L.O. ex rel. K.T. v. New York City Department of Education, 2016 U.S. App. LEXIS 9239

Background

K.T., an autistic student with significant behavioral and communication deficits, attended a 6:1:1 special class in NYC and had IEPs dated Dec. 2009, Dec. 2010, and Mar. 2011 covering school years 2009–2012.
L.O. (mother) filed a due process complaint alleging multiple procedural and substantive IDEA violations and that the IEPs denied K.T. a FAPE for 2009–2012; administrative officers (IHO and SRO) and the District Court upheld the DOE; the Second Circuit reversed.
Key procedural defects found by the Second Circuit: no record that the CSE reviewed evaluative data when drafting the IEPs; no functional behavior assessments (FBAs) performed before drafting BIPs; March 2011 IEP lacked an attached BIP; speech‑language services were inadequate in frequency and individualization (Dec. 2009 violated then‑existing NY rule).
The court held the individual violations were serious (especially absence of evaluative review, FBAs, and inadequate speech services), and that the violations cumulatively denied K.T. a FAPE for each challenged year.
The case was remanded for the district court to determine appropriate equitable relief/compensatory remedies, with guidance that relief must be appropriate but constrained by K.T.’s age (turned 21 in Oct. 2016).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the CSE reviewed evaluative data when drafting IEPs	DOE failed to show CSE reviewed evaluations; lack of review violated §1414 and denied FAPE	CSE relied on available evaluative materials; even if procedure flawed, IEPs were consistent with records and provided FAPE	Failure to document which evaluations were reviewed was a serious procedural violation; though SRO/District found consistency, Court held omission undermined ability to review and was a serious error
FBAs and BIPs	DOE created BIPs without FBAs; omission prevented identifying root causes and denied FAPE	BIPs described behaviors and management strategies; absence of FBA did not necessarily deny FAPE	Failure to conduct FBAs for behavior that impeded learning (and missing BIP in Mar 2011) was a serious procedural violation that impaired substantive review and contributed to FAPE denial
Speech‑language services adequacy	Twice‑weekly 30‑minute group sessions were insufficient given K.T.’s functioning; Dec 2009 IEP violated then‑applicable NY regulation and later IEPs repeated inadequate programming	After Dec 2010 regulation change, DOE argued services met current rule and IEPs were appropriate; teacher testimony showed in‑class language support	Dec 2009 IEP violated state regulation (frequency and group size); retrospective testimony about extra in‑class services is barred; speech services across IEPs were not reasonably calculated to yield progress and were a serious procedural/substantive defect
Cumulative procedural violations and relief	Multiple procedural errors cumulatively deprived K.T. of FAPE for 2009–2012; seek compensatory relief	DOE urged errors were formal and did not deny FAPE; administrative findings justified deference	Court found cumulative effect of violations (no evaluative review, no FBAs, inadequate speech services, missing parental counseling in IEPs, omitted goals) denied FAPE; remanded to district court to fashion appropriate equitable relief

Key Cases Cited

R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012) (framework for evaluating IEP adequacy and role of FBAs/BIPs)
M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131 (2d Cir. 2013) (standard of review for IDEA administrative findings)
M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012) (deference to reasoned administrative findings)
Bd. of Educ. v. Rowley, 458 U.S. 176 (U.S. 1982) (IEP must be reasonably calculated to confer educational benefit)
Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (U.S. 1985) (equitable relief and scope of remedies under IDEA)
Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) (district court discretion in crafting IDEA relief)
Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478 (2d Cir. 2002) (compensatory education as available remedy)
Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998) (procedural compliance with IDEA often ensures substantive content of IEP)