Plaintiffs-Appellants C.F. and his parents R.F. and G.F. (collectively “Plaintiffs”) appeal from the October 28, 2011 opinion and order of the United States District Court for the Southern District of New York (Laura Taylor Swain, J.), seeking, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., reimbursement of school placement expenses for the 2008-2009 school year. R.F. and G.F. unilaterally placed their son C.F., a child with autism, at the McCarton School (“McCarton”), after which they sought reimbursement by filing a due process complaint with the New York City Department of Education (the “Department”). On June 14, 2010, the Impartial Hearing Officer (“IHO”) granted the request, but, on September 8, 2010, the State Review Officer (“SRO”) reversed the IHO’s decision. The district court affirmed the SRO, and Plaintiffs now appeal. Upon review, we hold that Plaintiffs are entitled to tuition reimbursement under the Burlington/Carter Test.
BACKGROUND
I. Legal Background
States that receive funding under the IDEA must provide all disabled children
“The IDEA requires that an IEP be reasonably calculated to enable the child to receive educational benefits.” R.E.,
Additionally, both federal and state law impose certain procedural requirements on Committees on Special Education. Relevant to this appeal are the following requirements:
For students who engage in behaviors that impede learning, Committees shall conduct, as necessary, functional behavioral assessments that determine why the student engages in such behaviors and how the behaviors relate to the environment. NYCRR §§ 200.1(r), 200.4(b)(l)(v), 200.22(a).
For students who in engage in behaviors that impede learning despite consistent interventions, Committees shall consider the development of a “behavioral intervention plan,” based on the functional behavioral assessment, that creates abaseline and performance criteria to measure improvement in behavior and identifies intervention strategies. Id. §§ 200.1(mmm), 200.22(b); see also 20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)®.
For students with autism, Committees shall include provisions for parent counseling and training. NYCRR §§ 200.1(kk); 200.13(d).
Committees “shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.” 29 U.S.C. § 1414(e); see also 34 C.F.R. § 300.501(c)(1).
“If a state fails in its obligation to provide a free appropriate public education to a handicapped child, the parents may enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the state.” Frank G.,
The Supreme Court has established the three-pronged Burlington/Carter Test to determine eligibility for reimbursement, which looks to (1) whether the school district’s proposed plan will provide the child with a free appropriate public education; (2) whether the parents’ private placement is appropriate to the child’s needs; and (3) a consideration of the equities. Id. In order to challenge an IEP, parents must first file a “due process complaint” listing the alleged deficiencies. 20 U.S.C. § 1415(b)(7)(A). If, after a 30-day resolution period, the deficiencies remain, the parents and school district shall enter into an “impartial due process hearing” as provided by state law. Id. § 1415(f)(1). Under New York law, the parties first proceed before an IHO, who is subject to review by an SRO who may affirm or modify the IHO’s order. N.Y. Educ. Law § 4404(1), (2). “Either party may then bring a civil action in state or federal court to review the SRO’s decision.” R.E.,
II. C.F.
C.F., now eleven years old, is autistic and presents with significant interfering behaviors including maladaptive and self-stimulatory behaviors. Before the 2006-2007 school year, C.F. was on a home-based applied behavioral analysis (“ABA”) program.
Neither the Committee nor the IEP specified the school placement site. How
On June 27, 2008, C.F.’s parents sent a letter rejecting the proposed placement. C.F. was enrolled in McCarton for the 2008-2009 school year and received after-school 1:1 ABA therapy. On June 30, 2008, Plaintiffs filed the required due process complaint, the relevant portion of which is reproduced below in a footnote.
III. Case History
Before the IHO, the Department put forth four witnesses. The first, Department psychologist Check, testified to the following: She had developed C.F.’s behavioral intervention plan after the Committee meeting, based on reports from McCarton and C.F.’s treatment providers. She did not develop a functional behavioral assessment. The behavioral intervention plan included target behaviors and supports to remediate behaviors. It did not, however, identify supports for specific behaviors. Check agreed that the plan was “vague, based on the standards in the field,” but stated that it would be made more specific once C.F. was placed. Finally, she stated that while the Committee recommended that C.F. attend a 6:1:1 program, it was her understanding that some Department classrooms utilized 1:1 ABA therapy.
The second witness, Denise Velasquez, the parent coordinator at PS 169, testified about her duties assisting parents with autistic students. She testified that she conducted workshops for parents with autistic children, and that such workshops were usually offered monthly, with eight total for the year.
The third witness, llene Halpern, was the assistant principal at PS 169 at PS 102, C.F.’s proposed placement. She testified that, while C.F.’s proposed placement started in July, the site was not ready until September. Prior to that time, PS 169
The final Department witness, Stephanie Silverman, a special education teacher at PS 169, testified about her classroom. She stated that she had previously taught in a 6:1:1 classroom that used ABA as well as another teaching method, TEACCH.
Plaintiffs put forth eight witnesses. Five were affiliated with McCarton. First, Panos Rekoutis, acting director of occupational therapy at McCarton, testified that the severity of C.F.’s maladaptive behav-. iors required individualized occupational therapy sessions, and that C.F. was receiving five 45-minute sessions per week at McCarton. Adina Haims, a speech and language pathologist at McCarton, testified that C.F. required individualized speech and language therapy due to his lack of attention and focusing capacity, and that he received five 60-minute speech therapy sessions weekly at McCarton. She further testified that 30-minute sessions would not give C.F. enough time to control his behaviors. Jessica Pangretic, a speech therapist at McCarton, testified to the contents of C.F.’s speech therapy sessions, and also testified that 30-minute speech therapy sessions would be inappropriate. Ivy Feldman, education director at McCarton, testified that, due to C.F.’s maladaptive behaviors, he required a 1:1 learning environment, and that a 6:1:1 setting would be inappropriate. Marva Pearl, a teacher at McCarton, testified as to C.F.’s improvement in behavior in a 1:1 ABA classroom during the 2007-2008 and 2008-2009 school years.
Additionally, G.F., C.F.’s mother, stated that her son had made meaningful progress while at McCarton, including improvements with language and fine motor skills. She also testified that C.F. received after-school speech and language and ABA services. Jenifer Clark, behavior consultant and senior supervising therapist for the ABA services, testified that C.F. would not make meaningful progress in a 6:1:1 classroom. She also testified that C.F. needed both home and school services. Finally, R.F., C.F.’s father, testified that C.F. had made progress at McCarton and that he did not believe that his son could make meaningful progress in a 6:1:1 class. He stated that, after the family moved to New York City, he had asked whether the City had programs akin to McCarton’s, and further inquired whether there was an option by which C.F. could remain in McCarton and receive financial assistance, but he received no definitive response. He testified that, after the final notice of recommendation, he attempted to contact C.F.’s placement school through phone calls and letters, but was unable to do so. Finally, R.F. testified that, after the Committee meeting, he had enrolled C.F. in McCarton for the 2008-2009 school year.
IHO Nancy Lederman held that Plaintiffs were entitled to reimbursement under
The Department appealed to SRO Paul Kelly, who reversed the IHO’s decision. The SRO held that, with regard to step one of Burlington/Carter, the Department had provided C.F. with a free appropriate public education. He held that the issue of C.F.’s school placement site was foreclosed because Plaintiffs failed to challenge it in the due process complaint. The SRO held that the functional behavioral assessment and behavioral intervention plan were appropriate in light of the testimony of Department school psychologist Check and special education teacher Silverman that C.F. would have received a more complete plan at his placement site. With respect to the dispute over the 6:1:1 class placement, the SRO focused on C.F.’s behavioral needs and goals, as described in the various reports considered by the Committee. The SRO placed particular emphasis on the testimony of special education teacher Silverman, who testified as to how she would address C.F.’s behavioral goals and her practice of providing 1:1 instruction as needed. Finally, based on the testimony of Department parent coordinator Velasquez as to services provided, the SRO held that the Department provided sufficient parent training and counseling. Because the SRO found for the Department in step 1, it declined to reach the other steps of Burlington/Carter.
Plaintiffs appealed to the district court, which affirmed the SRO’s decision. C.F. v. N.Y.C. Dep’t of Educ., No. 11 Civ. 00157CLTS),
DISCUSSION
Plaintiffs sue seeking tuition reimbursement for the 2008-2009 school year under the IDEA. Their claim is governed by the Burlington/Carter Test, which looks to (1) whether the school district’s proposed plan will provide the child with a free appropriate public education; (2) whether the parents’ private placement is appropriate to the child’s needs; and (3) a consideration of the equities. Frank G.,
On appeal, Plaintiffs allege that the Department denied C.F. a free appropriate public education because it failed to include C.F.’s parents in school site selection; failed to make express provisions for parent counseling and training; failed to develop a functional behavioral assessment or adequate behavioral intervention plan; and failed to offer an individualized placement that addressed C.F.’s demonstrated need for a 1:1 classroom. They also argue that McCarton was an appropriate private placement and that the equities favor them.
Upon review, we hold that, under Burlington/Carter, C.F.’s parents are entitled to tuition reimbursement, and we therefore vacate the order of the district court and remand for further proceedings consistent with this opinion.
I. The Department’s IEP
A. Plaintiffs’ Due Process Complaint
The first element of the Burlington/Carter Test looks to whether the school district’s proposed plan will provide the child with a free appropriate public education. Before reaching the merits of Plaintiffs’ allegations in that regard, we must consider whether any issues are foreclosed from review, as both the SRO and district court held that some of the allegations were foreclosed because they were not pled in the due process complaint.
As explained above, parents must file a due process complaint in order to allege deficiencies in an IEP. 20 U.S.C. § 1415(b)(7)(A). After the filing of such a complaint, the Department has a 30-day resolution period in which to remedy any deficiencies. Id. § 1415(f)(1). The Department cannot be expected to resolve problems of which it is unaware. Accordingly, “[t]he parents must state all of the
We hold that the waiver rule is not to be mechanically applied. The key to the due process procedures is fair notice and preventing parents from “sandbag[ging] the school district” by raising claims after the expiration of the resolution period. See R.E.,
Here, in their due process complaint, Plaintiffs provided fair notice to the Department of their claim concerning the lack of availability of the proposed site prior to September. They alleged in their due process complaint that a “specific and identifiable placement was not timely and properly developed and determined at the time of the IEP meeting.” The allegation that the Department had failed to provide a specific and identifiable placement in a timely manner surely encompasses the claim that the placement was not timely because the designated school site was unavailable until some two months after the placement was to begin. Moreover, the issue of the unavailability of the proposed site until September was raised at the hearing — by one of the Department’s witnesses. It was only then that Plaintiffs learned of the delayed availability of the placement. That claim, therefore, was properly raised before both the SRO and the district court.
The district court also held that Plaintiffs’ allegation that the Department failed to consider a 1:1 staffing ratio, instead considering only a 6:1:1 ratio, was foreclosed. This too was error. With respect to this claim, both the IHO and SRO reached the issue on the merits, giving us a record for review. Additionally, the dispute over the staffing ratio directly relates to C.F.’s maladaptive behaviors, which are at the heart of this dispute. The due process complaint plainly alleged that the Department failed to appropriately develop plans for C.F.’s behavior. In addition, the proposed solution was a recommendation that C.F. continue at McCarton, where he would remain in a 1:1 placement. The Department, which relied on McCarton records in making its IEP determinations, was aware of this. Accordingly, the staffing ratio issue is properly considered by the federal courts.
B. The Merits of Plaintiffs’ Claims
The first element of the Burlington/Carter Test has two components. “At the first step, courts examine whether there were procedural violations of the IDEA, namely, whether the state has complied with the procedures set forth in the IDEA.” R.E.,
Here, Plaintiffs allege three procedural violations: that the Department denied C.F. a free appropriate public education because it failed to include C.F.’s parents in school site selection; that it failed to develop a functional behavioral assessment or adequate behavioral intervention plan; and that the Department failed to make express provisions for parent counseling and training. Substantively, they allege that the Department ignored uniform evidence that C.F. required a 1:1 placement and instead assigned C.F. to a 6:1:1 placement. Our review is guided by our recent case, R.E., decided after the district court issued its decision in this litigation. In the consolidated appeals in R.E., we considered the appropriateness in IDEA litigation of allowing school districts to supplement an IEP with “retrospective testimony” of services that were not listed in the IEP.
Plaintiffs first allege that the Department erred in failing to include C.F.’s parents in site selection. The record shows that the specific school site was not discussed by the Committee or included in the IEP. Additionally, the recommended placement site, PS 169 at PS 102, was not available until September, despite the fact that C.F.’s placement began in July. The IDEA requires school districts to “ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.” 29 U.S.C. § 1414(e) (emphasis added); see also 34 C.F.R. § 300.501(c)(1). However, we have interpreted the term “educational placement” to refer to the “general educational program—such as the classes, individualized attention and additional services a child will receive—rather than the ‘bricks and mortar’ of the specific school.” T.Y. v. N.Y.C. Dep’t of Edue.,
Next, Plaintiffs contend that the Department erred in failing to include parent counseling or training in the IEP. New York law requires school districts to include provisions for parent counseling and training. NYCRR §§ 200.1(kk); 200.13(d). Here, the Department failed to do so. Because the IEP must be evaluated prospectively, without recourse to retrospective testimony, the Department cannot cure such violations by offering
Finally, Plaintiffs allege that the Department failed to develop an appropriate functional behavioral assessment or behavioral intervention plan, as required by state law. See NYCRR §§ 200.1(r); 200.1(mmm); 200.4(b)(1)(v); 200.22(a); 200.22(b). To the extent that Plaintiffs’ claim rests on the Department’s failure to produce a functional behavioral assessment, the claim fails. While the omission of a functional behavioral assessment “cause[s] us to take particular care to ensure that the IEP adequately addresses the child’s problem behaviors,” the production of such an assessment is not required by the IDEA. M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ.,
The focus of our review is the behavioral intervention plan developed by the Department. “The IDEA ... requires a school district to consider the use of positive behavioral interventions and supports, and other strategies when a child’s behavior impedes learning.” Id. (internal quotation marks omitted). “Failure to conduct [a functional behavior assessment], therefore, does not render an IEP legally inadequate under the IDEA so long as the IEP adequately identifies a student’s behavioral impediments and implements strategies to address that behavior.” Id. Here, we hold that the Department failed to adequately create and implement behavioral strategies in its behavioral intervention plan. The plan failed to match strategies with specific behaviors, instead simply listing behaviors and strategies. Department psychologist Check admitted that the plan was vague compared to standards in the field. The failure to produce an appropriate behavioral intervention plan was the procedural violation. The lack of a functional behavioral assessment is relevant only to the extent that it led to this failure.
Before the IHO, the Department offered evidence, based on testimony by Check and by special education teacher Silver-man, that a functional behavioral assessment and more specific behavioral intervention plan would be created in C.F.’s placement classroom. However, such evidence cannot be offered retrospectively to cure errors in an IEP or its documents. See R.E.,
Having considered Plaintiffs’ allegations of procedural violations, we hold
Plaintiffs allege that the Department’s IEP is substantively inadequate because the Department failed to consider a 1:1 ratio placement classroom, despite overwhelming evidence that C.F. required one, and instead placed C.F. in a 6:1:1 ratio classroom. We agree and hold that the failure to consider a 1:1 classroom resulted in the denial of a free appropriate public education.
We make this determination for several reasons. First, before the IHO, all witnesses familiar with C.F. testified that he required a 1:1 placement. This testimony went unrebutted by Department witnesses, except for testimony by Department special education teacher Silverman that C.F. would fit in her classroom. Second, while Check and Silverman testified that placement classrooms incorporated 1:1 ABA principles, this was, as discussed above, improper retrospective testimony. Finally, the issue of classroom placement ratio cannot be separated from one of the procedural violations discussed above, namely, the Department’s failure to conduct an appropriate functional behavioral assessment or behavioral intervention plan. Witnesses who recommended a 1:1 placement did so out of concerns relating to C.F.’s maladaptive behaviors. The failure to consider such concerns is related to the failure to properly draw up a plan to account for those behaviors.
The IEP’s substantive inadequacy, therefore, is rooted in the testimony and reports indicating that C.F.’s behavioral needs required a 1:1 placement. As the IHO found, such instruction should have been considered as a necessary component of any plan “reasonably calculated to enable the child to receive educational benefits.” R.E.,
II. The Plaintiffs’ Unilateral Placement at McCarton
C.F.’s parents’ unilateral placement at McCarton must be appropriate in order for them to be entitled to reimbursement. While the private placement does not need to meet the specific standards of the IDEA or state law, “the same considerations and criteria that apply in determining whether the School District’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.” Frank G.,
Neither the SRO nor the district court reached this issue. We therefore look to the opinion of the IHO. See M.H.,
III. A Consideration of the Equities
Finally, in order to be entitled to reimbursement, “equitable considerations relating to the reasonableness of the action taken by the parents,” must also favor Plaintiffs. Frank G.,
CONCLUSION
For the foregoing reasons, the order of the district court is VACATED and this case is REMANDED. On remand, the district court is directed to enter judgment in the appropriate amount in favor of Plaintiffs.
Notes
. The Test is named after the Supreme Court cases that established it. See Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter,
. All citations to New York statutes are to McKinney’s Consolidated Laws of New York Annotated (West 2013).
. ABA is the use of principles and techniques in order to encourage useful behaviors and discourage harmful ones.
. The due process complaint alleged, inter alia:
A specific and identifiable placement was not timely and properly developed and determined at the IEP meeting, with the active involvement of [C.F.’s] parents, as required by statute. The IEP merely reflects the generic recommendation "special class in a specialized school”;
Although [C.F.] is diagnosed with an autism spectrum disorder, the [Department] failed to make provision for appropriate, individualized parent training and counseling, in violation of the [Commissioner of Education’s] express regulations;
Although [C.F.] presents with a variety of interfering behaviors, the [Department] failed to make any provision at the IEP for the appropriate development of a Functional Behavioral Assessment (“FBA”) or appropriate Behavior Intervention Plan ("BIP”) that is supposed to be based on the results of such an assessment' — the so-called BIP attached to [C.F.’s] proposed IEP is inappropriate and inadequate[J
The complaint requested that C.F. continue his education at McCarton and that his parents be provided with parent training and counseling.
. TEACCH stands for Treatment and Education of Autistic and Related Communication-Handicapped Children.
. We need not here decide whether this state-imposed burden also applies during the federal suit. See R.E.,
. In our recent decision in M.H. we gave several examples:
By way of illustration, determinations regarding the substantive adequacy of an IEP should be afforded more weight than determinations concerning whether the IEP was developed according to the proper procedures. Decisions involving a dispute over an appropriate educational methodology should be afforded more deference than determinations concerning whether there have been objective indications of progress. Determinations grounded in thorough and logical reasoning should be provided more deference than decisions that are not. And the district court should afford more deference when its review is based entirely on the same evidence as that before the SRO than when the district court has before it additional evidence that was not considered by the state agency.