $1,000 non-refundable deposit.   On June 12, 2008, the

13   Department provided R.K.’s parents with an FNR offering her a

14   classroom at “P075Q @ Robert E. Peary Schl” (“P075Q”).    On June

15   26, 2008, the parents notified the Department that they rejected

16   the proposed placement and would be sending R.K. to BAC.      They

17   primarily cited inadequate 1:1 ABA support in the IEP.

18        3. The Due Process Hearing and IHO Determination

19        On June 27, 2008, the parents filed a Demand for Due Process

20   seeking reimbursement for their 2008-09 tuition at BAC.      IHO Mary

21   Noe held a hearing on January 7 and 8, 2009.   At the hearing,

22   Jamie Nicklaus, the Educational Director at BAC, testified that

23   R.K. required 1:1 instruction to make progress.   Leonilda Perez,

24   who would have been R.K.’s teacher at P075Q, testified about her
                                     18
 1   classroom practices.   She stated that she used a method called

 2   Treatment and Education of Autistic and Communication–Related

 3   Handicapped Children (“TEACCH”) with some elements of ABA.    The

 4   TEACCH method differs from ABA therapy in that it places greater

 5   emphasis on visual skills, independent work, and group

 6   instruction.   See Z.P., 399 F.3d at 302.   Perez testified that

 7   she conducted 1:1 ABA sessions, including manding, with each

 8   student.   Perez further stated that, based on the information in

 9   R.K.’s IEP, she might have had to create a BIP for R.K.

10        Dr. Enoch, a school psychologist and the Department’s

11   representative at the CSE, testified that a 1:1 setting would be

12   too restrictive for R.K. and that it would be better for her to

13   interact with a small group.   She stated that no formal FBA or

14   BIP was necessary because R.K.’s preschool teacher said she was

15   “no behavior problem.”   January 7, 2009 Hearing Transcript at

16   144-45, J.A. 82-83.    Desiree Sandoval, the parent coordinator at

17   P075Q, testified that the school would have provided various

18   counseling and training opportunities for the parents at their

19   request.

20        On February 25, 2009, the IHO issued a decision awarding

21   tuition reimbursement to R.K.’s parents.    Based on the record,

22   the IHO found that there was “no one unanimous theory as to

23   whether this student needs 1:1 or just a highly structured

24   environment.   There is a consensus that the student needs an ABA
                                      19
 1   program, speech and language and occupational therapy.”      IHO

 2   Opinion at 5, J.A. 677.       The IHO found that because the IEP’s

 3   recommended program was a 6:1:1 classroom and provided only 25

 4   minutes of 1:1 ABA therapy per day, it did not have an adequate

 5   level of support for R.K.

 6           However, the IHO found that the parents were entitled to

 7   only partial reimbursement because the BAC program selected by

 8   the parents met only part of R.K.’s special education needs and

 9   provided more individualized instruction than her assessments

10   warranted.    The IHO noted that R.K. received 1:1 therapy all day,

11   which she felt was more restrictive than warranted by R.K.’s

12   providers’ consistent recommendations of a small, structured

13   environment.    Additionally, she found that no therapies were

14   provided in the BAC classroom and there were no integrated

15   efforts by therapists and teachers.      The IHO then calculated the

16   appropriate award by multiplying the Department’s rate for ABA

17   therapists ($45 per hour, less than the $62.50 per hour charged

18   by BAC) times the number of hours of 1:1 ABA instruction (an

19   estimate created by halving the total number of school hours).

20   She arrived at an award of $32,400.      BAC’s tuition is $90,000 per

21   year.

22           4. The SRO Decision

23           The Department appealed, and on June 19, 2009, SRO Kelly

24   issued a decision reversing the IHO and denying tuition
                                         20
 1   reimbursement entirely.   He found that the IEP provided an

 2   adequate program to address R.K.’s speech and language deficits

 3   as well as her motor sensory deficits because it provided for

 4   speech and language therapy and occupational therapy.   Relying

 5   extensively on Perez’s testimony about her classroom methods, the

 6   SRO found that the proposed 6:1:1 program was sufficient.     He

 7   noted that Perez used TEACCH methodology with some elements of

 8   ABA, and stated that R.K. would have received 25 minutes of 1:1

 9   ABA instruction per day, including manding.   The SRO also found,

10   based on Perez’s testimony, that she would have conducted an FBA

11   and developed a BIP to address R.K.’s problem behaviors.

12   Ultimately, the SRO found that “[t]he hearing record indicates

13   that the recommended 6:1+1 class would have provided the student

14   with a small, highly structured classroom environment along with

15   the opportunity to interact with peers. . . . In addition, the

16   student would have received individual instruction and that

17   instruction would have been ABA-based.”    SRO Opinion at 19, J.A.

18   762.

19          The SRO dismissed the concern that the IEP did not include

20   parent training or counseling, as required by state regulation,

21   because of Sandoval’s testimony that the P075Q would have

22   provided parent training and counseling.   Similarly, he found

23   that although the IEP did not include the required 30-60 minutes

24   of daily speech therapy, Perez had testified that this therapy
                                      21
 1   was incorporated into her class, and the requirement was

 2   therefore satisfied.   Finally, the SRO acknowledged that no FBA

 3   or BIP had been completed but found that this did not amount to a

 4   denial of a FAPE because Perez would have created a BIP and the

 5   parents had not articulated how R.K. would have been harmed by

 6   not having a BIP in place before entering the class.

 7        5. Proceedings in the District Court

 8        R.K.’s parents then initiated the present action seeking a

 9   reversal of the SRO’s decision and full tuition reimbursement.

10   On January 21, 2011, Magistrate Judge Roanne L. Mann issued a

11   recommendation that summary judgment be granted for the parents.

12   R.K. ex rel. R.K. v. N.Y.C. Dep’t of Educ., No. 09-CV-4478 (KAM),

13   2011 WL 1131492 (E.D.N.Y. Jan. 21, 2011).   She concluded that the

14   Department’s failure to conduct an FBA and develop a BIP was

15   significant because the record plainly established that R.K.’s

16   behavioral problems impeded her learning.   Id. at *17-20; see

17   also N.Y. Comp. Codes R. & Regs. tit. 8, § 200.4(b)(1)(v).     She

18   found that the goals and objectives in the IEP were not adequate

19   because they did not provide specific strategies for addressing

20   problem behaviors.   R.K., 2011 WL 1131492, at *19; see also N.Y.

21   Comp. Codes R. & Regs. tit. 8, § 200.22(b)(4).   Judge Mann

22   rejected as insufficient Perez’s testimony that she would have

23   created a BIP once R.K. was in her class.   R.K., 2011 WL 1131492,

24   at *20.
                                     22
 1        Notably, Judge Mann rejected testimony offered by the

 2   Department to attempt to overcome omissions in the IEP:     “More

 3   broadly, the Court rejects, as fundamentally flawed, the DOE’s

 4   invitation to the Court to overlook deficiencies in the IEP based

 5   on subsequent testimony that the recommended placement might have

 6   later sought to cure those deficiencies.”     Id.   Following similar

 7   reasoning, Judge Mann rejected the SRO’s reliance on testimony

 8   that, despite being omitted in the IEP, parent counseling and

 9   speech and language therapy would have been provided in practice.

10   Id. at *21.

11        Judge Mann also rejected the SRO’s conclusion that the

12   proposed 6:1:1 placement was sufficient.     She noted that,

13   although R.K. would have received 25 minutes of 1:1 ABA per day,

14   the consensus view of the professional evaluations was that this

15   amount of 1:1 support would be insufficient.     Id. at *23.    She

16   further noted that 1:1 instruction is not inconsistent with a

17   small group setting.   Id. at *24.

18        Ultimately, Judge Mann concluded that the IEP was inadequate

19   and R.K. had been denied a FAPE.      She determined that the SRO had

20   ignored the clear consensus of R.K.’s evaluators and failed to

21   consider the cumulative effect of the numerous procedural

22   deficiencies.   Id. at *24-25.   She disagreed with the IHO’s

23   partial award determination and recommended that the parents

24   receive full reimbursement.   Id. at *27-30.     On March 28, 2011,
                                      23
 1   the United States District Court for the Eastern District of New

 2   York (Kiyo A. Matsumoto, Judge) adopted the magistrate’s

 3   recommendation in full, over the Department’s objection.     R.K. ex

 4   rel. R.K. v. N.Y.C. Dep’t of Educ., No. 09-CV-4478 (KAM) (RLM),

 5   2011 WL 1131522 (E.D.N.Y. Mar. 28, 2011).   The Department

 6   appeals.

 7

 8   C. E.Z.-L., No. 11-655-cv

 9        1. Background

10        E.Z.-L., the daughter of R.L. and A.Z., is an autistic child

11   born in 2002.    Since September 2005, E.Z.-L. has attended the

12   Rebecca School, a private school located in Manhattan.   In 2007,

13   the Department offered E.Z.-L. a placement for the   2007-08

14   school year.    The parents rejected this placement and re-enrolled

15   her at the Rebecca School.   The parents then sought tuition

16   reimbursement.    During the due process hearing, the Department

17   conceded that it had failed to provide a FAPE, but argued that

18   the Rebecca School was not an appropriate placement.   The IHO

19   concluded that the Rebecca School was appropriate and awarded the

20   parents tuition for the 2007-08 school year.   The Department did

21   not appeal.

22        2. The IEP

23        On April 30, 2008, a CSE met to create an IEP for E.Z.-L.

24   for the 2008-09 school year.   Present at the meeting were Feng
                                      24
 1   Ye, a special education teacher acting as the Department’s

 2   representative; a Department general education teacher; a parent

 3   representative; a social worker from the Rebecca School; and

 4   Rebecca Starr, E.Z.-L.’s teacher at the Rebecca School.   The CSE

 5   reviewed numerous documents from the Rebecca School and private

 6   clinicians, including a January 2, 2008 occupational therapy

 7   progress report, which described E.Z.-L.’s ability to use a

 8   sensory gym; a January 2008 progress report from the Rebecca

 9   School detailing E.Z.-L.’s progress in a number of areas; a

10   February 6, 2008 speech and language progress report recommending

11   continued speech interventions; a March 30, 2008 occupational

12   therapy progress report, which recommended occupational therapy

13   three times per week individually and once per week in a dyad

14   (group of two); an April 2008 speech and language progress

15   report, which recommended continued speech and language therapy

16   in three 30-minute sessions per week (two sessions individually,

17   one in a dyad); and a May 2008 progress report, which showed

18   notable progress in most areas.

19        The resulting IEP offered E.Z.-L. a place in a specialized

20   public school with a staffing ratio of 6:1:1.   It also included

21   occupational therapy, speech and language therapy, and

22   counseling.    The IEP did not include an FBA or BIP because it

23   found that E.Z.-L.’s behavior did not seriously interfere with

24   instruction.   On May 8, 2008, the Department issued an FNR
                                       25
 1   placing E.Z.-L. at the Children’s Workshop School in Manhattan.

 2   On May 22, 2008, the parents sent a letter to the Department

 3   stating that, after visiting the proposed school, they rejected

 4   the Department’s recommendation.   The letter stated that the

 5   parents would consider other programs, but in the absence of

 6   another offer, would seek reimbursement for tuition at the

 7   Rebecca School.   On June 25, 2008, the parents sent a followup

 8   letter reiterating their view that the proposed placement was

 9   inappropriate and notifying the Department that they would seek

10   reimbursement for physical therapy and related services in

11   addition to R.K.’s private tuition.

12        3. The Due Process Hearing and IHO Determination

13        On June 27, 2008, the parents filed a Demand for Due Process

14   formally seeking reimbursement.    A hearing was held before IHO

15   Gary D. Peters over the course of five non-consecutive days in

16   2008 and 2009.    At the hearing, Tina McCourt, the program

17   director at the Rebecca School, testified about the school’s

18   methodology.   The school uses the “DIR/Greenspan/floor time”

19   approach, which involves sensory gyms and frequent assessments

20   aided by video monitoring.1   McCourt testified that the sensory


     1
       DIR stands for “Developmental Individual-difference
     Relationship-based” therapy. Unlike ABA, which is a behavioral
     therapy, DIR is primarily based on helping the child build
     relationships and reach a higher developmental level. See A.D.
     v. Bd. of Educ. Of City Sch. Dist. of City of N.Y., 690 F. Supp.
     2d 193, 198-99 (S.D.N.Y. 2010).
                                     26
 1   gym is particularly important for E.Z.-L.    Rebecca Starr, E.Z.-

 2   L.’s teacher at the Rebecca School, testified about E.Z.-L.’s

 3   class.    The class contains seven or eight students, and three

 4   assistant teachers, all of whom have at least a bachelor’s

 5   degree.   Starr described E.Z.-L. as very rigid and explained that

 6   she required a large amount of floor time to overcome this.

 7   Starr also described the speech therapy and DIR therapy provided

 8   at the Rebecca School.

 9        A.Z., E.Z.-L.’s mother, testified that she had visited the

10   Children’s Workshop and had been told that it did not contain a

11   sensory gym or offer DIR support.     She recalled being told that

12   the school conducted occasional parent training events that she

13   could attend.   A.Z. also described the “Throwback Sports”

14   program, a recreational therapeutic program in which she had

15   enrolled E.Z.-L., and for which she was seeking reimbursement

16   from the Department.

17        Feng Ye, a Department special education teacher, explained

18   that, although E.Z.-L. had a history of biting her hands and

19   hitting herself, the IEP team declined to create an FBA or BIP

20   because it believed E.Z.-L.’s behaviors could be addressed by the

21   classroom teacher.   Susan Cruz, an assistant principal at P.S.

22   94, testified about the Children’s Workshop (which was an off-

23   site part of P.S. 94).   Cruz testified about the classroom in

24   which E.Z.-L. would have been placed.    She explained that E.Z.-
                                      27
 1   L.’s teacher would have used TEACCH methodology with some ABA.

 2   Cruz opined that a sensory diet could have been implemented by an

 3   occupational therapist and that the school contained a sensory

 4   room.    She further stated that most of the teachers at the school

 5   do use floor time.    Finally, Cruz testified that the school

 6   provides training for parents on an as-needed basis.

 7           On March 24, 2009, the IHO issued a decision awarding

 8   reimbursement to E.Z.-L.’s parents.     The IHO found that the

 9   Department should have conducted an FBA and created a BIP in

10   light of Ye’s admission that E.Z.-L. exhibited self-injurious

11   behaviors.    He also found that the IEP failed to include the

12   required parent training and counseling.    The IHO concluded that

13   the Department’s failure to recommend a specific placement at the

14   IEP meeting was a procedural violation because parents may join

15   “any group that makes decisions on the educational placement of

16   their child.”    20 U.S.C. § 1414(e).   The IHO was skeptical of

17   Ye’s testimony, noting that she had never worked with autistic

18   children and that she had attended approximately 200 CSE meetings

19   in the spring of 2008 and thus had difficulty remembering exactly

20   what occurred at this particular meeting.    The IHO also faulted

21   the Department’s failure to create a transition plan.    He

22   rejected Cruz’s testimony that such a plan would have been

23   created, noting that transition plans necessarily must be

24   completed in advance.
                                       28
 1        For these reasons, the IHO concluded that E.Z.-L. had been

 2   denied a FAPE.   He further determined that the Rebecca School,

 3   along with E.Z.-L.’s additional services, were appropriate and

 4   that the parents were entitled to reimbursement.

 5        4. The SRO Decision

 6        The Department appealed, and on June 26, 2009, SRO Kelly

 7   issued an opinion reversing the IHO and denying tuition

 8   reimbursement.   The SRO found that the failure to conduct an FBA

 9   or create a BIP was not a violation because Rebecca Starr, E.Z.-

10   L.’s teacher, felt that one was not necessary.   He further found

11   that the failure to include parent training in the IEP was not a

12   violation because training would have been provided by the school

13   as needed.

14        With regard to parent involvement in placement decisions,

15   the SRO found that the failure to recommend a specific school

16   during the CSE meeting was not a violation because the

17   requirement of parent involvement only applies to the general

18   structure of a placement, not the choice of a specific site.    He

19   also found that the failure to develop a transition plan did not

20   amount to a denial of a FAPE because there was no evidence that

21   E.Z.-L. had been harmed by the lack of a plan and the record

22   showed that the proposed school would have been responsive to any

23   issues arising from her transfer.



                                     29
 1        After examining the IEP, the SRO concluded that the proposed

 2   program adequately took into account E.Z.-L.’s difficulties and

 3   abilities and was reasonably calculated to confer educational

 4   benefit.   Based on Cruz’s testimony about the Children’s

 5   Workshop, he concluded that it would have met E.Z.-L.’s needs.

 6        5. Proceedings in the District Court

 7        E.Z.-L.’s parents then instituted this action seeking

 8   reversal of the SRO’s decision.    On January 24, 2011, the United

 9   States District Court for the Southern District of New York

10   granted summary judgment in favor of the Department.   E.Z.-L. ex

11   rel. R.L. v. N.Y.C. Dep’t of Educ., 763 F. Supp. 2d 584 (S.D.N.Y.

12   2011).   The district court agreed with the SRO that the

13   Department had provided a FAPE and had not committed any

14   procedural or substantive violations, and accordingly denied

15   reimbursement.   The parents appeal.

16

17                               DISCUSSION

18        Although each of the three cases on appeal involves

19   individualized and unrelated facts, we address them in a single

20   opinion because they involve common issues of law.   Accordingly,

21   we first examine these common issues before applying the law to

22   each individual case.

23

24
                                       30
 1   I. Legal Framework

 2        “We review de novo the district court’s grant of summary

 3   judgment in an IDEA case.    Summary judgment in this context

 4   involves more than looking into disputed issues of fact; rather,

 5   it is a ‘pragmatic procedural mechanism’ for reviewing

 6   administrative decisions.”   A.C. ex rel. M.C. v. Bd. of Educ.,

 7   553 F.3d 165, 171 (2d Cir. 2009) (internal citations omitted).    A

 8   federal court reviewing a dispute over an IEP must base its

 9   decision on the preponderance of the evidence.    Id.   Moreover, we

10   must defer to the administrative decision because “the judiciary

11   generally lacks the specialized knowledge and experience

12   necessary to resolve persistent and difficult questions of

13   educational policy.”   Id.    Deference is particularly appropriate

14   when the state officer’s review “has been thorough and careful,”

15   but still we do not “simply rubber stamp administrative

16   decisions.”   Walczak, 142 F.3d at 129.

17        Under New York’s Education Law § 4404(1)(c), the local

18   school board bears the initial burden of establishing the

19   validity of its plan at a due process hearing.2   If the board

20   fails to carry this burden, the parents bear the burden of

21   establishing the appropriateness of their private placement and

     2
       Although the Supreme Court has not decided whether a state-
     imposed burden in an initial hearing also applies in a subsequent
     federal suit, see Schaffer v. Weast, 546 U.S. 49, 62 (2005), we
     need not decide that issue here, see M.H. v. N.Y.C. Dep’t of
     Educ., 685 F.3d 217, 225 n.3 (2d Cir. 2012).
                                     31
 1   that the equities favor them.   Cerra, 427 F.3d at 192.    This

 2   framework is known as the Burlington/Carter test.   See Florence

 3   Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of

 4   Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985).

 5        The parties have presented four common questions of law that

 6   we must resolve before turning to each case individually:    First,

 7   when, if ever, is it permissible for a district to augment the

 8   written IEP with retrospective testimony about additional

 9   services that would have been provided at the proposed placement;

10   second, when an IHO and SRO reach conflicting conclusions, what

11   deference should a court pay to each; third, at what point do

12   violations of state regulations governing the IEP process amount

13   to a denial of a FAPE entitling the parents to reimbursement; and

14   finally, must parents be involved in the selection of a specific

15   school for their child?

16

17   Retrospective Testimony

18        This appeal primarily calls upon us to consider the

19   appropriateness of what we have labeled “retrospective

20   testimony,” i.e., testimony that certain services not listed in

21   the IEP would actually have been provided to the child if he or

22   she had attended the school district’s proposed placement.    In

23   each of the cases now before us, the Department offered

24   retrospective testimony at the IHO hearing to overcome
                                     32
 1   deficiencies in the IEP, and the SRO relied on this retrospective

 2   testimony in varying degrees to find that the Department had

 3   provided a FAPE.

 4          The parents urge us to adopt a rigid “four corners” rule

 5   prohibiting any testimony about services beyond what is written

 6   in the IEP.   The Department counters that review should focus on

 7   the services the child would have actually received and therefore

 8   should include evidence of services beyond those listed in the

 9   IEP.   Although we decline to adopt a four corners rule, we hold

10   that testimony regarding state-offered services may only explain

11   or justify what is listed in the written IEP.   Testimony may not

12   support a modification that is materially different from the IEP,

13   and thus a deficient IEP may not be effectively rehabilitated or

14   amended after the fact through testimony regarding services that

15   do not appear in the IEP.

16          The permissibility of retrospective testimony is an open

17   question in this circuit.   See D.F. ex rel. N.F. v. Ramapo Cent.

18   Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (“[T]his court

19   has not, as yet, decided if it is error to consider retrospective

20   evidence in assessing the substantive validity of an IEP.”).

21   Three of our sister circuits have addressed similar, though not

22   identical, questions and have disfavored retrospective evidence.

23   See Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999) (“[W]e

24   examine the adequacy of [the IEPs] at the time the plans were
                                      33
 1   drafted.”); Carlisle Area Sch. v. Scott P., 62 F.3d 520, 530 (3d

 2   Cir. 1995) (holding that an IEP must be judged prospectively from

 3   the time of its drafting); Roland M. v. Concord Sch. Comm., 910

 4   F.2d 983, 992 (1st Cir. 1990) (“[A]ctions of school systems

 5   cannot . . . be judged exclusively in hindsight.   An IEP is a

 6   snapshot, not a retrospective.”).    They are in agreement that the

 7   IEP should be evaluated prospectively as of the time of its

 8   drafting.

 9        The same conclusion has been reached by a number of district

10   courts in this circuit.   See R.E., 785 F. Supp. 2d at 41-42;

11   R.K., 2011 WL 1131492, at *20; J.R. v. Bd. of Educ. of City of

12   Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004);

13   Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724 (S.D.N.Y.

14   2003).   But see E.Z.-L., 763 F. Supp. 2d at 597-98 (finding that

15   lack of parent training provision in IEP did not amount to a

16   violation because hearing testimony established that school would

17   have provided training); M.N. v. N.Y.C. Dept. of Educ., 700 F.

18   Supp. 2d 356, 368 (S.D.N.Y. 2010) (same).

19        We now adopt the majority view that the IEP must be

20   evaluated prospectively as of the time of its drafting and

21   therefore hold that retrospective testimony that the school

22   district would have provided additional services beyond those

23   listed in the IEP may not be considered in a Burlington/Carter

24   proceeding.
                                     34
 1        The Supreme Court has long recognized that the IDEA allows

 2   parents to reject an IEP they feel is inadequate, place their

 3   child in an appropriate private school, and seek tuition

 4   reimbursement from the school district.   See Burlington, 471 U.S.

 5   at 369-70 (construing IDEA’s authorization for courts to award

 6   “appropriate” relief); see also Forest Grove Sch. Dist. v. T.A.,

 7   557 U.S. 230, 242-43 (2009) (finding that amendments to the IDEA

 8   do not abrogate the Burlington decision).   In order for this

 9   system to function properly, parents must have sufficient

10   information about the IEP to make an informed decision as to its

11   adequacy prior to making a placement decision.   At the time the

12   parents must choose whether to accept the school district

13   recommendation or to place the child elsewhere, they have only

14   the IEP to rely on, and therefore the adequacy of the IEP itself

15   creates considerable reliance interests for the parents.    Under

16   the Department’s view, a school district could create an IEP that

17   was materially defective, causing the parents to justifiably

18   effect a private placement, and then defeat the parents’

19   reimbursement claim at a Burlington/Carter hearing with evidence

20   that effectively amends or fixes the IEP by showing that the

21   child would, in practice, have received the missing services.

22   The Department’s view is incorrect.   By requiring school

23   districts to put their efforts into creating adequate IEPs at the

24   outset, IDEA prevents a school district from effecting this type
                                    35
 1   of “bait and switch,” even if the baiting is done

 2   unintentionally.   A school district cannot rehabilitate a

 3   deficient IEP after the fact.

 4        We reject, however, a rigid “four corners” rule prohibiting

 5   testimony that goes beyond the face of the IEP.   While testimony

 6   that materially alters the written plan is not permitted,

 7   testimony may be received that explains or justifies the services

 8   listed in the IEP.   See D.S. v. Bayonne Bd. of Educ., 602 F.3d

 9   553, 564-65 (3d Cir. 2010) (“[A] court should determine the

10   appropriateness of an IEP as of the time it was made, and should

11   use evidence acquired subsequently to the creation of an IEP only

12   to evaluate the reasonableness of the school district’s decisions

13   at the time they were made.”).   For example, if an IEP states

14   that a specific teaching method will be used to instruct a

15   student, the school district may introduce testimony at the

16   subsequent hearing to describe that teaching method and explain

17   why it was appropriate for the student.   The district, however,

18   may not introduce testimony that a different teaching method, not

19   mentioned in the IEP, would have been used.   Similarly, if a

20   student is offered a staffing ratio of 6:1:1, a school district

21   may introduce evidence explaining how this structure operates and

22   why it is appropriate.   It may not introduce evidence that

23   modifies this staffing ratio (such as testimony from a teacher



                                      36
 1   that he would have provided extensive 1:1 instruction to the

 2   student).

 3           The prospective nature of the IEP also forecloses the school

 4   district from relying on evidence that a child would have had a

 5   specific teacher or specific aide.    At the time the parents must

 6   decide whether to make a unilateral placement based on the IEP,

 7   they may have no guarantee of any particular teacher.    Indeed,

 8   even the Department cannot guarantee that a particular teacher or

 9   aide will not quit or become otherwise unavailable for the

10   upcoming school year.    Thus, it is error to find that a FAPE was

11   provided because a specific teacher would have been assigned or

12   because of actions that specific teacher would have taken beyond

13   what was listed in the IEP.    The appropriate inquiry is into the

14   nature of the program actually offered in the written plan.

15           Contrary to the Department’s assertions, this rule does not

16   unfairly skew the reimbursement hearing process.    Parents who end

17   up placing their children in public school cannot later use

18   evidence that their child did not make progress under the IEP in

19   order to show that it was deficient from the outset.3    See Scott

     3
       However, evidence that the school district did not follow the
     IEP as written might be relevant in a later proceeding to show
     that the child was denied a FAPE because necessary services
     included in the IEP were not provided in practice. See K.E. ex
     rel. K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 811 (8th
     Cir. 2011); Bend-Lapine Sch. Dist. v. D.W., 152 F.3d 923, 1998 WL
     442952, at *3 (9th Cir. 1998) (table).

         It is true that, if an IEP is determined to be inadequate, the
                                        37
 1   P., 62 F.3d at 530.   In determining the adequacy of an IEP, both

 2   parties are limited to discussing the placement and services

 3   specified in the written plan and therefore reasonably known to

 4   the parties at the time of the placement decision.   See Fuhrmann

 5   ex rel. Fuhrmann v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1039-

 6   40 (3d Cir. 1993) (“Rowley requires, at the time the initial

 7   evaluation is undertaken, an IEP need only be ‘reasonably

 8   calculated to enable the child to receive educational benefits.’

 9   . . . [T]he measure and adequacy of the IEP can only be

10   determined as of the time it is offered to the student, not at

11   some later date.” (quoting Rowley, 458 U.S. at 206-07)).

12        An important feature of the IDEA is that it contains a

13   statutory 30-day resolution period once a “due process complaint”

14   is filed.   20 U.S.C. § 1415(f)(1)(B).   That complaint must list

15   all of the alleged deficiencies in the IEP.4   The Department then

     parents may provide evidence that the child made actual progress
     at their chosen private placement to support the adequacy of that
     placement. See Frank G. v. Bd. of Educ., 459 F.3d 356, 364-65
     (2d Cir. 2006). However, review of the private placement at that
     stage of Burlington/Carter review is more informal than review of
     the original IEP: a private placement need not meet the IDEA
     requirement for a FAPE and is not subject to the same
     mainstreaming requirement as a public placement. Id. at 364.
     Additionally, the primary problem with retrospective testimony –
     namely, that it prevents parents from making a fully informed
     decision about whether to make a unilateral private placement –
     will usually not apply to private placements, because the school
     district does not rely in any way on the adequacy of the
     alternative program.
     4
       The parents must state all of the alleged deficiencies in the
     IEP in their initial due process complaint in order for the
     resolution period to function. To permit them to add a new claim
                                     38
 1   has thirty days to remedy these deficiencies without penalty.

 2   If, at the end of the resolution period, the parents feel their

 3   concerns have not been adequately addressed and the amended IEP

 4   still fails to provide a FAPE, they can continue with the due

 5   process proceeding and seek reimbursement.   The adequacy of the

 6   IEP will then be judged by its content at the close of the

 7   resolution period.

 8        Because of this resolution period, there is no danger that

 9   parents will take advantage of a school district by failing to

10   alert it to IEP deficiencies and subsequently recover tuition

11   based on those deficiencies.   A school district that

12   inadvertently or in good faith omits a required service from the

13   IEP can cure that deficiency during the resolution period without

14   penalty once it receives a due process complaint.   If, however,

15   the school district fails to rehabilitate an inadequate IEP

16   within the resolution period, it may not later benefit from the

17   use of retrospective evidence - that is, evidence showing that a

18   child’s public education would have been materially different

19   than what was offered in the IEP.   Similarly, parents are

20   precluded in later proceedings from raising additional defects in

21   the IEP that they should have raised from the outset, thus giving

22   the school district a chance to cure the defects without penalty.

     after the resolution period has expired would allow them to
     sandbag the school district. Accordingly, substantive amendments
     to the parents’ claims are not permitted.
                                     39
 1        Our holding today is not inconsistent with our previous

 2   holding in T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 417-19

 3   (2d Cir. 2009).   In T.Y., after finding the IEP appropriate, the

 4   IHO and SRO amended it to include additional required services

 5   that had been omitted.   We upheld this decision.   The Department

 6   contends that our endorsement of a retroactive amendment to the

 7   IEP implicitly allows the use of retrospective evidence.

 8   Crucially, however, in T.Y. the IEP was never found to be

 9   defective.   Thus, neither the IHO nor the SRO used retrospective

10   evidence to remedy a defective IEP; instead they altered an

11   adequate IEP.   See id. at 417 (“[T]he IHO determined that [the

12   lack of certain services] alone did not establish that the

13   overall program recommended by the CSE was inappropriate.”).

14   When an IEP adequately provides a FAPE, it is within the

15   discretion of the IHO and SRO to amend it to include omitted

16   services.

17        Accordingly, we hold that, with the exception of amendments

18   made during the resolution period, an IEP must be evaluated

19   prospectively as of the time it was created.   Retrospective

20   evidence that materially alters the IEP is not permissible.    This

21   rule recognizes the critical nature of the IEP as the centerpiece

22   of the system, ensures that parents will have sufficient

23   information on which to base a decision about unilateral

24   placement, and puts school districts on notice that they must
                                     40
 1   include all of the services they intend to provide in the written

 2   plan.    If a school district makes a good faith error and omits a

 3   necessary provision, they have thirty days after the parents’

 4   complaint to remedy the error without penalty.

 5

 6   II. Deference to State Decision Makers

 7           In each of the cases before us, the IHO’s decision was

 8   reversed on appeal by the SRO.    The parties dispute the degree of

 9   deference that should be afforded to these two state officers.

10   The Department contends that we should defer entirely to the

11   SRO’s views and give no weight to the earlier IHO’s opinion.     The

12   parents urge that the SRO’s opinions were not sufficiently

13   reasoned to warrant deference and that consideration of the IHO’s

14   opinion is appropriate.

15           “[T]he role of the federal courts in reviewing state

16   educational decisions under the IDEA is circumscribed.”

17   Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112-13 (2d

18   Cir. 2007).    We must give “due weight” to the state proceedings,

19   mindful that we lack “the specialized knowledge and experience

20   necessary to resolve . . . questions of educational policy.”     Id.

21   at 113.    It is not for the federal court to “ch[oose] between the

22   views of conflicting experts” on such questions.    Grim v.

23   Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 383 (2d Cir. 2003).

24   When an IHO and SRO reach conflicting conclusions, “[w]e defer to
                                       41
 1   the final decision of the state authorities,” that is, the SRO’s

 2   decision.   A.C., 553 F.3d at 171.     But the question remains: how

 3   much deference?

 4        In a recent opinion, this Circuit resolved the deference

 5   question now posed by the parties.     See M.H. v. N.Y.C. Dep’t of

 6   Educ., 685 F.3d 217 (2d Cir. 2012).     Synthesizing our precedent

 7   on this issue, we concluded that the deference owed to an SRO’s

 8   decision depends on the quality of that opinion.     Reviewing

 9   courts must look to the factors that “normally determine whether

10   any particular judgment is persuasive, for example, whether the

11   decision being reviewed is well-reasoned, and whether it was

12   based on substantially greater familiarity with the evidence and

13   the witnesses than the reviewing court.”     Id. at 244.   However,

14   courts must bear in mind the statutory context and the

15   administrative judges’ greater institutional competence in

16   matters of educational policy.   Id.     The M.H. opinion offers

17   several illustrative examples:

18        [D]eterminations regarding the substantive adequacy of
19        an IEP should be afforded more weight than
20        determinations concerning whether the IEP was developed
21        according to the proper procedures. Decisions
22        involving a dispute over an appropriate educational
23        methodology should be afforded more deference than
24        determinations concerning whether there have been
25        objective indications of progress. Determinations
26        grounded in thorough and logical reasoning should be
27        provided more deference than decisions that are not.
28        And the district court should afford more deference
29        when its review is based entirely on the same evidence
30        as that before the SRO than when the district court has
                                      42
 1          before it additional evidence that was not considered
 2          by the state agency.
 3
 4   Id.    Where, as in our case, the IHO and SRO disagree, the general

 5   rule is that “courts must defer to the reasoned conclusions of

 6   the SRO as the final state administrative determination.”      Id. at

 7   246.

 8          However, when . . . the district court appropriately
 9          concludes that the SRO’s determinations are
10          insufficiently reasoned to merit that deference, and in
11          particular where the SRO rejects a more thorough and
12          carefully considered decision of an IHO, it is entirely
13          appropriate for the court, having in its turn found the
14          SRO’s conclusions unpersuasive even after appropriate
15          deference is paid, to consider the IHO’s analysis,
16          which is also informed by greater educational expertise
17          than that of judges, rather than to rely exclusively on
18          its own less informed educational judgment.
19
20   Id.    Therefore, a court must defer to the SRO’s decision on

21   matters requiring educational expertise unless it concludes that

22   the decision was inadequately reasoned, in which case a better-

23   reasoned IHO opinion may be considered instead.

24

25   III. Procedural Violations

26          In determining whether an IEP complies with the IDEA, courts

27   make a two-part inquiry that is, first, procedural, and second,

28   substantive.   At the first step, courts examine whether there

29   were procedural violations of the IDEA, namely, “whether the

30   state has complied with the procedures set forth in the IDEA.”

31   Cerra, 427 F.3d at 192.    Courts then examine whether the IEP was

                                      43
 1   substantively adequate, namely, whether it was “‘reasonably

 2   calculated to enable the child to receive educational

 3   benefit[s].’”    Id. (quoting Rowley, 458 U.S. at 206-07).

 4   Substantive inadequacy automatically entitles the parents to

 5   reimbursement.   Procedural violations, however, only do so if

 6   they “impeded the child’s right to a [FAPE],” “significantly

 7   impeded the parents’ opportunity to participate in the

 8   decisionmaking process,” or “caused a deprivation of educational

 9   benefits.”   20 U.S.C. § 1415(f)(3)(E)(ii); A.C., 553 F.3d at 172.

10   Multiple procedural violations may cumulatively result in the

11   denial of a FAPE even if the violations considered individually

12   do not.   See Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp.

13   2d 656, 659 (S.D.N.Y. 2005).

14        Two specific procedural violations are common to all three

15   cases under review:   In each case, the Department failed to

16   complete an adequate functional behavioral assessment (“FBA”) and

17   behavior intervention plan (“BIP”), and failed to include parent

18   counseling in the IEP.   New York regulations require the

19   department to conduct an FBA for a student “whose behavior

20   impedes his or her learning or that of others.”   N.Y. Comp. Codes

21   R. & Regs. tit. 8 § 200.4(b)(1)(v).   The FBA includes “the

22   identification of the problem behavior, the definition of the

23   behavior in concrete terms, the identification of the contextual

24   factors that contribute to the behavior . . . and the formulation
                                      44
 1   of a hypothesis regarding the general conditions under which a

 2   behavior usually occurs and probable consequences that serve to

 3   maintain it.”   Id. § 200.1(r).    When a student’s behavior impedes

 4   his learning, a BIP must be developed with strategies to deal

 5   with the problem behavior(s).     Id. § 200.22(b).   We have held

 6   that failure to conduct an FBA is a procedural violation, but

 7   that it does not rise to the level of a denial of a FAPE if the

 8   IEP adequately identifies the problem behavior and prescribes

 9   ways to manage it.   A.C., 553 F.3d at 172.

10        The failure to conduct an adequate FBA is a serious

11   procedural violation because it may prevent the CSE from

12   obtaining necessary information about the student’s behaviors,

13   leading to their being addressed in the IEP inadequately or not

14   at all.   As described above, such a failure seriously impairs

15   substantive review of the IEP because courts cannot determine

16   exactly what information an FBA would have yielded and whether

17   that information would be consistent with the student’s IEP.        The

18   entire purpose of an FBA is to ensure that the IEP’s drafters

19   have sufficient information about the student’s behaviors to

20   craft a plan that will appropriately address those behaviors.

21   See Harris v. District of Columbia, 561 F. Supp. 2d 63, 68

22   (D.D.C. 2008) (“The FBA is essential to addressing a child’s

23   behavioral difficulties, and, as such, it plays an integral role

24   in the development of an IEP.”).
                                       45
 1        The failure to conduct an FBA will not always rise to the

 2   level of a denial of a FAPE, but when an FBA is not conducted,

 3   the court must take particular care to ensure that the IEP

 4   adequately addresses the child’s problem behaviors.    See A.C.,

 5   553 F.3d at 172 (finding that IEP provided appropriate strategies

 6   for student’s problem behaviors when it (1) addressed student’s

 7   attention problem by providing a personal aide to keep child

 8   focused and (2) addressed child’s “minimal” tangential and

 9   fantasy speech with psychiatric and psychological services).    Our

10   precedents have considered the efficacy of IEPs’ treatment of

11   behaviors in particular cases; they should not be read as

12   approving the practice of routinely omitting an FBA.   New York

13   regulations do not permit this shortcut.

14        Additionally, New York regulations require that an IEP

15   provide for parent counseling and training for the parents of

16   autistic children.   N.Y. Comp. Codes R. & Regs. tit. 8 §,

17   200.13(d).   “Parent counseling and training means assisting

18   parents in understanding the special needs of their child;

19   providing parents with information about child development; and

20   helping parents to acquire the necessary skills that will allow

21   them to support the implementation of their child’s

22   individualized education program.”   § 200.1(kk).

23        Although violating New York’s regulations, the failure to

24   include parent counseling in the IEP is less serious than the
                                     46
 1   omission of an FBA.   Whereas the FBA must be conducted in advance

 2   to ensure that the IEP is based on adequate information, the

 3   presence or absence of a parent-counseling provision does not

 4   necessarily have a direct effect on the substantive adequacy of

 5   the plan.   See K.E., 647 F.3d at 811.   Moreover, because school

 6   districts are required by section 200.13(d) to provide parent

 7   counseling, they remain accountable for their failure to do so no

 8   matter the contents of the IEP.    Parents can file a complaint at

 9   any time if they feel they are not receiving this service.     In

10   contrast, the sole value of an FBA is to assist in the drafting

11   of the IEP.   Therefore the failure to conduct an FBA at the

12   proper time cannot be rectified by doing so at a later date.

13   Though the failure to include parent counseling in the IEP may,

14   in some cases (particularly when aggregated with other

15   violations), result in a denial of a FAPE, in the ordinary case

16   that failure, standing alone, is not sufficient to warrant

17   reimbursement.

18        We emphasize again that even minor violations may

19   cumulatively result in a denial of a FAPE.   School districts are

20   well-advised to ensure the IEP complies with the checklist of

21   requirements specified by state regulations.

22

23

24
                                       47
 1   IV. Specificity of Placement Decisions

 2         The parents also contend that the Department committed a

 3   procedural violation in each of these cases by failing to inform

 4   them of the exact school at which their child would be placed at

 5   the IEP meeting or in the final IEP.    The Department’s practice

 6   is to provide general placement information in the IEP, such as

 7   the staffing ratio and related services, and then convey to the

 8   parents a final notice of recommendation, or FNR identifying a

 9   specific school at a later date.     The parents are then able to

10   visit the placement before deciding whether to accept it.

11         The parents argue that this practice violates 20 U.S.C. §

12   1414(e), which mandates that: “Each local educational agency or

13   State educational agency shall ensure that the parents of each

14   child with a disability are members of any group that makes

15   decisions on the educational placement of their child.”    Federal

16   regulations further specify that parents must be part of any

17   group making a “placement decision.”    34 C.F.R. § 300.501(c)(1).

18   We have held, however, that the term “educational placement”

19   refers “‘only to the general type of educational program in which

20   a child is placed.’”   T.Y., 584 F.3d at 419 (quoting Concerned

21   Parents v. N.Y.C. Bd. of Educ., 629 F.2d 751, 756 (2d Cir.

22   1980)).   “[T]he requirement that an IEP specify the ‘location’

23   does not mean that the IEP must specify a specific school site.”

24   Id.   The Department may select the specific school without the
                                     48
 1   advice of the parents so long as it conforms to the program

 2   offered in the IEP.   Id. at 420.5

 3

 4   Application of Relevant Law to the Three Cases

 5   A. R.E. and M.E., No. 11-1266-cv

 6        The parents of J.E. allege that the IEP was substantively

 7   deficient because their child required 1:1 teacher support and

 8   the IEP offered only 1:1 support by a paraprofessional aide.

 9   They further allege procedural violations because the Department

10   failed to conduct an adequate FBA and did not include parent

11   counseling in the IEP.   The district court agreed with the IHO

12   that there had been a substantive violation.   It rejected the

13   SRO’s conclusion that 1:1 paraprofessional support would be

14   sufficient, saying that such a conclusion lacked evidentiary

15   support and ignored uncontradicted evidence that J.E. needed 1:1

16   teacher support.   R.E., 785 F. Supp. 2d at 42.   We disagree.

17

18

     5
       The parents also allege that they were entitled to participate
     directly in school-specific placement decisions due to a
     stipulation reached in a 1979 class action suit. See Jose P. v.
     Ambach, 557 F. Supp. 1230 (S.D.N.Y. 1983). However, the
     certified class in Jose P. encompassed “all handicapped children
     between the ages of five and twenty-one living in New York City
     . . . who have not been evaluated within thirty days or placed
     within sixty days of [notification to the Department].” Id. at
     1239-40. Since the plaintiffs in these cases were timely
     evaluated, the Jose P. stipulation does not apply to them. See
     R.E., 785 F. Supp. 2d at 43-44.
                                     49
 1        1. Substantive Adequacy

 2        The SRO relied heavily on retrospective testimony by Peter

 3   De Nuovo, who would have been J.E.’s teacher if he had accepted

 4   the Department’s placement.    The SRO cited specific classroom

 5   techniques that De Nuovo used, and noted that if J.E. required

 6   more 1:1 instruction than his paraprofessional provided, De Nuovo

 7   would have provided it.   The SRO’s reliance on De Nuovo’s

 8   testimony was inappropriate.   At the time the parents made their

 9   placement decision, they had no way of knowing, much less a

10   guarantee, that J.E. would be taught by De Nuovo as opposed to a

11   different teacher who did not provide additional 1:1 instruction

12   and did not use the same classroom techniques.   The IEP provided

13   for a 6:1:1 classroom with a dedicated aide and must be evaluated

14   on that basis.

15        Despite his reliance on improper testimony, the SRO also

16   based his decision on an appropriate finding: he found no

17   evidence in the record that J.E. actually required 1:1 teacher

18   support, as opposed to 1:1 support by a dedicated aide, to make

19   educational progress.   Similarly, although J.E. had been taught

20   previously with ABA, the SRO found no evidence that he could not

21   make progress with another methodology and 1:1 paraprofessional

22   support.   In so finding, the SRO reversed the IHO’s conclusion,

23   based on the same evidence, that J.E. required 1:1 teacher

24   support.   The adequacy of 1:1 paraprofessional support as opposed
                                      50
 1   to 1:1 teacher support is precisely the kind of educational

 2   policy judgment to which we owe the state deference if it is

 3   supported by sufficient evidence, as is the case here.     Because

 4   we find this portion of the SRO’s decision to be adequately

 5   reasoned, we owe it deference as the final decision of the state.

 6   We therefore find that the IEP was substantively adequate to

 7   provide J.E. with a FAPE.

 8        2. Procedural Violations

 9        J.E.’s parents also allege that the Department’s failure to

10   conduct an adequate FBA and to provide for parent counseling in

11   the IEP deprived J.E. of a FAPE.      With regard to the FBA, the SRO

12   found that the IEP contained adequate strategies to address

13   J.E.’s problem behaviors.   He cited the use of “a visual

14   schedule, verbal support, redirection, prompting, positive

15   reinforcement, and the provision of a 1:1 paraprofessional to

16   target the student’s scripting, fleeing, and anxiety behaviors,”

17   as well as the use of a token economy and a consistent routine.

18   SRO Opinion at 20, J.A. 757.    The SRO also relied, however, on

19   retrospective testimony from De Nuovo as to how he would have

20   developed a BIP and how he would have specifically addressed

21   certain behaviors.   This retrospective testimony must be

22   disregarded.   In spite of this error, however, we conclude that

23   the failure to create an adequate FBA did not amount to a denial

24   of a FAPE.   We note that, although they did not meet state-
                                      51
 1   imposed criteria, an FBA and BIP were created.   In addition, the

 2   McCarton reports reviewed by the CSE contained unusually

 3   extensive documentation of J.E.’s behaviors, and the IEP included

 4   numerous specific strategies to address those behaviors,

 5   including the use of a 1:1 aide to help him focus.   The SRO’s

 6   reliance on the foregoing information was permissible and is

 7   entitled to deference.

 8        The SRO’s reliance on retrospective testimony that parent

 9   training would have been offered at J.E.’s placement was

10   inappropriate.   However, we conclude that the failure to include

11   parent training in the IEP did not rise to the level of a denial

12   of a FAPE, even when considered cumulatively with the

13   deficiencies in the FBA.

14        We have reviewed J.E.’s parents’ other claims and find that

15   they have not demonstrated that J.E. was denied a FAPE for the

16   2008-09 school year.   Accordingly, the judgment of the district

17   court is reversed.

18

19   B. R.K., No. 11-1474-cv

20        R.K.’s parents allege that R.K. was denied a FAPE because

21   (1) the Department failed to conduct an FBA despite R.K.’s

22   serious behavioral problems; (2) the IEP lacked the required

23   provisions for parent counseling and speech and language therapy;

24   and (3) the proposed placement offered insufficient 1:1 remedial
                                     52
 1   instruction and ABA instruction.      The district court adopted a

 2   recommended ruling from the magistrate judge, relying on the

 3   conclusions of the IHO, finding that R.K. had been denied a FAPE

 4   for those reasons.   We agree.

 5        1. Substantive Adequacy

 6        The IHO concluded that “there is no one unanimous theory as

 7   to whether this student needs 1:1 or just a highly structured

 8   environment.   There is a consensus that the student needs an ABA

 9   program, speech and language and occupational therapy.”     IHO

10   Opinion at 5, J.A. 677.   The SRO disagreed.    He concluded that

11   the evidence only indicated that R.K. needed a small, structured

12   setting, which he found to be satisfied by a 6:1:1 placement.        He

13   also found that she did not necessarily need ABA because some

14   evaluations did not specify a teaching method.     The SRO also

15   cited extensive testimony from Leonilda Perez, who would have

16   been R.K.’s teacher at the proposed placement, about techniques

17   she used in the classroom.   The SRO noted that Perez conducted at

18   least 25 minutes of daily 1:1 ABA instruction, including manding,

19   with each student.   The SRO emphasized this testimony in

20   concluding that the placement was appropriate, finding “the

21   student would have received individual instruction and that

22   instruction would have been ABA-based.”     SRO Opinion at 19.

23        The SRO’s reliance on Perez’s testimony was inappropriate.

24   R.K.’s parents had no knowledge or guarantee from the IEP that
                                      53
 1   R.K. would have received a teacher who conducted daily 1:1 ABA

 2   sessions with each student.    The rest of the SRO’s decision on

 3   this issue was based on permissible evidence.    However, we agree

 4   with the magistrate judge that the SRO’s conclusion is contrary

 5   to the overwhelming weight of the evidence.   R.K., 2011 WL

 6   1131492, at *23.   As described in detail by Judge Mann, the

 7   majority of the reports recommended 1:1 instruction.   Even those

 8   reports that did not specifically recommend a 1:1 ratio

 9   emphasized that R.K. needed a high level of support.   Further,

10   almost all of the reports found that R.K. needed continued ABA

11   therapy.   The fact that some reports did not mention a specific

12   teaching methodology does not negate the clear consensus that

13   R.K. required ABA support.    However, the plan proposed in her IEP

14   offered her a 6:1:1 classroom with no dedicated aide and no

15   guarantee of ABA therapy or any meaningful 1:1 support.   Because

16   the SRO’s conclusion was against the weight of the evidence and

17   thus flawed, deference to it is not warranted.   But having

18   reviewed the record, we conclude that the IHO’s decision was

19   sufficiently supported, and we therefore defer to the IHO’s

20   conclusion that the IEP was not reasonably calculated to create

21   educational benefit for R.K.

22        2. Procedural Violations

23        Our conclusion that the IEP was inadequate is reinforced by

24   the CSE’s failure to create an FBA or BIP for R.K.   As noted
                                      54
 1   earlier, failure to conduct an FBA is a particularly serious

 2   procedural violation for a student who has significant

 3   interfering behaviors.   The IEP itself notes that R.K. exhibited

 4   “self-stimulatory behaviors which interfere with her ability to

 5   attend to tasks and to socially interact with others.”    IEP at 3,

 6   J.A. 610.   All of the reports considered by the CSE agreed that

 7   R.K. had behavioral difficulties.     See R.K., 2011 WL 1131492, at

 8   *18 (summarizing record evidence of R.K.’s interfering

 9   behaviors).    The SRO concluded that an FBA was not required

10   because R.K.’s behaviors were “not unusual for a student with

11   autism” and because R.K.’s preschool teacher did not think an FBA

12   was necessary.   SRO Opinion at 22, J.A. 765.   However, New York

13   regulations mandate that an FBA be developed when a student has

14   behaviors that impede her learning.    N.Y. Comp. Codes R. & Regs.

15   tit. 8, § 200.4(b)(1)(v).   Record evidence that R.K. did have

16   such behaviors was clear and uncontradicted.    The SRO’s reliance

17   on Perez’s retrospective testimony that she would have created a

18   BIP once R.K. was in her class was not appropriate and must be

19   disregarded.   Accordingly, we conclude that the failure to create

20   an FBA compounded the IEP’s substantive deficiency, resulting in

21   the denial of a FAPE.    Our conclusion that the IEP was inadequate

22   is buttressed by the CSE’s failure to include statutorily

23   mandated speech and language therapy and parent training in the

24   IEP.
                                      55
 1          We further affirm the district court’s conclusion that BAC

 2   was an appropriate school placement and that the equities favor

 3   reimbursement.   We conclude that the partial reduction of the

 4   award by the IHO for perceived inadequacies in the BAC program

 5   was erroneous for the reasons cited by Judge Mann.   R.K., 2011 WL

 6   1131492, at *26-27.   Accordingly, we affirm the judgment of the

 7   district court awarding full reimbursement.

 8

 9   C. E.Z.-L., No. 11-655-cv

10          E.Z.-L.’s parents allege that E.Z.-L. was denied a FAPE

11   because (1) the Department failed to conduct an FBA, (2) the IEP

12   did not include parent training, and (3) the proposed placement

13   was inadequate because that school did not provide its students

14   with the appropriate occupational therapy.    The district court

15   affirmed the SRO and found that E.Z.-L. was not denied a FAPE.

16   We agree.

17          1. Substantive Adequacy

18          We conclude that the Department’s proposed placement was

19   substantively adequate.   Unlike the other two cases before us,

20   E.Z.-L.’s parents do not seriously challenge the substance of the

21   IEP.   Instead, they argue that the written IEP would not have

22   been effectively implemented at P.S. M094 because “defendant’s

23   own internal documents show that a large percentage of students

24   at P.S. M094 have been and continue to be ‘underserved’ for
                                      56
 1   related services, particularly as to occupational therapy.”

 2   Appellant’s Br. at 44-45.   Our evaluation must focus on the

 3   written plan offered to the parents, however.    Speculation that

 4   the school district will not adequately adhere to the IEP is not

 5   an appropriate basis for unilateral placement.   A suggestion that

 6   some students are underserved cannot overcome the “particularly

 7   important” deference that we afford the SRO’s assessment of the

 8   plan’s substantive adequacy.    See Cerra, 427 F.3d at 195.    An IEP

 9   need only be reasonably calculated to provide likely progress,

10   id., and after reviewing the record, we conclude that the SRO had

11   ample evidence to find that the IEP met this standard.

12        E.Z.-L.’s parents also challenge the IEP’s lack of a

13   transition plan, but they have not identified any legal

14   requirement that an IEP contain a transition plan, nor have they

15   articulated why the absence of such a plan was so significant as

16   to deny E.Z.-L. a FAPE.

17        2. Procedural Violations

18        With regard to the FBA, the SRO concluded that there was no

19   violation because the CSE, relying in part on testimony from

20   Rebecca Starr, E.Z.-L.’s teacher, found that her behavior “does

21   not seriously interfere with instruction.”   IEP at 4, J.A. 556.

22   This is not a case where an FBA was required but not conducted.

23   Instead, the CSE considered the evidence of E.Z.-L.’s behaviors

24   and determined that they were not severe enough to warrant an
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 1   FBA.   The SRO concluded that the CSE’s decision was appropriate

 2   based on the evidence.   Because the record adequately supports

 3   this conclusion, we defer to the SRO.

 4          With regard to the absence of parent training in the IEP,

 5   the SRO found no violation because training services were

 6   available at the proposed placement.      Although the SRO’s use of

 7   retrospective evidence was inappropriate, we find that this

 8   violation on its own does not establish denial of a FAPE.

 9          Accordingly, we agree with the district court that E.Z.-L.

10   was not denied a FAPE for the 2008-09 school year.     The judgment

11   of the district court is affirmed.

12

13                                CONCLUSION

14          We reiterate our principal holding that courts must evaluate

15   the adequacy of an IEP prospectively as of the time of the

16   parents’ placement decision and may not consider “retrospective

17   testimony” regarding services not listed in the IEP.     However, we

18   reject a rigid “four-corners rule” that would prevent a court

19   from considering evidence explicating the written terms of the

20   IEP.

21          In light of this holding, and for the other reasons stated

22   above, we AFFIRM the judgment of the district court in R.K. v.

23   N.Y.C. Dep’t of Educ., No. 11-1474-cv and E.Z.L. v. N.Y.C. Dep’t

24   of Educ., No. 11-655-cv, and REVERSE the judgment of the district

25   court in R.E. v. N.Y.C. Dep’t of Educ., No. 11-1266-cv.
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