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L.O. v. New York City Department of Education

United States Court of Appeals, Second Circuit

May 20, 2016

L.O., individually and on behalf of K.T., a child with a disability, Plaintiff-Appellant,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellee

         Argued March 10, 2016.

         Appeal 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.

         PHILIP B. ABRAMOWITZ, Williamsville, N.Y. (Jason Hale Sterne, Cuddy Law Firm, P.C., Auburn, NY, on the brief), for Plaintiff-Appellant.

         ANDREW A. FEINSTEIN, Andrew A. Feinstein, LLC, Mystic, CT, for Amicus Curiae Council of Parent Attorneys and Advocates, in support of Plaintiff-Appellant.

         AMANDA SUE NICHOLS, Assistant Corporation Counsel (Richard Dearing, Assistant Corporation Counsel, on the brief), for Zachary W. Carter, Corporation Counsel, New York, NY, for Defendant-Appellee.

         Before: LEVAL, POOLER, AND WESLEY, Circuit Judges.

          OPINION

         WESLEY, Circuit Judge :

         Before 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,[1] 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.

         In 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.[2] 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,[3] program modifications, compensatory services, and attorney's fees and costs.

         Following 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.

         BACKGROUND

         I. Legal Framework

          The 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,[4] 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 690 (1982)).

          If a 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 § 4404(1)-(3)).

         II. Statement Of Facts

         A. K.T.

         K.T. is an autistic child born in October 1995 who suffers from obsessive compulsion disorder, mild mental retardation, mood disorder, asthma, and pica.[5] 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 years.

         B. K.T.'s December 2009 Individualized Education Program

         On 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).[6] 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 at 4.

         The IEP 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 adult living.

         Moreover, 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.

         C. K.T.'s December 2010 Individualized Education Program

         On 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).[7] 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.

         D. K.T.'s March 2011 Individualized Education Program

         Shortly 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.[8] 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.

         E. Administrative Review

         On 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.

         On January 10, 2012, a five-day impartial hearing commenced before an IHO, which heard testimony from nine witnesses.[9] 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.

         L.O. 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 evaluations.

         As to 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.

         Further, 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." [10] 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.

         F. District Court Review

         Thereafter, 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.

         First, 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. a FAPE.

         The 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.

         Next, 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." [11] 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 appropriate.[12]

         The 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.[13] 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).

         Next, 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.

         Last, 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 ...


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