     12-2720-cv
     M.W. v. N.Y.C. Dep’t of Educ.
 1
 2                      UNITED STATES COURT OF APPEALS
 3
 4                              FOR THE SECOND CIRCUIT
 5
 6
 7
 8                              August Term, 2012
 9
10     (Argued: March 13, 2013                   Decided: July 29, 2013)
11
12                            Docket No. 12-2720-cv
13
14
15                     M.W., BY HIS PARENTS, S.W. AND E.W.,
16
17                                                    Plaintiffs-Appellants,
18
19                                      –v.–
20
21                     NEW YORK CITY DEPARTMENT OF EDUCATION,
22
23                                                       Defendant-Appellee.
24
25
26
27   Before:
28                  WALKER, WESLEY, DRONEY, Circuit Judges.
29
30        Appeal from the order of the United States District
31   Court for the Eastern District of New York (Weinstein, J.),
32   entered on June 15, 2012, granting summary judgment for
33   Defendant-Appellee New York City Department of Education and
34   denying tuition reimbursement for Plaintiffs-Appellants
35   after their unilateral placement of their child into a
36   private school.
37
38   AFFIRMED
39
40
41
42

                                     Page 1 of   37
 1               GARY S. MAYERSON (Tracey Spencer Walsh, Maria C.
 2                    McGinley, on the brief), Mayerson &
 3                    Associates, New York, NY, for Plaintiffs-
 4                    Appellants.
 5
 6               SUZANNE K. COLT, (Pamela Seider Dolgow, John Buhta,
 7                     Gail Eckstein, G. Christopher Harris, on the
 8                     brief), for Michael A. Cardozo, Corporation
 9                     Counsel of the City of New York, New York City
10                     Law Department, New York, NY, for Defendant-
11                     Appellee.
12
13
14   WESLEY, Circuit Judge:

15       S.W. (“Dad”) and E.W. (“Mom”) enrolled M.W., their

16   autistic child, in a private school after concluding that

17   the New York City Department of Education’s (“DOE”)

18   individualized education program failed to provide him with

19   a free and appropriate public education as required by the

20   Individuals with Disabilities Education Improvement Act

21   (“IDEA”), 20 U.S.C. §§ 1400 et seq.         Subsequently, the

22   Parents filed a due-process complaint against the DOE

23   seeking tuition reimbursement.     After twelve hearing days,

24   an impartial hearing officer granted them that relief.          The

25   DOE appealed to a state review officer, who reversed that

26   decision.    The Parents then filed a civil action in United

27   States District Court for the Eastern District of New York

28   (Weinstein, J.), which affirmed the order denying tuition



                                Page 2 of   37
 1   reimbursement.   The Parents appeal principally contending

 2   that the individualized education program’s integrated co-

 3   teaching services violated the IDEA’s least restrictive

 4   environment mandate by placing their child in a classroom

 5   with as many as twelve other students who also had

 6   individualized education programs.       We AFFIRM.

 7                               Background

 8   I.   The Legal Framework

 9        The IDEA requires New York state to “provide disabled

10   children with a free and appropriate public education

11   (‘FAPE’).”   R.E. v. N.Y. City Dep’t of Educ., 694 F.3d 167,

12   174-75 (2d Cir. 2012) (citation omitted).      Accordingly, the

13   DOE, through a Committee on Special Education (“CSE”), must

14   produce, in writing, an individualized education program

15   (“IEP”), see 20 U.S.C. § 1414(d), that “describes the

16   specially designed instruction and services that will enable

17   the child to meet” stated educational objectives and is

18   reasonably calculated to give educational benefits to the

19   child.   R.E., 694 F.3d at 175 (internal quotation marks and

20   citation omitted).   Should a parent believe that the school

21   district breached these IDEA duties by failing to provide

22   their disabled child a FAPE, the parent may unilaterally

                                Page 3 of   37
 1   place their child in a private school at their own financial

 2   risk and seek tuition reimbursement.       See Florence Cnty.

 3   Sch. Dist. Four v. Carter, 510 U.S. 7, 9-10, 16 (1993).

 4        To begin the tuition-reimbursement process, a parent

 5   must first file a due-process complaint which triggers an

 6   administrative-review process that begins with a hearing in

 7   front of an impartial hearing officer (“IHO”).       See 20

 8   U.S.C. § 1415(b)(6), (f); N.Y. Educ. L. § 4404(1).      The

 9   three-pronged Burlington/Carter test, as construed by New

10   York Education Law § 4404(1)(c), governs that hearing: (1)

11   the DOE must establish that the student’s IEP actually

12   provided a FAPE; should the DOE fail to meet that burden,

13   the parents are entitled to reimbursement1 if (2) they

          1
           The Parents invite us to expressly hold that the DOE
     carries their New York Education Law § 4404(1)(c) burden all the
     way into federal court, which would require us to decide whether
     the IDEA preempts that law. We do not need to address that
     argument “[b]ecause the State Review Officer[] in the case[] at
     bar concluded that the IEP[ was] proper, and the courts are bound
     to exhibit deference to that decision[;] the burden of
     demonstrating that the respective Review Officers erred is
     properly understood to fall on plaintiffs . . . , which party
     bore the burden of persuasion in the state review scheme is only
     relevant if the evidence was in equipose.” M.H. v. NYC Dep’t of
     Educ., 685 F.3d 217, 225 n.3 (2d Cir. 2012). Here, the evidence
     is not in equipose. Moreover, it “is incumbent upon the Parents
     to bring to the Court’s attention any procedural or substantive
     flaws and explain why they allegedly warrant reversal.” W.T. &
     K.T. ex rel. J.T. v. Bd. of Educ. of Sch. Dist. of N.Y., 716 F.
     Supp. 2d 270, 287 (S.D.N.Y. 2010).


                               Page 4 of   37
 1   establish that their unilateral placement was appropriate

 2   and (3) the equities favor them.      See R.E., 694 F.3d at 184-

 3   85 (citing Carter, 510 U.S. at 7; Sch. Comm. of Town of

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

 5   review officer (“SRO”) evaluates appeals from an IHO’s

 6   decision, see N.Y. Educ. Law § 4404(2), and either party may

 7   seek review of an SRO decision by bringing a civil action in

 8   federal court, see 20 U.S.C. § 1415(i)(2)(A).

 9   II. Statement of Facts

10       A.      M.W.

11       M.W. is an autistic boy with Pervasive Developmental

12   Disorder, Attention Deficit Hyperactivity Disorder, certain

13   speech and language disorders, and fine and gross motor

14   deficits.    Despite these setbacks, M.W. has an average IQ;

15   he is bright and can learn.    His autism and developmental

16   disorders, however, present behavioral and social-emotional

17   problems that have resulted in academic under-performance

18   and have required speech, occupational, and physical

19   therapies.    M.W. also requires direct, hands-on supervision

20   during the school day from a paraprofessional, who helps him

21   stay focused when his attention strays and calm in the event

22   of a behavioral crisis.

                               Page 5 of   37
 1        After the Parents rejected the IEP for the 2009-2010

 2   school year, M.W. attended Luria, a Montessori school, where

 3   he had the support of his full-time paraprofessional in a

 4   classroom designed for typically developing students.      On

 5   January 30, 2010, Mom sent an email to Luria indicating a

 6   desire to re-enroll M.W. for the 2010-2011 school year

 7   before the CSE developed the contested IEP subject to this

 8   appeal.   Shortly thereafter, Mom submitted an application to

 9   Luria which included a tuition contract and down payment to

10   hold M.W.’s spot.

11        Luria teachers do not use formal assessments to track

12   progress and rely on “a lot [of] note-taking and

13   observation” to track the child’s progress.     See Tr. 937.

14   Though M.W. progressed socially during the 2009-2010 school

15   year, he continued to have “a lot of behavioral issues that

16   [we]re getting in the way of his progress” through the 2010-

17   2011 school year.   Id. at 921.    When these behavioral issues

18   disrupted the class, his paraprofessional removed him from

19   the classroom to work with him outside, sometimes on the

20   floor.2   Id. at 945-50.


          2
             The record does not clearly set out the amount of time
     M.W. spent outside the classroom during both the 2009-2010 school
     year and the 2010-2011 school year. For the 2009-2010 school

                                Page 6 of   37
 1        B.     M.W.’s Individualized Education Program

 2         On June 10, 2010, the CSE convened to develop M.W.’s

 3   2010-2011 IEP.    The following individuals constituted the

 4   CSE: (1) Mom; (2) Sara Malasky, M.W.’s general education

 5   teacher, who participated via telephone; (3) Chanie Graus, a

 6   school psychologist who acted as a school-district

 7   representative; (4) a special education teacher; and (5) a

 8   parent representative.    M.W. was seven years old, and the

 9   IEP was for his second-grade year, 2010-2011.

10        The IEP described M.W. as a seven-year-old autistic

11   child of average intelligence with Pervasive Developmental

12   Disorder.    Despite his disorders, the IEP recognized that

13   M.W. had “made progress . . . in the area of peer

14   interactions” and, during the previous year at Luria, M.W.

15   had made friends and was “able to participate in a


     year, M.W.’s Floor Time therapist worked with him outside the
     classroom. When sent to observe M.W. before the CSE meeting that
     produced the challenged IEP, the DOE representative observed M.W.
     on the hallway floor having an emotional breakdown during his
     Floor Time therapy. Around September of the 2010-2011 school
     year, M.W. developed Tourette Syndrome which caused a frequently
     disruptive tic. For that year, M.W. spent a significant amount
     of time outside of the classroom to work one-on-one with his
     paraprofessional as needed to control his disruptions. See Tr.
     816, 824-25, 845-46, 854, 939, 945-50. Additionally, M.W.’s
     teacher and paraprofessional would plan ahead to have him removed
     from the classroom for instruction, sometimes with another
     student. Tr. 808, 923.

                               Page 7 of   37
 1   continuous flow of back and forth interactions” with his

 2   peers.   Sealed App’x 1847.   The IEP, however, also noted

 3   that M.W. had significant self-regulation difficulties,

 4   became frustrated easily, and struggled to calm himself down

 5   in the event of a behavioral crisis.       Id.

 6        The IEP recommended placement in a general education

 7   environment with integrated co-teaching (“ICT”) services

 8   with a 12:1 staffing ratio, five days a week, for a ten-

 9   month school year.3    The IEP also provided M.W. with a full-

10   time behavioral management paraprofessional to give him one-

11   on-one help self-regulating in times of behavioral crisis,

12   and these other related services:

13       Service                Sessions x Week       Duration   Students
14   1   Counseling             1 x week              30 mins.   3
15   2   Occupational           3 x week              30 mins.   1
         Therapy
16   3   Physical Therapy       2 x week              30 mins.   1
17   4   Speech/Language        2 x week              30 mins.   1
         Therapy




          3
             The 12:1 staffing ratio means that one special education
     teacher would provide ICT services for up to twelve IEP students,
     the statutory maximum, in a classroom that also included
     typically developing students, a general education curriculum,
     and a general education teacher. For a detailed discussion of
     ICT services, see Discussion, infra, at XX.

                               Page 8 of   37
 1   5   Speech/Language         1 x week          30 mins.   2
         Therapy

 2   Sealed App’x 1860.

 3       Finally, the IEP concluded that M.W.’s “behavior

 4   seriously interfere[d] with instruction and require[d]

 5   additional adult support.”     Id. 1847.    Based on those

 6   conclusions, the IEP required a behavioral intervention plan

 7   (“BIP”), which was incorporated in the IEP.       Id. at 1860.

 8   The BIP identified “emotional meltdowns,” “poor self-

 9   regulation,” and “poor attention” as the behavioral

10   difficulties that impaired M.W.’s academic progress and

11   recommended a reward system, praise and encouragement, and

12   positive modeling as strategies to modify those behaviors.

13   Id. at 1862.    The goal was to teach M.W. to become more

14   attentive and focused and to better control himself when

15   frustrated.    Id.   To implement those strategies, M.W.’s

16   teacher, paraprofessional, and the Parents were to

17   collaborate.   The BIP did not quantify data relating to the

18   frequency of M.W.’s “meltdowns” because Luria did not

19   provide a functional behavior assessment (“FBA”), and the

20   DOE did not request or develop one.

21       On July 1, 2010, the DOE sent a letter to M.W.’s

22   Parents that classified M.W. as an autistic student and

                                Page 9 of   37
 1   recommended an ICT classroom4 at P.S. 197, the Ocean School,

 2   with the related services that the IEP recommended.      Mom

 3   visited the school, decided to keep M.W. at Luria, and

 4   immediately began the administrative-review process seeking

 5   reimbursement for the 2010-2011 school year.

 6        C.   Administrative Review

 7        On July 8, 2010, the Parents filed their demand for due

 8   process and requested a hearing.      The Parents subsequently

 9   amended their demands on September 29, 2010.      On May 2,

10   2011, the Parents submitted their closing brief after 12

11   hearing days that took place over the entire school year.

12   In relevant parts, the Parents argued that the IEP would

13   have denied M.W. a FAPE because the IEP Team created a BIP

14   without the benefit of an FBA and the IEP failed to provide

15   parent counseling and training as a related service.      The

16   Parents also argued that the P.S. 197 placement was

17   defective because the recommended 10-month program exposed

18


          4
             The letter actually recommended Collaborative Team
     Teaching (“CTT”). CTT is equivalent to ICT. See
     http://www.p12.nysed.gov/specialed/publications/policy/schoolagec
     ontinuum.html (“New York City (NYC) has used the term
     ‘collaborative team teaching’ (CTT) to identify a service that
     meets the regulatory definition of integrated co-teaching
     services.”). In any event, the parties do not mention or argue
     over this distinction.

                              Page 10 of   37
 1   M.W. to regression risks.    Finally, the Parents argued that

 2   the IEP assigned M.W. to an overly restrictive environment.

 3       The IHO expressly agreed with the Parents regarding the

 4   BIP, the omission of parental counseling, and the inadequacy

 5   of a 10-month program.    Though the IHO mentioned the least

 6   restrictive environment requirement in passing, she made no

 7   explicit findings as to whether a general education

 8   environment with ICT services would be too restrictive.5

 9   See Sealed App’x 2155.    The IHO found Luria to be an

10   appropriate placement and that the equities favored the

11   Parents.    Accordingly, the IHO ordered that the Parents be

12   reimbursed, and the DOE sought review by a SRO.    The SRO

13   reversed the IHO’s determinations and denied tuition

14   reimbursement.    Relying heavily on the SRO’s analysis, the

15   district court affirmed that decision, and the Parents

16   appealed.

17

18


         5
             The IHO found that the ICT classroom, generally, was
     inappropriate because the class size was too large and the
     decision to make that placement was unsupported by documentary
     evidence. IHO Decision at 27. The IHO also summarily concluded
     that ICT service was an inappropriate support system for M.W.’s
     developmental problems. Id. Those criticisms, however, were not
     tied to a restrictiveness analysis and offer no insight into
     Parents’ least restrictive environment arguments on appeal.

                              Page 11 of   37
 1                               Discussion

 2   I.   Standard of Review and Burdens of Proof

 3        We undergo a circumscribed de novo review of a district

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

 5   because the “responsibility for determining whether a

 6   challenged IEP will provide a child with [a FAPE] rests in

 7   the first instance with administrative hearing and review

 8   officers.”   M.H. v. New York City Dep’t of Educ., 685 F.3d

 9   217, 240 (2d Cir. 2012).     Summary judgment in the IDEA

10   context, therefore, is only a “pragmatic procedural

11   mechanism for reviewing administrative decisions.”     T.P. ex

12   rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247,

13   252 (2d Cir. 2009) (per curiam) (internal quotation marks

14   and citation omitted).     This review “‘requires a more

15   critical appraisal of the agency determination than clear-

16   error review’” but “‘falls well short of complete de novo

17   review.’” M.H., 685 F.3d at 244 (quoting Lenn v. Portland

18   Sch. Comm., 998 F.2d 1083, 1086-87 (1st Cir. 1993) (internal

19   citations omitted)).     Accordingly, our de novo review only

20   seeks to independently verify that the administrative record

21   supports the district court’s determination that a student’s

22   IEP was adequate.   See R.E., 694 F.3d at 184.


                               Page 12 of   37
 1       In undertaking this independent review, we are further

 2   restrained by our lack of specialized knowledge and

 3   educational expertise; “we must defer to the administrative

 4   decision [particularly where] the state officer’s review

 5   ‘has been thorough and careful.’”      See id. (quoting Walczak

 6   v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir.

 7   1998)).   While we will not “rubber stamp” administrative

 8   decisions, we remain equally mindful that we cannot

 9   substitute our own “notions of sound educational policy for

10   those of the school authorities” under review.      M.H., 685

11   F.3d at 240.    Furthermore, when, as here, “an IHO and SRO

12   reach conflicting conclusions, ‘[w]e defer to the final

13   decision of the state authorities,’ that is, the SRO’s

14   decision.”     R.E., 694 F.3d at 189 (quoting A.C. ex rel. M.C.

15   v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165,

16   171 (2d Cir. 2009)).

17       Recently, we parsed the amount of deference an SRO’s

18   determination deserves and concluded that it “depends on the

19   quality of that opinion.”     See R.E., 694 F.3d at 189.

20   “Reviewing courts must look to the factors that ‘normally

21   determine whether any particular judgment is persuasive, for

22   example, whether the decision being reviewed is well-

23   reasoned, and whether it was based on substantially greater

                               Page 13 of   37
 1   familiarity with the evidence and the witnesses than the

 2   reviewing court.’”   Id. at 189 (quoting M.H., 685 F.3d at

 3   244).   Where an SRO has clearly demonstrated a better

 4   command of the record and supported her conclusions through

 5   better legal and factual analysis than an IHO, we will have

 6   little difficulty deferring to the SRO’s opinion.      See id.

 7   Accordingly, an appellant seeking to have a reviewing court

 8   credit an IHO’s determination over an SRO’s determination

 9   would benefit from calling our attention to an SRO’s

10   specific errors in law, fact, or reasoning.6

11   II. Procedural Violations

12       “In determining whether an IEP complies with the IDEA,

13   courts make a two-part inquiry that is, first, procedural,

14   and second, substantive.”     Id. at 189-90.   Procedural

15   violations warrant tuition reimbursement only if they

16   “‘impeded the child’s right to a [FAPE],’ ‘significantly

17   impeded the parents’ opportunity to participate in the

18   decision[-]making process,’ or ‘caused a deprivation of

19   educational benefits.’”     Id. at 190 (quoting 20 U.S.C. §

20   1415(f)(3)(E)(ii); A.C., 553 F.3d at 172).     That is, parents


         6
           By attempting to undercut the deference owed to the SRO
     based on her alleged personal inexperience, Parents’ counsel
     moved us to (re)articulate these guiding principles. See Compl.
     at 8, ¶ 23.

                               Page 14 of   37
 1   must articulate how a procedural violation resulted in the

 2   IEP’s substantive inadequacy or affected the decision-making

 3   process.    Of course, “[m]ultiple procedural violations may

 4   cumulatively result in the denial of a FAPE even if the

 5   violations considered individually do not.”         Id.

 6       Here, the Parents allege that the DOE committed two

 7   procedural violations: it failed to undertake an FBA in

 8   developing the BIP and it failed to include parental

 9   training and counseling in the IEP.         The Parents also assert

10   that the SRO impermissibly relied on retrospective testimony

11   to justify those omissions.

12       A.      Behavioral Intervention Plan

13       An FBA provides an “identification of [a disabled

14   student’s] problem behavior, the definition of the behavior

15   in concrete terms, the identification of the contextual

16   factors that contribute to the behavior . . . and the

17   formulation of a hypothesis regarding the general conditions

18   under which a behavior usually occurs and probable

19   consequences that serve to maintain it.”         N.Y. Comp. Codes

20   R. & Regs. tit. 8 § 200.1(r)).     “New York regulations

21   require the department to conduct an FBA for a student

22   ‘whose behavior impedes his or her learning or that of

23   others.’”    See R.E., 694 F.3d at 190 (quoting N.Y. Comp.

                               Page 15 of   37
 1   Codes R. & Regs. tit. 8 § 200.4(b)(1)(v)). Those

 2   regulations, however, only require an FBA “as necessary to

 3   ascertain the physical, mental, behavioral and emotional

 4   factors which contribute to [a] suspected disabilit[y].”

 5   N.Y. Comp. Codes R. & Regs. tit. 8 § 200.4(b)(1)(v)

 6   (emphasis added).

 7          Though the “IDEA incorporates some but not all state

 8   law concerning special education,” these regulations do not

 9   raise the IDEA bar by rendering IEP’s developed without an

10   FBA legally inadequate.    See A.C., 553 F.3d at 172 n.1

11   (quoting Bay Shore Union Free Sch. Dist. v. Kain ex rel.

12   Kain, 485 F.3d 730, 734 (2d Cir. 2007)).     The IDEA only

13   requires a school district to “consider the use of positive

14   behavioral interventions and supports, and other strategies”

15   when a child’s behavior impedes learning.      See id. at 172

16   (quoting 20 U.S.C. § 1414(d)(3)(B)(i)) (internal quotation

17   marks omitted).    An FBA omission does, however, cause us to

18   “take particular care to ensure that the IEP adequately

19   addresses the child’s problem behaviors.”      R.E., 694 F.3d at

20   190.    Two cases chart our course.    See R.E., 694 F.3d at

21   192-95; A.C., 553 F.3d at 172-73.

22          In A.C., we concluded that the failure to conduct an

23   FBA did not make an IEP legally inadequate because it noted


                               Page 16 of   37
 1   (1) the student’s attention problems; (2) the student’s need

 2   for a personal aide to help the student focus during class;

 3   and (3) the student’s need for psychiatric and psychological

 4   services.    A.C., 553 F.3d at 172.    In R.E. we considered the

 5   effect of an FBA omission for three separate students.       See

 6   R.E., 694 F.3d at 192-95.    For one student, we concluded

 7   that an FBA omission did not deny a FAPE where (1) the CSE

 8   reviewed documents regarding the student’s behavior, and (2)

 9   the IEP provided strategies to address those behaviors,

10   “including the use of a 1:1 aide to help him focus.”      Id. at

11   193.    Moreover, we have decided that whether an IEP

12   adequately addresses a disabled student’s behaviors and

13   whether strategies for dealing with those behaviors are

14   appropriate are “precisely the type of issue[s] upon which

15   the IDEA requires deference to the expertise of the

16   administrative officers.”    A.C., 553 F.3d at 172 (quoting

17   Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 382 (2d

18   Cir. 2003)) (internal quotation marks omitted).

19          Failure to conduct an FBA, therefore, does not render

20   an IEP legally inadequate under the IDEA so long as the IEP

21   adequately identifies a student’s behavioral impediments and

22   implements strategies to address that behavior.      See, e.g.,

23   id.    Where the IEP actually includes a BIP, parents should


                               Page 17 of   37
 1   at least suggest how the lack of an FBA resulted in the

 2   BIP’s inadequacy or prevented meaningful decision-making.

 3   See R.E. at 189-90.     For example, parents could argue that

 4   an FBA would have exposed a BIP’s obsolete assessment of the

 5   student’s behavioral problems or that the recommended

 6   behavior-modification strategies failed to accommodate the

 7   frequency or intensity of the student’s behavioral problems.

 8    Here, however, the Parents summarily argue that failure to

 9   conduct an FBA made the IEP legally defective; the record

10   belies those assertions.

11       As an initial matter, the IHO’s FBA and BIP analysis

12   consisted of a single sentence without citation to the

13   administrative record: “Lastly, I find there was no FBA

14   developed and the BIP was developed without parent or

15   teacher involvement and I find the BIP was not appropriate.”

16   IHO Decision at 28.     By contrast, the SRO provided an in-

17   depth, four-page discussion of the issue replete with legal

18   and factual analysis.     See SRO Decision at 17-20.   The SRO

19   found that the IHO’s finding was unsubstantiated by a record

20   which clearly established M.W.’s behavioral problems,

21   identified strategies to manage those problems, and

22   recommended a collaborative intervention plan between the

23   Parents, teacher, and paraprofessional.


                               Page 18 of   37
 1       The SRO concluded that the BIP accurately described the

 2   behaviors that interfered with learning: “emotional

 3   meltdowns,” poor self-regulation, and poor attention.     In

 4   support of her analysis, the SRO relied upon, inter alia,

 5   the Luria progress reports, the Floor Time therapist’s

 6   report, and Graus’s in-class observations of M.W., all of

 7   which describe those behavioral difficulties in detail.        See

 8   SRO Decision at 19 (citing Dist. Ex. 5-12).    The Parents

 9   confirm the accuracy of those descriptions and do not

10   contend that the IEP misidentified or overlooked their son’s

11   behavioral issues.   See Parents’ Local Rule 56.1 Statement

12   of Material Facts ¶ 5.    Accordingly, we agree with the SRO’s

13   determination that the BIP adequately described M.W.’s

14   behavioral impediments.

15       The SRO also concluded that the BIP was consistent with

16   the information available to the CSE and that the

17   intervention services were adequate because they provided a

18   broad, collaborative approach to implement specific

19   strategies to modify those behaviors on a daily, one-on-one

20   basis.   The Parents do not contend that M.W. needed more or

21   less attention.   Additionally, the BIP recommended that M.W.

22   be provided with a reward system, praise, encouragement, and

23   positive modeling to learn to adjust his behavior within a


                               Page 19 of   37
 1   collaborative support system between parent, teacher, and

 2   paraprofessional.    The Parents do not attack those

 3   strategies.    The Parents have simply failed to articulate a

 4   single reason why an FBA was required for a legally valid

 5   BIP.

 6          We therefore affirm the SRO’s determination that the

 7   “hearing record does not support the impartial hearing

 8   officer’s determination that the lack of an FBA rose to the

 9   level of denying the student a FAPE where the IEP addressed

10   behavioral needs.” SRO Decision at 20.      As in R.E., (1) the

11   CSE reviewed documents regarding the student’s behavior, and

12   (2) the IEP provided strategies to address those behaviors,

13   including the use of a paraprofessional.      R.E., 694 F.3d at

14   193.

15          B.   Parental Counseling

16          Next, the Parents argue that the IEP’s failure to

17   include parental counseling denied M.W. a FAPE.      To enable

18   parents to “perform appropriate follow-up intervention

19   activities at home,” New York requires that an IEP provide

20   parents of autistic students training and counseling.      See

21   N.Y. Comp. Codes R. & Regs. tit. 8 § 200.13(d).     “Parent

22   counseling and training means assisting parents in

23   understanding the special needs of their child; providing


                               Page 20 of   37
 1   parents with information about child development; and

 2   helping parents to acquire the necessary skills that will

 3   allow them to support the implementation of their child’s

 4   individualized education program.”     Id. § 200.1(kk)

 5   (emphasis omitted).   The regulations contemplate parental

 6   counseling for the educational benefit of the disabled

 7   student by ensuring that the parents are equipped with the

 8   skills and knowledge necessary to continue and implement the

 9   student’s IEP at home.

10       We have previously described counseling omissions as

11   procedural violations “less serious than the omission of an

12   FBA” because “the presence or absence of a parent-counseling

13   provision does not necessarily have a direct effect on the

14   substantive adequacy of the plan.”     R.E., 694 F.3d at 191.

15   “Moreover, because school districts are required . . . to

16   provide parent counseling, they remain accountable for their

17   failure to do so no matter the contents of the IEP.”     Id.

18   (citing N.Y. Comp. Codes R. & Regs. tit. 8 § 200.13(d)).

19   If a parent wants counseling for her own sake, New York

20   provides her a remedy.   Accordingly, failure to provide

21   counseling ordinarily does not result in a FAPE denial or

22   warrant tuition reimbursement.   See id.

23


                              Page 21 of   37
 1         Here, the IHO again summarily decided that parent

 2   counseling and training was required and that parent

 3   workshops that would have been provided to the Parents by

 4   the Ocean School would not give the Parents the tools

 5   necessary to perform follow-up at home.     IHO Decision at 27-

 6   28.   The IHO, however, did not explain those conclusions.

 7   The SRO concluded that the counseling omission did not deny

 8   M.W. a FAPE because Mom was a certified special education

 9   teacher who had received, through her own initiative,

10   training and counseling in the therapies that M.W. had

11   previously used, and because the public school assigned to

12   M.W. provided training and counseling.     The SRO also noted

13   that the BIP required collaboration between

14   paraprofessional, the Parents, and teacher in order to

15   implement and support the recommended behavior-modification

16   strategies.

17         We defer to that analysis.   The Parents have not

18   persuaded us that the parental counseling omission would

19   deprive M.W. of FAPE.   The SRO’s analysis noted that Mom’s

20   experience and the supports in the BIP provide adequate

21   assurance that M.W.’s developmental plan and education would

22   continue at home.

23



                              Page 22 of   37
 1

 2       C.    Retrospective Justifications

 3       The Parents assert that the SRO routinely relied upon

 4   impermissible retrospective justifications to fill in the

 5   IEP’s inadequacies.      In R.E., we held “that retrospective

 6   testimony that the school district would have provided

 7   additional services beyond those listed in the IEP may not

 8   be considered in a Burlington/Carter proceeding.”      R.E., 694

 9   F.3d at 186. (emphasis added).     However, the case also

10   expressly “reject[ed] . . . a rigid ‘four corners’ rule

11   prohibiting testimony that goes beyond the face of the IEP.

12   While testimony that materially alters the written plan is

13   not permitted, testimony may be received that explains or

14   justifies the services listed in the IEP.”      Id. (emphasis

15   added).   For example:

16             [I]f an IEP states that a specific
17             teaching method will be used to instruct a
18             student, the school district may introduce
19             testimony at the subsequent hearing to
20             describe that teaching method and explain
21             why it was appropriate for the student.
22             The district, however, may not introduce
23             testimony that a different teaching
24             method, not mentioned in the IEP, would
25             have been used.
26
27   Id. at 186-87.

28       Here, Parents contend that the SRO impermissibly

29   credited retrospective testimony that justified the FBA

                                Page 23 of   37
 1   omission based on the BIP’s broad, collaborative support

 2   strategies and how those strategies would change as the

 3   student’s needs changed.     That argument, however, misses the

 4   SRO’s central analysis: the BIP was developed with specific

 5   goals, strategies, and supports, but the collaborative

 6   approach ensured that implementation could change as M.W.’s

 7   needs changed and ensured that behavioral modification

 8   strategies would continue at home.     That seems especially

 9   appropriate when a student’s autism presents unique

10   challenges each day.   Accordingly, the analysis did not rely

11   on retrospective justifications.     The DOE admits that there

12   was no FBA, and the SRO did not rely upon a promise not

13   contained in the IEP to address the omission.

14       The Parents also assert that reliance on Mom’s

15   educational background and the placement school’s counseling

16   programs retrospectively justifies the omission of parental

17   counseling.   But, as we have just stated, when the IEP

18   suffers from a conceded procedural infirmity, we first

19   review whether that procedural violation substantively

20   deprived the student of a FAPE before determining whether

21   the SRO corrected the substantive failure by impermissibly

22   crediting future promises.     In making her determination, the

23   SRO did not conclude that the IEP’s omission of parental


                             Page 24 of   37
 1   counseling denied M.W. of a FAPE and that the omission was

 2   made sound by promises not contained in the IEP.        Instead,

 3   the SRO concluded that the parental counseling omission did

 4   not deny M.W. a FAPE in the first instance because of the

 5   BIP’s collaborative approach to behavior modification, Mom’s

 6   education, and the school workshops.        The SRO concluded that

 7   the Parents were equipped to manage M.W.’s needs without New

 8   York’s mandated counseling.     Accordingly, the SRO did not

 9   rely upon impermissible retrospection and we defer to her

10   analysis.

11   III.        Substantive Adequacy and Least Restrictive

12               Environment

13          The Parents also challenge the substantive adequacy of

14   the IEP.     “Substantive inadequacy automatically entitles the

15   parents to reimbursement.”     R.E., 694 F.3d at 190.     The

16   “state need not ‘maximize the potential of handicapped

17   children,’ but the door of public education must be opened

18   in a ‘meaningful way.’”     P. ex. rel. Mr. and Mrs. P. v.

19   Newington Bd. of Educ., 546 F.3d 111, 119 (2d Cir. 2008)

20   (quoting Walczak, 142 F.3d at 130 (internal quotation marks

21   omitted)).     That is, the “IEP must provide the opportunity

22   for more than only ‘trivial advancement.’” Id.

23


                               Page 25 of   37
 1

 2       A.   Least Restrictive Environment

 3       The IDEA “expresses a strong preference” for educating

 4   disabled students alongside their non-disabled peers; that

 5   is, in their least restrictive environment (“LRE”).

 6   Walczak, 142 F.3d at 122.   Specifically, the IDEA provides

 7   that disabled children be educated “[t]o the maximum extent

 8   appropriate . . . with children who are not disabled,” and

 9   cautions that “special classes, separate schooling, or other

10   removal of children with disabilities from the regular

11   educational environment” should only occur “when the nature

12   or severity of the disability of a child is such that

13   education in regular classes with the use of supplementary

14   aids and services cannot be achieved satisfactorily.” 20

15   U.S.C. § 1412(a)(5)(A) (emphasis added).

16       “[W]hile mainstreaming is an important objective, we

17   are mindful that the presumption in favor of mainstreaming

18   must be weighed against the importance of providing an

19   appropriate education to handicapped students.”   Newington,

20   546 F.3d at 119 (quotation marks and citation omitted).    The

21   “tension between the IDEA’s goal of providing an education

22   suited to a student’s particular needs and its goal of

23   educating that student with his non-disabled peers as much


                            Page 26 of   37
 1   as circumstances allow” dictates a “case-by-case analysis in

 2   reviewing whether both of those goals have been optimally

 3   accommodated under particular circumstances.” Id. (emphasis

 4   added)

 5       We have previously used a two-pronged test to determine

 6   whether a school district has met the LRE mandate mindful of

 7   “our deferential position with respect to state educational

 8   authorities crafting educational policy” when applying it.

 9   Id. at 120.   First, can the student “be satisfactorily

10   educated in the regular classroom, with the use of

11   supplemental aids and services[?]”    Id. at 121.   To answer

12   that question we consider: “(1) whether the school district

13   has made reasonable efforts to accommodate the child in a

14   regular classroom; (2) the educational benefits available to

15   the child in a regular class, with appropriate supplementary

16   aids and services, as compared to the benefits provided in a

17   special education class; and (3) the possible negative

18   effects of the inclusion of the child on the education of

19   the other students.”   Id. at 120.   If a school district

20   actually “remov[es] the child from [a] regular classroom

21   [into] a segregated, special education class,” a second

22   question confronts us: “whether the school has included the

23   child in school programs with nondisabled children to the


                             Page 27 of   37
 1   maximum extent appropriate.”      Id. (quotation omitted).

 2   These two questions, however, do not adequately address

 3   M.W.’s placement in a general education environment with

 4   integrated co-teaching services, a placement somewhere in

 5   between a regular classroom and a segregated, special

 6   education classroom.     New York regulations set out the

 7   definition of integrated co-teaching.

 8       “To enable students with disabilities to be educated

 9   with nondisabled students to the maximum extent appropriate,

10   specially designed instruction and supplementary services

11   may be provided in the regular class, including, as

12   appropriate, providing related services, resource room

13   programs and special class programs within the general

14   education classroom.”     N.Y. Comp. Codes R. & Regs. tit. 8 §

15   200.6(a)(1).   “A school district may include integrated co-

16   teaching services in its continuum of services.” Id. at §

17   200.6(g).

18       “Integrated co-teaching services means the provision of

19   specially designed instruction and academic instruction

20   provided to a group of students with disabilities and

21   nondisabled students.”     Id.   “The maximum number of students

22   with disabilities receiving integrated co-teaching services

23   in a class shall be determined in accordance with the


                               Page 28 of   37
 1   students’ individual needs [and the] number of students with

 2   disabilities in such classes [cannot] exceed 12 students”

 3   unless a variance was provided. Id. at § 200.6(g)(1).         At a

 4   minimum, the classroom must include a special education

 5   teacher and a general education teacher.         Id. at §

 6   200.6(g)(2).    In contrast, a special education classroom is

 7   a “self-contained setting.”     See Id. at § 200.6(h)(4).

 8       The Parents refer repeatedly to an “ICT classroom” and

 9   they assert that the use of ICT services makes M.W.’s

10   placement akin to a segregated special education classroom

11   rather than a regular classroom with supports.         Accordingly,

12   the Parents argue that the DOE failed to consider a regular

13   classroom with additional supports.         Though it is fair to

14   say that a classroom with ICT services is not a “regular

15   classroom,” it is likewise unfair to characterize the

16   placement as a segregated, special-education environment.

17   Newington, however, does not compel a choice between the two

18   extremes of a regular classroom and a special education

19   classroom.     Newington only gives us a test to use when a

20   student is pulled out of a regular classroom and placed in a

21   special education classroom all or some of the time.

22   Accordingly, we do not have to decide whether this is a

23   regular classroom or a special education classroom.         Though


                               Page 29 of   37
 1   M.W.’s placement adds a degree of complexity to the LRE test

 2   articulated in Newington, we need only consider whether the

 3   placement of M.W. in a general education environment with a

 4   regular curriculum alongside typically developing peers but

 5   supplemented with a special education teacher was overly

 6   restrictive for M.W.

 7       Both the IEP and the New York regulations characterize

 8   ICT as a service in a general education environment rather

 9   than a special education classroom.       The IEP’s “School

10   Environment and Service Recommendation” would have placed

11   M.W. in a general education environment for all areas of

12   instruction.   ICT was listed as a supplementary aid and

13   service, along with the use of a behavior management

14   paraprofessional and M.W.’s other related services.       The IEP

15   also noted that no areas of instruction were to be in a

16   special-class environment.

17       Moreover, both the IHO and SRO treated ICT as a service

18   and not a special-education classroom.       The IHO concluded

19   that the DOE “failed to present any evidence that an ICT

20   program . . . provided sufficient special education support

21   for [M.W.] in the classroom.”   IHO Decision at 26 (emphasis

22   added).   A close reading of the SRO’s opinion reveals that

23   she also characterized the use of a special education


                             Page 30 of   37
 1   teacher, paraprofessional, and related services as

 2   “provid[ing] special education support” and that M.W.

 3   deserved to be in a “general education curriculum” alongside

 4   typically developing peers on account of his high

 5   functionality.   See SRO Decision at 16 (emphasis added).    On

 6   these facts, M.W. has not persuaded us that the ICT services

 7   were too restrictive and the record does not reflect that

 8   New York’s statutory schema incorrectly classifies ICT

 9   services as a placement less restrictive than a segregated,

10   special-education classroom.   Accordingly, we decline to

11   analyze M.W.’s ICT classroom placement as a placement in a

12   special-education classroom.

13       The question then in this case is whether the ICT

14   services were appropriate supports for M.W. within a general

15   education environment.   The Parents contend that a classroom

16   with ICT services was overly restrictive because M.W. had

17   been educated alongside “exclusively non-disabled peers . .

18   . [and that he had proven] that with support, he could ‘make

19   it’ in a far less restrictive environment.”   Br. at 22.    The

20   Parents rely upon the IDEA’s prescription that children be

21   educated with non-disabled children to the maximum extent

22   appropriate, see 20 U.S.C. § 1412(a)(5)(A), whereas the FAPE

23   mandate only requires an “appropriate public education.”


                              Page 31 of   37
 1   They assert that any classroom restrictions that result in

 2   raising the educational level afforded to the student beyond

 3   what can be deemed “appropriate” are therefore

 4   impermissible, maintaining that the “test is not whether a

 5   student can learn ‘more’ or learn ‘better’ in a more

 6   restrictive setting, but simply whether the student can

 7   learn ‘satisfactorily’ with aids and services in a less

 8   restrictive environment.” Br. at 22.      Our cases, however, do

 9   not stand for that robust proposition.

10       The IDEA seeks to provide disabled children with a

11   meaningful public education while protecting them from being

12   inappropriately sequestered in a special-education

13   classroom.   Burlington, 471 U.S. at 373 (“Congress was

14   concerned about the apparently widespread practice of

15   relegating handicapped children to private institutions or

16   warehousing them in special classes.”).      Newington

17   recognizes this apparent tension and instructs us to weigh

18   the presumption of mainstreaming against educational

19   benefits obtained in more restrictive settings through a

20   case-by-case analysis that seeks an optimal result across

21   the two requirements.   Moreover, Newington characterized the

22   LRE requirement as a “strong preference” and cautioned that

23   the presumption in favor of mainstreaming must be weighed


                             Page 32 of   37
 1   against the importance of providing an appropriate education

 2   to handicapped students; sometimes education in a regular

 3   classroom cannot be achieved satisfactorily.    Newington, 546

 4   F.3d at 119.   But, as just articulated, Newington does not

 5   compel a choice between a regular classroom and a special

 6   education classroom.   Likewise, the IDEA contemplates that

 7   the DOE will consider a continuum of related services and

 8   options that will be a “best fit” for the student in

 9   question.

10       Accordingly, the Parents’ position ignores that we

11   weigh the benefits of a less-restrictive environment against

12   the backdrop of the educational benefits a child can receive

13   in such an environment.    Therefore, we do not assume that

14   moving M.W. from an educational setting where he experienced

15   some progress into a more restrictive setting, ipso facto,

16   warrants tuition reimbursement for a private placement.

17   Instead, we examine whether the preponderance of the

18   evidence supports the SRO’s conclusion that the IEP provided

19   M.W. an appropriate education in his least restrictive

20   environment.

21       The Parents also contend that the addition of ICT

22   services were inappropriate and too restrictive because M.W.

23   would be learning alongside as many as twelve other IEP


                               Page 33 of   37
 1   students.    We reject the unsupported assertion that the

 2   restrictiveness of the educational environment and related

 3   services turns exclusively on the number of IEP students

 4   present.    “[T]he objective of providing an education

 5   tailored to each student’s particular needs does not admit

 6   of statistical generalizations.”      Newington, 546 F.3d at

 7   121-22.

 8       Accordingly, we consider whether the ICT services were

 9   overly restrictive along the continuum of services available

10   to M.W. in a general education environment.     The IHO did not

11   make any conclusions or findings regarding the LRE per se.

12   She did, however, conclude in summary fashion that the

13   district “presented no documentary evidence to support the

14   appropriateness of the ICT placement” in light of M.W.’s

15   various developmental problems.    IHO Opinion at 27.    Because

16   the SRO thoroughly addressed the LRE mandate and the

17   appropriateness of the ICT services, we defer to her

18   conclusions.

19       A careful review of the record reveals that M.W.’s

20   autism and related disorders caused behavioral issues that

21   disrupted class and impaired his educational development.

22   Chanie Graus, the psychologist and DOE representative,

23   concluded that M.W. would benefit “from two teachers in the


                              Page 34 of   37
 1   classroom versus one [because] it’s really important for

 2   [M.W.] to be exposed to typically developing students, since

 3   he’s under the autistic spectrum, but he’s high

 4   functioning.” Tr. 433-34.        Graus thought that putting M.W.

 5   in a segregated special education classroom “would really be

 6   detrimental to him.”     Id. at 434.     Taking into consideration

 7   his “average I.Q., and that he’s only mildly delayed in

 8   comparison to other students his grade,” Graus said they

 9   wanted M.W. “to be challenged and exposed to a general

10   education curriculum.”     Id.     At the IEP meeting, no one

11   expressed disagreement with the recommendation for an ICT

12   classroom.   Graus also concluded that a regular general

13   education classroom would be inappropriate because of his

14   emotional difficulties and that having a special education

15   teacher would be a benefit.        Id. at 437.

16       A preponderance of the evidence supports the SRO’s

17   conclusions that the IEP recommendation of ICT services in a

18   general education setting was appropriate and reasonable.

19   The DOE was not required to place M.W. in a regular

20   classroom where he was the only IEP student.

21       B.   Length of Program

22       The Parents also argue the DOE’s failure to provide a

23   12-month program denied M.W. a FAPE.         The IHO determined


                               Page 35 of    37
 1   that the CSE failed to “justify the elimination of a 12-

 2   month program” and the administrative record did not support

 3   a “reduction in services from a 12-month program to a 10-

 4   month program.” IHO Decision at 26.        The SRO noted that the

 5   IHO “did not cite to any evidentiary basis for her

 6   determination” and concluded that the determination that

 7   “the district’s decision not to offer 12-month services

 8   denied the student a FAPE [was] not supported by the hearing

 9   record.” SRO Decision at 23.    We defer to that conclusion.7

10       The Parents rely exclusively on the IHO’s statement

11   that “the [DOE]’s own witness . . . stated [that] M.W.

12   required a 12-month program” to develop their argument.          See

13   IHO Decision at 26 (citing Tr. at 761) (emphasis added).

14   That reliance is misplaced.    The DOE witness was the special

15   education teacher who would have been leading M.W.’s ICT

16   services and who was not part of the IEP team.        She said

17   that “being a teacher, . . . more is better, and for a child


          7
           The IHO’s misstatements of the record further justify this
     deference. The IHO credited the “district’s own witness who
     stated based on her review of the June 10, 2010 IEP [M.W.]
     required a 12-month program.” IHO Decision at 26. The
     district’s witness was the special-education teacher who would
     have ran M.W.’s ICT services. In response to a question whether
     M.W. would benefit from a 12-month program she merely stated:
     “Oh, well, being a teacher, I - more is better, and for a child
     with such deficits, I think a 12 month would be good for this
     child. Anything to help him, you know.” Tr. 762. She also
     testified that he would have made progress in a 10-month program.
     Tr. 770.

                              Page 36 of   37
 1   with such deficits, I think a 12 month [program] would be

 2   good for the child.” Tr. 761 (emphasis added). That

 3   “concession” does not suggest that such a program would be

 4   necessary or required to prevent regression.      Moreover, the

 5   administrative record reveals that regression was not a

 6   topic discussed at the IEP meeting.       See Tr. 638.   Mom

 7   testified that she was not seeking tuition reimbursement for

 8   a 12-month program, only a 10-month program.      Tr. at 1109.

 9   Accordingly, we are not persuaded that the SRO erred in

10   concluding that the absence of 12-month services did not

11   deny M.W. a FAPE. We also do not agree that the cumulative

12   results of the alleged errors resulted in a FAPE denial.

13   See R.E., 694 F.3d at 190.

14       Having considered all of the Parents’ arguments on

15   appeal, we find them to be without merit.      Accordingly, we

16   conclude that the SRO correctly determined that the IEP was

17   substantively adequate and, despite alleged procedural

18   flaws, provided M.W. a FAPE.

19                             Conclusion

20       The district court’s order of June 15, 2012, granting

21   summary judgment for Defendant-Appellee New York City

22   Department of Education is hereby AFFIRMED.




                             Page 37 of   37
