530 F. App'x 81
2d Cir.2013Background
- K.L., a child with severe autism, had an IEP developed in March 2009 recommending classification as autistic, placement in a 6:1+1 special class, a 1:1 crisis-management paraprofessional, extensive related services (speech, OT, PT) multiple times per week, a 12-month program, adapted PE, and a BIP addressing attention, mouthing/shredding, and aggression.
- K.L.’s parents placed her in private school for the 2009–10 year and sought reimbursement, claiming the District’s IEP failed to provide a FAPE (insufficient evaluation, lack of a proper 1:1 health paraprofessional, inadequate goals, lack of FBA/BIP, parental counseling, methodology, and safety concerns).
- An impartial hearing officer (IHO) awarded reimbursement for tuition and transportation; the State Review Officer (SRO) reversed, finding the IEP adequate on its face and that 1:1 paraprofessional support plus related services provided a reasonable prospect of educational benefit.
- The district court affirmed the SRO, rejecting parents’ challenges about shredding behavior, assessment/assessment methods, teaching methodologies, parental participation and counseling, adequacy of instruction/placement, and untimely safety claims.
- On appeal, the Second Circuit affirmed, deferring to the SRO’s reasoned conclusions and holding that the written IEP — read on its own terms and supported by permissible explanatory evidence — was reasonably calculated to provide educational benefit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the March 2009 IEP provided a FAPE | IEP omitted needed evaluations, specific methods, a proper 1:1 health paraprofessional, adequate goals, FBA/BIP, parental training, and safety safeguards; thus no FAPE | IEP on its face provided appropriate classification, services, 1:1 crisis aide, BIP, and related services sufficient to offer meaningful benefit | IEP was substantively adequate; District offered a FAPE; judgment affirmed |
| Use of retrospective testimony at hearing | Parents argued SRO/IHO improperly relied on after-the-fact testimony that rehabilitated a deficient IEP | District argued that permissible testimony may explain how IEP would operate and SRO relied primarily on IEP’s terms and permissible evidence | Court allowed explanatory evidence but rejected reliance that would effectively amend the IEP; any retrospective evidence did not undermine SRO’s conclusion |
| Need for an FBA/formal BIP | Parents contended absence of FBA/BIP denied FAPE | District/SRO argued the BIP and IEP sufficiently identified and prescribed management for problem behaviors | Absence of a formal FBA did not deny FAPE where the IEP/BIP adequately addressed behaviors |
| Parental counseling and participation | Parents argued lack of parental training and insufficient involvement in placement decisions undermined the IEP | District noted parent was on the team; parental counseling is required by state law but omission from IEP does not necessarily deny FAPE | Parental counseling omission did not amount to denial of FAPE; parent participation was adequate |
Key Cases Cited
- Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007) (federal review of state IDEA decisions is limited and deferential)
- M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012) (IEP must be reasonably calculated to enable progress but need not maximize potential)
- R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012) (retrospective testimony cannot be used to rehabilitate a deficient IEP, though testimony explaining an IEP is permissible)
- T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412 (2d Cir. 2009) (district’s failure to involve parents in choosing a specific school does not necessarily violate IDEA)