K.M. v. New York City Department of Education, 1:13-cv-07719

Background

L.N., an 11‑year‑old with autism, had attended McCarton (private school with 1:1 ABA‑oriented programming) for nine years and was placed by DOE on a proposed 2011–12 IEP in a year‑round 6:1:1 special class at P188M with a dedicated 1:1 behavior management paraprofessional and related services.
Parents rejected the IEP, unilaterally kept L.N. at McCarton, and sought tuition reimbursement; they raised procedural and substantive objections including late delivery of the IEP, failure to perform an FBA, an inadequate BIP, lack of parental counseling in the IEP, summer relocation of the school site, and that L.N. required 1:1 teacher instruction.
An IHO found DOE denied a FAPE and awarded full tuition reimbursement to the Parents, emphasizing that DOE adopted McCarton data but rejected its one‑to‑one instructional approach.
The SRO reversed the IHO, finding DOE offered a FAPE: the 6:1:1 class plus a 1:1 behavior paraprofessional and related services were substantively adequate; procedural defects (FBA, BIP, timing, parent counseling) did not deprive L.N. of a FAPE.
The Parents appealed to federal court; Magistrate Judge Maas recommended granting DOE summary judgment and denying Parents’ motion, deferring to the SRO’s thorough analysis and finding no prejudicial procedural or substantive violation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of IEP delivery / IEP in effect at start of year	Late mailing (July 1) denied Parents meaningful participation and informed consent	FNR and CSE meeting provided notice before school start; Parents participated; no prejudice	SRO/ Court: Late mailing not fatal; Parents received FNR and participated, so no denial of FAPE
Failure to conduct FBA / adequacy of BIP	Lack of formal FBA and missing baseline data made BIP inadequate and denied FAPE	Team used McCarton reports and observations; BIP identified behaviors, triggers, and strategies; omission technical, not prejudicial	SRO/ Court: Procedural violation but not resulting in loss of educational opportunity; no denial of FAPE
Recommended placement (6:1:1 + 1:1 paraprofessional vs 1:1 teacher/ABA)	L.N. needed continuous 1:1 teacher ABA instruction; 6:1:1 would not allow learning or generalization	6:1:1 with dedicated behavioral paraprofessional and related services could provide 1:1 prompting and meet needs; DOE need not provide "best" setting	SRO/ Court: Substantively adequate; deference to SRO on educational policy; no FAPE denial
School site relocation / summer construction	P188M being under construction deprived L.N. of an actual school placement for summer 2011	Temporary relocation to nearby P15M could implement IEP services; location not required to be a specific brick‑and‑mortar in IEP	SRO/ Court: Change of building not a substantive violation; IEP could be implemented at alternate site

Key Cases Cited

Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195 (2d Cir. 2002) (IEP is the centerpiece of IDEA)
Honig v. Doe, 484 U.S. 305 (U.S. 1988) (context on IDEA objectives)
Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211 (2d Cir. 2014) (allocation of burdens in NY unilateral placement cases)
Sch. Comm. of Town of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359 (U.S. 1985) (tuition reimbursement framework)
Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7 (U.S. 1993) (Burlington/Carter tuition reimbursement standard)
Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372 (2d Cir. 2014) (deference to administrative findings and burden allocation)
Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 (2d Cir. 2005) (IEP must be in effect at school year start; procedural rules)
R.E. v. New York City Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012) (limits on retrospective testimony and deference factors)
Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (U.S. 1982) (independent review standard; FAPE requires meaningful progress)
Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998) (procedural violations can implicate substantive rights)
T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412 (2d Cir. 2009) (FBA/BIP analysis and substantive adequacy standard)