L.O., individually and on behalf of K.T., a child with a disability, Plaintiff-Appellant,
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellee
March 10, 2016.
from an order of the United States District Court for the
Southern District of New York (Gardephe, J.), entered on
March 23, 2015, granting judgment for Defendant-Appellee New
York City Department of Education (" DOE" ) and
denying Plaintiff-Appellant L.O., on behalf of herself and
her disabled son, K.T., relief under the Individuals with
Disabilities Education Act, 20 U.S.C. § § 1400 et
seq. In denying L.O. relief, the District Court concluded
that K.T. was afforded a free appropriate public education
(" FAPE" ) by the DOE for the 2009-2010, 2010-2011,
and 2011-2012 school years. We disagree and hold that the DOE
failed to offer K.T. a FAPE for each school year.
Accordingly, we REVERSE the decision of the District Court
and REMAND for further proceedings.
B. ABRAMOWITZ, Williamsville, N.Y. (Jason Hale Sterne, Cuddy
Law Firm, P.C., Auburn, NY, on the brief), for
A. FEINSTEIN, Andrew A. Feinstein, LLC, Mystic, CT, for
Amicus Curiae Council of Parent Attorneys and Advocates, in
support of Plaintiff-Appellant.
SUE NICHOLS, Assistant Corporation Counsel (Richard Dearing,
Assistant Corporation Counsel, on the brief), for Zachary W.
Carter, Corporation Counsel, New York, NY, for
LEVAL, POOLER, AND WESLEY, Circuit Judges.
Circuit Judge :
the court is an action brought under the Individuals with
Disabilities Education Act (" IDEA" ), 20 U.S.C.
§ § 1400 et seq., by Plaintiff-Appellant
L.O., on behalf of herself and her son, K.T., now a
twenty-year-old autistic child, against
Defendant-Appellee the New York City Department of Education
(" DOE" ). This appeal concerns L.O.'s
challenge to the adequacy of three individualized education
programs (" IEP" ), which were characterized by a
pattern of procedural violations of the IDEA committed by the
DOE, and whether these errors deprived K.T. of a free
appropriate public education (" FAPE" ) for a
period of three consecutive years.
December 2009, the DOE convened a local Committee on Special
Education (" CSE" ) meeting for the purpose of
developing an IEP for K.T. for the 2010 academic year. K.T.
enrolled in the IEP's prescribed placement and continued
to attend as provided for by two subsequent IEPs in December
2010 and March 2011, until he began refusing to attend school
in November 2011. Thereafter, L.O. filed a due process
complaint against the DOE, claiming procedural and
substantive violations of the IDEA, and that K.T. had been
deprived of a FAPE for the 2009-2010, 2010-2011, and
2011-2012 school years. Specifically, L.O. sought, among
other things, the completion of further
evaluations, program modifications, compensatory
services, and attorney's fees and costs.
a five-day hearing, an impartial hearing officer ("
IHO" ) denied L.O. that relief. L.O. appealed to a state
review officer (" SRO" ) who affirmed that
decision. Thereafter, L.O. brought suit in the United States
District Court for the Southern District of New York
(Gardephe, J. ), which affirmed the order of the
SRO. See L.O. v. N.Y.C. Dep't of Educ.,
94 F.Supp.3d 530, 537 (S.D.N.Y. 2015). L.O. appealed,
contending primarily that the three IEPs formulated for K.T.
violated the IDEA and deprived him of a FAPE. For the reasons
set forth below, we REVERSE.
IDEA requires " [a] state receiving federal funds under
the IDEA [to] provide disabled children with a [FAPE]."
R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167,
174-75 (2d Cir. 2012). School districts, through a
CSE, are responsible for formulating a
written IEP for every qualifying child. Id. at 175;
see also 20 U.S.C. § 1414(d). The IEP "
sets out the child's present educational performance,
establishes annual and short-term objectives for improvements
in that performance, and describes the specially designed
instruction and services that will enable the child to meet
those objectives." R.E., 694 F.3d at 175
(internal quotation marks omitted). To comply with the
provisions of the IDEA, the IEP must " be
'reasonably calculated to enable the child to receive
educational benefits.'" Id. (quoting
Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d
parent believes that his or her child is being denied a FAPE,
the parent may file a " due process complaint"
challenging " any matter relating to the identification,
evaluation, or educational placement of the child, or the
provision of a [FAPE] to such child." 20 U.S.C. §
1415(b)(6)(A). Doing so " triggers an administrative
procedure by which the board of education appoints an [IHO]
who conducts a formal hearing and fact-finding. The decision
of an IHO may be appealed to a[n] [SRO], and an SRO's
decision may be challenged by filing a civil action in state
or federal court." M.O. v. N.Y. City Dep't of
Educ., 793 F.3d 236, 239 (2d Cir. 2015) (per curiam)
(citations and internal quotation marks omitted) (citing 20
U.S.C. § 1415(g), (i)(2)(A); N.Y. Educ. Law §
Statement Of Facts
an autistic child born in October 1995 who suffers from
obsessive compulsion disorder, mild mental retardation, mood
disorder, asthma, and pica. Since he was first
diagnosed with autism at the age of four, K.T. has attended
public special education programs in a 6:1:1 (i.e., six
students, one teacher, one paraprofessional aide) special
classroom setting with the support of related services
including speech-language, occupational, counseling, and
physical therapies. In 2009, K.T. began attending PS 811X, a
public special education school located in the Bronx, New
York. In accordance with his IEP formulated in December 2008,
K.T. was placed in a 6:1:1 special class setting where he
continued to receive the same support services as in prior
K.T.'s December 2009 Individualized Education
December 2, 2009, a CSE team convened for its annual meeting
to develop an IEP for K.T. for December 14, 2009 to December
14, 2010 (i.e., the 2009-2010 school year). The IEP
described K.T. as a fourteen-year-old " partially verbal
autistic young man" who understood " one-step
commands," and " communicate[d] with others by
pointing to what he want[ed] or need[ed]." Pl.'s Ex.
6 at 1, 3. The IEP further observed that K.T.'s writing
ability was limited to " copying letters, at times his
letter overlap," and that he " c[ould] write
numbers 1-10." Pl.'s Ex. 6 at 3. It also noted that
he suffered from frequent and sudden mood and personality
changes, restlessness, and that he would become "
verbally and physically aggressive, many times for no
apparent reason," and also " engage[d] in
self-abusive behaviors such as punching himself in the head,
scratching himself, and eating staples." Pl.'s Ex. 6
recommended placement in a 6:1:1 " [s]pecial class in a
specialized school with related services" for a
twelvemonth school year. Pl.'s Ex. 6 at 1. The CSE
further observed, however, that K.T. " benefit[ted] from
a small [and] highly structured class setting" and
" forms of positive reinforcement," and that
K.T.'s " [b]ehavior seriously interfere[d] with
instruction and require[d] additional adult support."
Pl.'s Ex. 6 at 3, 4. Accordingly, the IEP recommended
that K.T. participate in an " Alternative
Assessment" program due to the " [s]everity of
[his] deficits in cognitive, communication, and social
development." Pl.'s Ex. 6 at 12. The CSE also
recommended that K.T. continue to receive a number of related
services, including speech-language services twice per week
for thirty minutes in a group of three, as well as physical
and occupational therapy, but discontinued K.T.'s
counseling services from the prior IEP. The December 2009 IEP
further set forth nine annual goals and twenty-four
short-term objectives for K.T. during the 2009-2010 school
year. The IEP also provided a plan for K.T. to transition to
based on the CSE's conclusion that K.T.'s behaviors
seriously interfered with instruction, the IEP required the
development of a behavioral intervention plan ("
BIP" ), which was incorporated into the IEP. A BIP is
generally used to " develop . . . strategies to deal
with . . . problem behavior(s)." R.E., 694 F.3d
at 190 (citing N.Y. Comp. Codes R. & Regs. tit. 8, §
200.22(b)). The BIP identified K.T.'s inability to pay
attention and concentrate, and noted that he displayed "
poor anger management" and various self-abusive
behaviors. Pl.'s Ex. 6 at 16. To manage these behaviors,
the BIP suggested " [p]rovid[ing] constant positive
reinforcement," through the support from a classroom
paraprofessional, using tangible rewards and privileges, and
using discipline to punish K.T. for exhibiting poor behavior.
Pl.'s Ex. 6 at 16. The BIP did not, however, attempt to
identify the root causes of K.T.'s problem behaviors. Nor
did the CSE request or develop a functional behavior
assessment (" FBA" ), an assessment designed to
" identif[y] . . . the problem behavior, . . . defin[e]
. . . the behavior in concrete terms, . . . identif[y] . . .
the contextual factors that contribute to the behavior
(including cognitive and affective factors) and . . .
formulat[e] . . . a hypothesis regarding the general
conditions under which a behavior usually occurs." N.Y.
Comp. Codes R. & Regs. tit. 8, § 200.1(r). K.T.
continued to attend his 6:1:1 public school placement
throughout the 2009-2010 school year at PS 811X.
K.T.'s December 2010 Individualized Education
December 20, 2010, the CSE reconvened to formulate a new IEP
for K.T. for January 11, 2011 to January 11, 2012 (i.e., the
2010-2011 school year). The CSE determined that K.T.'s
services should remain unchanged from the prior year and that
K.T. should continue with his alternate assessment
curriculum. The December 2010 IEP provided new annual goals
and short-term objectives, as well as a transition plan and a
BIP nearly identical to that developed for K.T. for the prior
school year. K.T. continued to attend his public school
placement under the new IEP at PS 811X.
K.T.'s March 2011 Individualized Education
thereafter, on January 18, 2011, L.O. wrote to the CSE and
requested an immediate reevaluation of K.T. to ensure that he
was receiving appropriate services in an appropriate
educational setting. The CSE agreed and reconvened on March
7, 2011 to review K.T.'s IEP. The March 2011 IEP
formulated by the CSE for March 21, 2011 to March 21, 2012
(i.e., the 2011-2012 school year), recommended that
K.T.'s services remain unchanged from the December 2011
IEP and that he continue his placement in the alternative
assessment program and receive the same speech, physical, and
occupational therapy services. The March 2011 IEP provided no
new annual goals or short-term objectives, included a
transition plan identical to that contained in the December
2010 IEP, and, although the March 2011 IEP stated that a new
BIP had been developed for K.T., none was incorporated in the
IEP. Thereafter, K.T. continued to attend the 6:1:1 public
school placement until November 18, 2011, when he began
refusing to attend school.
December 9, 2011, L.O. filed a due process complaint,
claiming that the DOE had failed to provide K.T. with a FAPE
for the 2009-2010, 2010-2011, and 2011-2012 school years.
L.O. alleged eighteen separate deficiencies in the IEPs
developed for K.T., including that (1) the IEPs failed to
reflect reliance on any evaluations or assessments of K.T.,
(2) the CSE created BIPs without the benefit of FBAs
resulting in his refusal to attend school, (3) the DOE failed
to provide adequate speech-language services, (4) the CSE
failed to develop annual goals that adequately addressed
K.T.'s educational needs, (5) the IEPs failed to provide
parent counseling and training as a related service, and (6)
K.T.'s significant deterioration as a result of
inappropriate programming had led to the need for a
residential private school placement.
January 10, 2012, a five-day impartial hearing commenced
before an IHO, which heard testimony from nine
witnesses. On April 18, 2012, the IHO rejected
L.O.'s challenge to the appropriateness of K.T.'s
December 2009, December 2010, and March 2011 IEPs, and denied
L.O.'s claim for relief.
appealed the IHO's decision to an SRO. On March 15, 2013,
the SRO affirmed the IHO's decision and dismissed the
appeal, concluding that all three IEPs were properly designed
to address K.T.'s educational needs. In reaching its
conclusion, the SRO rejected L.O.'s claim that there was
no evidence that the CSE had reviewed K.T.'s evaluations
in preparing his IEPs, finding that, although the record did
not show which evaluative information was reviewed during the
CSE meetings, the evidence in the hearing record nevertheless
was consistent with the information contained in the
the DOE's failure to develop FBAs in any of the IEPs in
accordance with New York regulations, the SRO determined that
this failure did not amount to a FAPE deprivation because the
IEPs adequately identified the problem behaviors and
prescribed ways to manage them. As to the lack of a BIP in
the March 2011 IEP, the SRO reasoned that a BIP was
unnecessary at the time of the March 2011 IEP because
K.T.'s level of social/emotional performance "
remained unchanged from the previous IEP," which
included a BIP. App. 58. Further, with respect to K.T.'s
refusal to attend school, the SRO concluded that this
behavior did not begin until well after the preparation of
the March 2011 IEP and therefore was not relevant for
purposes of evaluating the adequacy of the March 2011 IEP.
the SRO considered L.O.'s argument that the IEPs'
provision of two weekly thirty-minute sessions of
speech-language therapy in a group of three was in violation
of New York law because the regulations required daily
instructional services, but found it to be without merit
because daily language instruction was not required under the
current regulations. The SRO also noted that K.T.'s
teacher testified that additional speech-language services
were available to K.T. in the classroom. In addition, as to
the IEPs' goals and objectives, the SRO determined that
" the annual goals and short term objectives . . .
contained sufficient specificity by which to guide
instruction and intervention, evaluate [K.T.'s] progress,
and gauge the need for continuation or revision, and they
contained adequate evaluative criteria."  App. 42.
Last, the SRO determined that, although the CSE erred by
omitting provisions for parental counseling and training in
the IEPs, this failure did not deprive K.T. of a FAPE.
District Court Review
L.O. brought this action in the District Court, claiming
procedural and substantive violations under the IDEA
resulting in the denial of a FAPE for K.T, and seeking a
reversal of the SRO's decision. The parties each
separately moved for summary judgment, and on March 23, 2015,
the District Court, relying heavily on the SRO's
analysis, affirmed that decision.
as to the DOE's claim that the CSE failed to review any
of the evaluative materials in developing the IEPs, the
District Court reviewed each IEP and held that, although the
record did not indicate which specific evaluative materials
the CSE had considered in formulating the IEPs, each IEP was
" consistent with evaluative material available to the
CSE at the time of these meetings." L.O., 94
F.Supp.3d at 555. Accordingly, the District Court held that,
to the extent such a failure to identify specific evaluative
materials upon which it relied in formulating an IEP amounts
to a procedural violation of the IDEA, this did not deny K.T.
District Court next considered L.O.'s claim that K.T. was
deprived of a FAPE because the DOE failed to conduct an FBA
in connection with any of the IEPs despite the presence of
K.T.'s significant interfering behaviors. Despite this
omission, the District Court found that the December 2009 and
December 2010 IEPs each contained BIPs that sufficiently
addressed K.T.'s interfering behaviors and provided
strategies to improve his behavioral performance and
therefore there was no violation of the procedures of the
IDEA. The District Court, however, did not address the lack
of a BIP in the March 2011 IEP. As to L.O.'s claim that
the March 2011 IEP was equally deficient, as highlighted by
K.T.'s eventual refusal to attend classes in the fall of
2011, the District Court rejected the argument because
K.T.'s refusal to attend class did not begin until many
months after the March 2011 IEP had been developed, and the
District Court's review of the adequacy of the IEP was
limited to the written plan itself and the information
available to the parties at the time the plan was formulated.
Accordingly, the District Court held that there was no error
on the part of the DOE and that the SRO correctly refused to
consider K.T.'s attendance issues in reviewing the
adequacy of the March 2011 IEP.
the District Court evaluated whether the IEPs adequately
addressed K.T.'s speech and language needs. It noted
that, although each IEP provided for speech-language therapy
twice each week for thirty minutes in a group of three, prior
to December 2010, at the time the December 2009 IEP was
prepared, New York law required that such services be
provided to autistic students daily, in groups of two or less
for thirty minutes or in groups of six or less for sixty
minutes. The District Court observed that neither the IHO nor
the SRO recognized that the speech-language services provided
for in the December 2009 IEP for K.T. were consequently in
violation of New York law. It thus declined to defer to
either of their findings concerning the question of whether
the December 2009 IEP's provisions for speech-language
instruction denied K.T. a FAPE. Nonetheless, despite this
procedural error in the December 2009 IEP, the District Court
concluded that the IEP " adequately addressed K.T.'s
speech and language needs."  Id. at 560.
As to the December 2010 and March 2011 IEPs, which also
recommended that K.T. receive speech-language therapy twice
weekly for thirty minutes in a group of three, the District
Court noted that these IEPs were developed after the 2010
amendment to the New York regulation and therefore were in
accordance with New York law. The District Court further
agreed with the SRO that the speech-language provisions of
the December 2010 and March 2011 IEPs were
District Court also considered the DOE's alleged failure
to appropriately develop adequate goals in the IEPs that
satisfied K.T.'s educational needs and agreed with the
SRO that the goals set by the CSE in the December 2009 and
December 2010 IEPs were appropriate in light of K.T.'s
needs at the time. As for the March 2011 IEP, however,
the District Court observed certain deficiencies unidentified
by the SRO. Specifically, it observed (1) the lack of goals
related to K.T.'s occupational and physical development
despite no notable change in K.T.'s needs since the
formulation of the December 2010 IEP, and (2) the March 2011
IEP recommended that K.T. continue to receive occupational
and physical therapy, yet omitted the frequency with which
K.T.'s progress would be reported by the DOE. The
District Court found that the IEP's lack of goals related
to K.T.'s occupational and physical needs constituted a
procedural violation but that, because the March 2011 IEP
continued K.T.'s physical and occupational therapy
programs, as well as a transition plan carried over from the
December 2010 IEP, which set goals related to K.T.'s
functional and occupational skills, the March 2011 IEP did
not deny K.T. a FAPE because it contained " detailed and
objective standards by which [K.T.'s] progress c[ould] be
measured on both an annual and short-term basis."
Id. at 557 (first alteration in original) (internal
quotation marks omitted).
the District Court noted the DOE's failure to provide for
parental training and counseling in accordance with New York
law in each of the IEPs, which it concluded amounted to a
procedural violation under the IDEA. Nonetheless, the
District Court agreed with the SRO that this violation on its
own did not amount to a denial of a FAPE for any school year.
the District Court considered the cumulative effect of the
multiple procedural violations in this case but found that
" [t]hese deficiencies, even when considered
cumulatively, did not deny a FAPE to K.T.," because
these deficiencies were " more formal than