A.M. v. New York City Department of Education, 845 F.3d 523

Background

E.H., a six-year-old child with autism, attended a private ABA-focused special education school (MCC) in 2011–12 after DOE IEPs previously were found inadequate; mother A.M. kept him at MCC for 2012–13 and sought tuition reimbursement after a May 2012 CSE IEP recommended a 6:1:1 public special class without guaranteed 1:1 ABA.
The May 2012 CSE relied mainly on private-school and medical reports; DOE representatives did not evaluate E.H. in person and incorporated an MCC-created FBA/BIP summary into the IEP rather than conducting an independent FBA.
The IEP included related services (speech, OT, PT), a planned BIP (based on MCC materials), a tablet with voice output, but omitted parental counseling/training and transitional support services for the receiving public-school teacher.
A.M. filed a due-process complaint; an IHO and then an SRO upheld the DOE’s IEP (finding no FAPE denial), and the District Court affirmed; the Second Circuit vacated and remanded.
The Second Circuit held (1) the IEP’s BIP was legally deficient though the incorporated FBA partly remedied it so no procedural FAPE denial resulted from that alone, (2) omission of parental counseling and transitional teacher-support services were procedural violations but did not by themselves deny a FAPE, and (3) the IEP was substantively inadequate because it failed to follow the evaluative consensus that E.H. required meaningful 1:1 ABA support.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Adequacy of FBA/BIP	DOE failed to conduct its own FBA; incorporated BIP was incomplete and thus denied FAPE	DOE relied on MCC materials; combined FBA/BIP adequately identified behaviors and strategies	BIP was legally deficient, but the IEP’s incorporated FBA together with the BIP nonetheless identified impediments and strategies; no standalone procedural FAPE denial from FBA/BIP alone
Omission of parental counseling/training	Statutory/regulatory requirement for autism programs; omission is procedural and contributed to denial	Omission was immaterial because parent was told the program included training and DOE remains accountable outside IEP	Omission violated NY regulation but was immaterial here; did not deprive child of FAPE because parent was informed and services were represented as part of program
Omission of transitional support services for receiving teacher	NY regulation requires transitional teacher-support services when autistic student moves to less restrictive setting; omission could impede FAPE	DOE: no legal requirement that IEP contain a transition plan and omission did not show harm	Omission violated NY regulations but, on facts, did not deprive E.H. of FAPE (parent failed to show why absence caused substantive harm)
Substantive adequacy: 6:1:1 placement and ABA methodology	Evaluative reports and MCC staff overwhelmingly recommended continued intensive 1:1 ABA; 6:1:1 without guaranteed 1:1 ABA was not reasonably calculated to provide benefit	DOE argued methodology is for professionals, CSE can choose 6:1:1 and need not specify ABA, and some evaluators did not mandate ABA	Court held the administrative decision was unsupported by the preponderance of evidence: consensus favored 1:1 ABA; IEP substantively inadequate and deprived E.H. of a FAPE
Cumulative procedural effect	Multiple procedural failures cumulatively denied FAPE	Procedural errors were not significant and did not affect substance	Court found procedural errors did not individually or collectively establish a procedural FAPE denial, but when combined with substantive failure they reinforced the conclusion that the IEP was not reasonably calculated to confer benefit

Key Cases Cited

M.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131 (2d Cir. 2013) (standard for reviewing IEP adequacy and Burlington/Carter framework)
R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012) (consensus of evaluators requiring ABA/1:1 support controls; procedural FBA/BIP requirements)
L.O. v. N.Y.C. Dep’t of Educ., 822 F.3d 95 (2d Cir. 2016) (procedural errors and BIP/FBA standards for students with autism)
M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012) (deference and scope of judicial review in IDEA cases)
Bd. of Educ. v. Rowley, 458 U.S. 176 (U.S. 1982) (IEP must be reasonably calculated to confer educational benefit)
Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7 (U.S. 1993) (private placement reimbursement framework under IDEA)
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007) (preponderance-of-the-evidence standard on review of administrative record)