M.W. ex rel. S.W. v. New York City Department of Education
2013 U.S. App. LEXIS 15328
| 2d Cir. | 2013Background
- M.W., a high‑functioning autistic second grader with behavioral and speech/motor needs, required a full‑time paraprofessional and related therapies; his parents placed him at a private Montessori school (Luria) for 2010–2011 and sought DOE tuition reimbursement after rejecting the DOE IEP.
- The June 10, 2010 IEP recommended placement in a general education classroom with integrated co‑teaching (ICT) (12:1 maximum IEP students), a full‑time behavioral paraprofessional, and related services (speech, OT, PT, counseling). It included a behavioral intervention plan (BIP) but no functional behavioral assessment (FBA) and omitted parental counseling as a listed service.
- Parents filed a due‑process complaint; after a 12‑day hearing, an Impartial Hearing Officer (IHO) granted reimbursement, finding procedural defects (no FBA, no parental counseling, and 10‑ vs. 12‑month program issue) and that Luria was appropriate.
- The State Review Officer (SRO) reversed the IHO, finding the BIP adequately described and addressed M.W.’s behaviors despite no FBA, that parental counseling omission did not deny FAPE given the mother’s background and available school supports, and that ICT in a general education setting with supports was not overly restrictive.
- District Court affirmed; on appeal the Second Circuit reviewed de novo but deferred to the SRO where her opinion was better reasoned, and affirmed the denial of tuition reimbursement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission of an FBA and a deficient BIP procedurally denied FAPE | Parents: Lack of FBA rendered BIP inadequate and impeded decision‑making | DOE: IEP and BIP sufficiently identified behaviors and provided strategies and supports (paraprofessional, collaboration) | Held: No FAPE denial — SRO properly found BIP adequate despite no FBA |
| Whether omission of parental counseling denied FAPE | Parents: State regulation requires parental counseling for autistic students; omission harmed implementation | DOE: Mother is a trained special‑ed teacher, school offered workshops, and BIP promoted collaboration — so no substantive harm | Held: No FAPE denial — SRO reasonably concluded omission did not deprive M.W. of FAPE |
| Whether SRO improperly relied on impermissible retrospective testimony | Parents: SRO used retrospective promises to fill IEP gaps (impermissible) | DOE: SRO relied on contemporaneous record and explained IEP strategies; allowed explanation but not material alteration | Held: No improper retrospection — SRO’s analysis was within allowed explanatory testimony |
| Whether ICT placement (with up to 12 IEP students) and 10‑month program were substantively inappropriate / overly restrictive (LRE) | Parents: ICT class with many IEP students was effectively segregated and more restrictive than necessary; also needed 12‑month year | DOE: ICT is a service in a general education environment; placement tailored to M.W.’s needs; 10‑month program was reasonable | Held: No — SRO correctly found ICT appropriate LRE and 10‑month program did not deny FAPE; overall IEP substantively adequate |
Key Cases Cited
- R.E. v. N.Y. City Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012) (framework for procedural/substantive IDEA review and limits on retrospective justification)
- M.H. v. New York City Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012) (standard of review and deference to administrative officers)
- A.C. ex rel. M.C. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165 (2d Cir. 2009) (FBA omission analysis and deference to administrative expertise)
- Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993) (parents may unilaterally place child in private school and seek reimbursement)
- Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985) (Burlington/Carter test for tuition reimbursement)
- Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998) (LRE preference and standard for meaningful education)
- P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. 2008) (two‑prong LRE test balancing mainstreaming preference with appropriate education)
- Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 (2d Cir. 2003) (deference to administrative determinations on educational methodology)
- T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247 (2d Cir. 2009) (summary judgment as a procedural vehicle for IDEA administrative review)