526 F. App'x 135
2d Cir.2013Background
- S.K., born Oct 2003, diagnosed with autism in 2006; attended preschool with 8:1:3 staffing and group SLT; received ABA privately.
- In March 2008 CSE met to craft IEP for 2008-2009; IEP proposed 6:1:1 classroom with limited group speech therapy and no ABA; no explicit 1:1 services.
- Parents filed a due process demand May 2008 alleging IEP inadequacy and seeking reimbursement for private school tuition for 2008-2009.
- IHO found denial of FAPE; SRO reversed, finding adequate language services, counseling, and no need for FBA/BIP; district court adopted Magistrate’s broader inadequacy findings.
- Between district court ruling and appeal, decisions in M.H. and R.E. refined standard of review and consideration of retrospective testimony; court affirmed dismissal of DOE arguments and ordered reimbursement.
- Court held IEP substantively inadequate for insufficient 1:1 services and for not meeting regulatory speech therapy requirements; private placement tuition reimbursement warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the IEP for 2008-2009 a FAPE? | S.K. needed substantial 1:1 services and ABA; IEP failed to provide required speech and related services. | SRO properly found adequate speech therapy and parent training; IEP overall sufficient for FAPE. | IEP inadequate; 1:1 services required; tuition reimbursement appropriate. |
| May retrospective testimony justify the IEP’s adequacy? | Retrospective evidence cannot justify an IEP; design must be evaluated prospectively. | Some retrospective testimony can inform the adequacy of services listed in the IEP within limits. | Retrospective testimony cannot bolster the IEP's adequacy; removal supports finding of inadequacy. |
| Should reimbursement for private placement be ordered? | Private placement necessary to provide meaningful educational benefit and ABA. | Public placement could be adjusted within IDEA framework; no full reimbursement warranted. | Equities favor full tuition reimbursement for private placement. |
Key Cases Cited
- M.H. v. New York City Dept. of Educ., 685 F.3d 217 (2d Cir. 2012) (deference to SRO; appellate review is more than de novo but less than clear error)
- R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167 (2d Cir. 2012) (retrospective testimony limitations; Burlington/Carter framework guidance)
- Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007) (educational benefit standard; services reasonably calculated to enable progress)
- Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006) (burden framework for determining adequacy of school district placement)