     13-4187
     R.B. v. New York City Dep’t of Educ.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

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

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 29th day of October, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                CHRISTOPHER F. DRONEY,
 8                              Circuit Judges,
 9                LEWIS A. KAPLAN,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       R.B., individually & on behalf of
14       D.B., M.L.B., individually & on
15       behalf of D.B.,
16                Plaintiffs-Appellants,
17
18                    -v.-                                               13-4187
19
20       NEW YORK CITY DEPARTMENT OF EDUCATION,
21                Defendant-Appellee.
22       - - - - - - - - - - - - - - - - - - - -X
23


                *
                  The Honorable Lewis A. Kaplan, of the United
         States District Court for the Southern District of New York,
         sitting by designation.
                                                  1
 1   FOR APPELLANT:             JESSE COLE CUTLER, Law Offices
 2                              of Regina Skyler & Associates,
 3                              New York, New York.
 4
 5   FOR APPELLEE:              ELLEN RAVITCH (for Zachary W.
 6                              Carter, Corporation Counsel of
 7                              the City of New York, with
 8                              Pamela Seider Dolgow on the
 9                              brief), New York, New York.
10
11        Appeal from a judgment of the United States District
12   Court for the Southern District of New York (Nathan, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        R.B. and M.L.B. (collectively, “Plaintiffs”),
19   individually and on behalf of their minor child D.B., appeal
20   from the September 30, 2013 judgment of the United States
21   District Court for the Southern District of New York
22   (Nathan, J.), granting summary judgment to
23   defendant-appellee New York City Department of Education
24   (the “DOE”) on Plaintiffs’ claim for tuition reimbursement
25   under the Individuals with Disabilities Education Act
26   (“IDEA”), 20 U.S.C. § 1400 et seq. The district court
27   affirmed the decision of the State Review Officer (“SRO”),
28   which had reversed the decision of the New York State
29   Impartial Hearing Officer (“IHO”).1 Plaintiffs challenge
30   the SRO’s conclusion (affirmed by the district court) that
31   the DOE’s 2010-2011 individualized education program (“IEP”)
32   provided D.B. a Free and Appropriate Public Education
33   (“FAPE”). We assume the parties’ familiarity with the
34   underlying facts, procedural history, and specification of
35   issues for review.
36



         1
              “[T]he IDEA mandates that states provide
     ‘impartial due process hearings’” under which parties may
     pursue their claims. R.E. v. N.Y.C. Dep’t of Educ., 694
     F.3d 167, 175 (2d Cir. 2012) (quoting 20 U.S.C. § 1415(f)).
     In New York, parties first bring their claims before an IHO,
     who is subject to review by the SRO. Id. “Either party may
     then bring a civil action in state or federal court to
     review the SRO’s decision.” Id.
                                  2
 1        D.B., born in 1998, has been diagnosed with autism.
 2   The local Committee on Special Education (“CSE”) has
 3   classified him a “child with a disability” eligible to
 4   receive an IEP. See 20 U.S.C. § 1401(3).
 5
 6        At a February 2010 meeting to develop an IEP for the
 7   2010-2011 school year, the CSE team agreed that a 12-month,
 8   6:1:1 (students : teachers : paraprofessionals) program in a
 9   specialized school was appropriate. Also included in the
10   2010-2011 IEP were occupational therapy (“OT”) (4 x 30
11   minutes per week); speech and language therapy (“SLT”) (4 x
12   30 minutes per week individually, 1 x 30 minutes per week in
13   a group of two); and counseling (1 x 30 minutes per week
14   individually, 1 x 30 minutes per week in a group of two).
15   D.B.’s special education teacher at the Rebecca School
16   (which he had been attending) agreed with a number of the
17   recommendations and goals of the 2010-2011 IEP, and M.L.B.
18   did not object.
19
20        The DOE’s June 2010 Final Notice of Recommendation from
21   the DOE (dated June 15, 2010), which restated the CSE team’s
22   recommendation of a 6:1:1 class in a specialized school and
23   offered D.B. a placement at P.S. M169’s Robert F. Kennedy
24   School (“P.169”).
25
26        Plaintiffs ultimately rejected DOE’s recommended
27   placement for 2010-2011 and enrolled D.B. in the Rebecca
28   School, a private special education school that serves
29   children with autism. There, D.B. received thirty-minute
30   sessions of OT four times per week; SLT five times per week;
31   and counseling (once per week individually; and once in a
32   group of two); and art therapy and music therapy, each twice
33   per week. Tuition, for which Plaintiffs seek full
34   reimbursement, was $92,100.
35
36        On January 25, 2011, M.L.B. and R.B. filed a due
37   process complaint requesting a hearing before an IHO. Dr.
38   Salsberg, D.B.’s neuropsychologist, testified as Plaintiffs’
39   expert witness that he had worked as a paraprofessional
40   prior to attending graduate school, that he visits “dozens
41   of schools a year,” and that he had observed DOE 6:1:1
42   programs “[a]t least five or six [times] in the last few
43   months [prior to July 2011].” Tr. 332, 347. Dr. Salsberg
44   testified that, “if [D.B.] was in a class with [students who
45   had] more emotional or behavioral difficulties,” he was
46   “sure that [D.B.] would regress.” Tr. 334.
47

                                  3
 1         Based on Dr. Salsberg’s testimony, the IHO found that
 2   the DOE had failed to offer D.B. a FAPE, and that D.B.’s
 3   parents were entitled to tuition reimbursement for the
 4   2010-2011 school year. On appeal, the SRO reversed. The
 5   district court affirmed the SRO, and this appeal followed.
 6
 7        We review de novo a grant of summary judgment by the
 8   district court in an IDEA case. R.E. v. N.Y.C. Dep’t of
 9   Educ., 694 F.3d 167, 184 (2d Cir. 2012). In doing so, we
10   recognize that “the role of the federal courts in reviewing
11   state educational decisions under the IDEA is
12   circumscribed.” Gagliardo v. Arlington Cent. School Dist.,
13   489 F.3d 105, 112 (2d Cir. 2007) (internal quotation marks
14   omitted). “Although [we] must engage in an independent
15   review of the administrative record and make a determination
16   based on a preponderance of the evidence, . . . such review
17   ‘is by no means an invitation to the courts to substitute
18   their own notions of sound educational policy for those of
19   the school authorities which they review.’” Cerra v.
20   Pawling Cent. School Dist., 427 F.3d 186, 191-92 (2d Cir.
21   2005) (internal quotation marks and citation omitted)
22   (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982)).
23   “We must give ‘due weight’ to the state proceedings, mindful
24   that we lack ‘the specialized knowledge and experience
25   necessary to resolve . . . questions of educational
26   policy.’” R.E., 694 F.3d at 189 (quoting Gagliardo, 489
27   F.3d at 113). We “generally defer to the final decision of
28   the state authorities, even where the reviewing authority
29   disagrees with the hearing officer,” M.H. v. N.Y.C. Dep’t of
30   Educ., 685 F.3d 217, 241 (2d Cir. 2012) (internal quotation
31   marks omitted).   Only if the SRO’s decision is
32   “insufficiently reasoned to merit . . . deference,” may we
33   disregard it. Id. at 246.
34
35         To determine IEP compliance with the IDEA, courts
36   consider “whether there were procedural violations of the
37   IDEA,” and “whether the IEP was substantively adequate,
38   namely, whether it was reasonably calculated to enable the
39   child to receive educational benefits.” R.E., 694 F.3d at
40   189-90 (internal quotation marks, alteration, and citations
41   omitted). Plaintiffs challenge both the procedural and
42   substantive adequacy of the 2010-2011 IEP.
43
44        Procedural Adequacy. “[N]ot every procedural error
45   will render an IEP legally inadequate.” M.H., 685 F.3d at
46   245. Relief is warranted only if procedural inadequacies
47   “(I) impeded the child’s right to a [FAPE]; (II)

                                  4
 1   significantly impeded the parents’ opportunity to
 2   participate in the decisionmaking process regarding the
 3   provision of [a FAPE] to the parents’ child; or (III) caused
 4   a deprivation of educational benefits.” 20 U.S.C.
 5   § 1415(f)(3)(E)(ii).
 6
 7        1. Plaintiffs first argue that the IEP team relied
 8   upon insufficient information in developing D.B.’s 2010-11
 9   IEP, and that the failure to properly reevaluate D.B. prior
10   to the CSE meeting impeded his right to a FAPE. DOE argues
11   that the Court should defer to the SRO, which found that the
12   documents the IEP team reviewed--including a December 2009
13   evaluation of D.B. from the Rebecca School, D.B.’s 2009-2010
14   IEP, and a November 2009 classroom observation of D.B.
15   conducted by the DOE--constituted “sufficient evaluative
16   data with which to formulate [D.B.’s 2010-2011 IEP].” SRO
17   Dec. 14.
18
19        Any child who is eligible to receive a FAPE under the
20   IDEA must be evaluated by his or her school district’s CSE
21   in order to “gather relevant functional, developmental and
22   academic information about the student” necessary to
23   “determine whether the student is a student with a
24   disability and the content of the student’s [IEP].” N.Y.
25   Comp. Codes R. & Regs. Tit. 8 (“8 NYCRR”), § 200.4(b)(1);
26   see also 20 U.S.C. § 1414(a)-(c). New York law requires
27   that a student be evaluated by the CSE prior to his initial
28   IEP and at least once every three years thereafter. See 8
29   NYCRR § 200.4(b)(4). An evaluation may also be conducted if
30   “the [CSE] determines that the [student’s] educational or
31   related services needs . . . warrant a reevaluation or if
32   the student’s parent or teacher requests a reevaluation.”
33   Id. In conducting its evaluation, the CSE team should “use
34   a variety of assessment tools and strategies” and “not use
35   any single measure or assessment as the sole criterion for .
36   . . determining an appropriate educational program for the
37   child.” 20 U.S.C. § 1414(b)(2)(A), (B).
38
39        Plaintiffs argue that the documents reviewed by the CSE
40   team were inadequate and out-of-date, and that a triennial
41   evaluation should have been conducted (instead of an annual
42   review). The SRO observed that the record was “not clear as
43   to whether the student was required to have a triennial
44   evaluation,” but concluded that because the IEP itself was
45   marked as an “annual review,” and “the parents ha[d] not
46   contested this,” the DOE was not statutorily required to
47   conduct a full evaluation; the review that did occur,

                                  5
 1   moreover, was found by the SRO to be wholly adequate.   SRO
 2   Dec. at 13-14.
 3
 4        These conclusions are supported by the record, and
 5   accordingly merit deference: first, the CSE meeting could
 6   have been rescheduled if either the Plaintiffs or the CSE
 7   team thought an evaluation was required; second, M.L.B. knew
 8   of her right to provide the CSE team with any evaluative
 9   information she wished them to consider; and third, M.L.B.
10   did not object, during or after the CSE meeting, to the
11   evaluative information the CSE reviewed, or request that the
12   CSE perform testing to obtain additional information about
13   D.B.’s educational needs.
14
15        2. Plaintiffs next contend that the 2010-2011 IEP is
16   procedurally flawed because it did not mandate the exclusive
17   use of the Developmental, Individual-Difference,
18   Relationship-Based Model (“DIR/Floortime”) methodology,
19   which they claim is the only pedagogical methodology
20   suitable for D.B.2
21
22        Under the IDEA, a student who is entitled to “special
23   education” services should receive “specially designed
24   instruction,” which requires "adapting, as appropriate to
25   the [student’s] needs . . . , the content, methodology, or
26   delivery of instruction.” 34 C.F.R. § 300.39(b)(3); see
27   also 20 U.S.C. § 1401(29). So long as the methodologies
28   referenced in the IEP are “appropriate to the [student’s]
29   needs,” 34 C.F.R. § 300.39(b)(3), the omission of a
30   particular methodology is not a procedural violation. See
31   R.E., 694 F.3d at 192-94.
32
33        The SRO determined that IEP’s omission of a specific
34   methodology did not deny D.B. a FAPE because “[t]he hearing
35   record does not reflect that [D.B.] could only receive
36   educational benefits through the exclusive use of the
37   DIR/Floortime methodology.” This conclusion is supported by
38   the evidence available at the time of the IEP’s development,
39   and is not undermined by any evidence offered by Plaintiffs.
40   See also Salsberg Report (explained that “[i]n October,
41   2001, [D.B.] was evaluated by Cecelia McCarton, M.D., who


         2
              This claim implicates both procedural and
     substantive elements of Plaintiffs’ challenge to the 2010-
     2011 IEP. To the extent it is also a substantive challenge,
     it is rejected for the reasons stated in this section.
                                  6
 1   recommended Applied Behavioral Analysis (ABA) therapy at
 2   home and school. [D.B.] then attended an ABA classroom the
 3   following year at CPELC with progress noted”). Accordingly,
 4   we defer to the SRO’s conclusion that the failure of D.B.’s
 5   2010-2011 IEP to mandate the use of DIR/Floortime was not a
 6   procedural violation.
 7
 8        Substantive Adequacy. “[A] school district complies
 9   with IDEA’s substantive requirements if a student’s IEP is
10   reasonably calculated to enable the child to receive
11   educational benefit[s].” Cerra, 427 F.3d at 194-95
12   (internal quotation marks omitted). “A school district is
13   not, however, required to furnish every special service
14   necessary to maximize each handicapped child’s potential.”
15   Id. at 195 (internal quotation marks and citations omitted).
16   “Rather, a school district fulfills its substantive
17   obligations under the IDEA if it provides an IEP that is
18   likely to produce progress, not regression, and if the IEP
19   affords the student with an opportunity greater than mere
20   trivial advancement.” Id. (internal quotation marks
21   omitted).
22
23        Plaintiffs contend that the SRO’s decision that the
24   recommended 6:1:1 program was appropriate for D.B. was
25   “inadequately reasoned” because the SRO did not discuss the
26   testimony of Dr. Salsberg, upon which the IHO relied. But
27   neither his testimony nor other evidence in the record
28   demonstrates that the P.169 or its 6:1:1 program is
29   inappropriate for D.B; to the contrary, the record suggests
30   that D.B. would have been functionally grouped in the
31   assigned class so as to mitigate the perceived
32   disadvantages. D.B. was within the age and functional
33   ranges of students in the proposed class, and the teacher,
34   Ms. Klemm, testified that D.B. was similar to students in
35   terms of his academic, social, and behavioral needs.
36
37        Dr. Salsberg’s prior experience and M.L.B.’s
38   observations of particular classes during her visit to P.169
39   may have caused them to worry that P.169 was incapable of
40   adhering to D.B.’s 2010-11 IEP. However, “speculation . . .
41   is not an appropriate basis for unilateral placement.” R.E.,
42   694 F.3d at 195. The rationale for this principle is
43   apparent in M.L.B.’s admission that during her short summer
44   tour of the placement, “I didn’t feel like I got an
45   impression of the actual class that [D.B.] was [to be] in”
46   because “there were no kids there[.]” Tr. 396.
47

                                  7
 1        In sum, the record supports the well-reasoned
 2   conclusion of the SRO that D.B.’s 2010-2011 IEP was
 3   reasonably calculated to produce progress, and could be
 4   fully implemented at P.169. Accordingly, we conclude that
 5   the 2010-2011 IEP was substantively adequate.
 6
 7        We have considered all of Plaintiffs’ remaining
 8   arguments and find them to be without merit. For the
 9   foregoing reasons, and giving appropriate deference to the
10   SRO, we conclude that the 2010-2011 IEP was both
11   procedurally and substantively adequate. As a result,
12   Plaintiffs are not entitled to reimbursement under the IDEA.
13
14       The judgment of the district court is hereby AFFIRMED.
15
16
17                              FOR THE COURT:
18                              CATHERINE O’HAGAN WOLFE, CLERK
19




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