M.W., BY HIS PARENTS, S.W. AND E.W., Plaintiffs-Appellants, –v.– NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellee.
Docket No. 12-2720-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
July 29, 2013
August Term, 2012; Argued: March 13, 2013
Before: WALKER, WESLEY, DRONEY, Circuit Judges.
Appeal from the order of the United States District Court for the Eastern District of New York (Weinstein, J.), entered on June 15, 2012, granting summary judgment for Defendant-Appellee New York City Department of Education and denying tuition reimbursement for Plaintiffs-Appellants after their unilateral placement of their child into a private school.
AFFIRMED
SUZANNE K. COLT, (Pamela Seider Dolgow, John Buhta, Gail Eckstein, G. Christopher Harris, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York City Law Department, New York, NY, for Defendant-Appellee.
WESLEY, Circuit Judge:
S.W. (“Dad“) and E.W. (“Mom“) enrolled M.W., their autistic child, in a private school after concluding that the New York City Department of Education‘s (“DOE“) individualized education program failed to provide him with a free and appropriate public education as required by the
Background
I. The Legal Framework
The IDEA requires New York state to “provide disabled children with a free and appropriate public education (‘FAPE‘).” R.E. v. N.Y. City Dep’t of Educ., 694 F.3d 167, 174-75 (2d Cir. 2012) (citation omitted). Accordingly, the DOE, through a Committee on Special Education (“CSE“), must produce, in writing, an individualized education program (“IEP“), see
To begin the tuition-reimbursement process, a parent must first file a due-process complaint which triggers an administrative-review process that begins with a hearing in front of an impartial hearing officer (“IHO“). See
II. Statement of Facts
A. M.W.
M.W. is an autistic boy with Pervasive Developmental Disorder, Attention Deficit Hyperactivity Disorder, certain speech and language disorders, and fine and gross motor deficits. Despite these setbacks, M.W. has an average IQ; he is bright and can learn. His autism and developmental disorders, however, present behavioral and social-emotional problems that have resulted in academic under-performance and have required speech, occupational, and physical therapies. M.W. also requires direct, hands-on supervision during the school day from a paraprofessional, who helps him stay focused when his attention strays and calm in the event of a behavioral crisis.
After the Parents rejected the IEP for the 2009-2010 school year, M.W. attended Luria, a Montessori school, where he had the support of his full-time paraprofessional in a classroom designed for typically developing students. On January 30, 2010, Mom sent an email to Luria indicating a desire to re-enroll M.W. for the 2010-2011 school year before the CSE developed the contested IEP subject to this appeal. Shortly thereafter, Mom submitted an application to Luria which included a tuition contract and down payment to hold M.W.‘s spot.
Luria teachers do not use formal assessments to track progress and rely on “a lot [of] note-taking and observation” to track the child‘s progress. See Tr. 937. Though M.W. progressed socially during the 2009-2010 school year, he continued to have “a lot of behavioral issues that [we]re getting in the way of his progress” through the 2010-2011 school year. Id. at 921. When these behavioral issues disrupted the class, his paraprofessional removed him from the classroom to work with him outside, sometimes on the floor.2 Id. at 945-50.
B. M.W.‘s Individualized Education Program
On June 10, 2010, the CSE convened to develop M.W.‘s 2010-2011 IEP. The following individuals constituted the CSE: (1) Mom; (2) Sara Malasky, M.W.‘s general education teacher, who participated via telephone; (3) Chanie Graus, a school psychologist who acted as a school-district representative; (4) a special education teacher; and (5) a parent representative. M.W. was seven years old, and the IEP was for his second-grade year, 2010-2011.
The IEP described M.W. as a seven-year-old autistic child of average intelligence with Pervasive Developmental Disorder. Despite his disorders, the IEP recognized that M.W. had “made progress
The IEP recommended placement in a general education environment with integrated co-teaching (“ICT“) services with a 12:1 staffing ratio, five days a week, for a ten-month school year.3 The IEP also provided M.W. with a full-time behavioral management paraprofessional to give him one-on-one help self-regulating in times of behavioral crisis, and these other related services:
| Service | Sessions x Week | Duration | Students | |
|---|---|---|---|---|
| 1 | Counseling | 1 x week | 30 mins. | 3 |
| 2 | Occupational Therapy | 3 x week | 30 mins. | 1 |
| 3 | Physical Therapy | 2 x week | 30 mins. | 1 |
| 4 | Speech/Language Therapy | 2 x week | 30 mins. | 1 |
| 5 | Speech/Language Therapy | 1 x week | 30 mins. | 2 |
Sealed App’x 1860.
Finally, the IEP concluded that M.W.‘s “behavior seriously interfere[d] with instruction and require[d] additional adult support.” Id. 1847. Based on those conclusions, the IEP required a behavioral intervention plan (“BIP“), which was incorporated in the IEP. Id. at 1860. The BIP identified “emotional meltdowns,” “poor self-regulation,” and “poor attention” as the behavioral difficulties that impaired M.W.‘s academic progress and recommended a reward system, praise and encouragement, and positive modeling as strategies to modify those behaviors. Id. at 1862. The goal was to teach M.W. to become more attentive and focused and to better control himself when frustrated. Id. To implement those strategies, M.W.‘s teacher, paraprofessional, and the Parents were to collaborate. The BIP did not quantify data relating to the frequency of M.W.‘s “meltdowns” because Luria did not provide a functional behavior assessment (“FBA“), and the DOE did not request or develop one.
On July 1, 2010, the DOE sent a letter to M.W.‘s Parents that classified M.W. as an autistic student and recommended an ICT classroom4 at P.S. 197, the Ocean School, with the related services that the IEP recommended. Mom visited the school, decided to keep M.W. at Luria, and immediately began the administrative-review
C. Administrative Review
On July 8, 2010, the Parents filed their demand for due process and requested a hearing. The Parents subsequently amended their demands on September 29, 2010. On May 2, 2011, the Parents submitted their closing brief after 12 hearing days that took place over the entire school year. In relevant parts, the Parents argued that the IEP would have denied M.W. a FAPE because the IEP Team created a BIP without the benefit of an FBA and the IEP failed to provide parent counseling and training as a related service. The Parents also argued that the P.S. 197 placement was defective because the recommended 10-month program exposed M.W. to regression risks. Finally, the Parents argued that the IEP assigned M.W. to an overly restrictive environment.
The IHO expressly agreed with the Parents regarding the BIP, the omission of parental counseling, and the inadequacy of a 10-month program. Though the IHO mentioned the least restrictive environment requirement in passing, she made no explicit findings as to whether a general education environment with ICT services would be too restrictive.5 See Sealed App’x 2155. The IHO found Luria to be an appropriate placement and that the equities favored the Parents. Accordingly, the IHO ordered that the Parents be reimbursed, and the DOE sought review by a SRO. The SRO reversed the IHO‘s determinations and denied tuition reimbursement. Relying heavily on the SRO‘s analysis, the district court affirmed that decision, and the Parents appealed.
Discussion
I. Standard of Review and Burdens of Proof
We undergo a circumscribed de novo review of a district court‘s grant of summary judgment in the IDEA context because the “responsibility for determining whether a challenged IEP will provide a child with [a FAPE] rests in the first instance with administrative hearing and review officers.” M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 240 (2d Cir. 2012). Summary judgment in the IDEA context, therefore, is only a “pragmatic procedural mechanism for reviewing administrative decisions.” T.P. ex rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam) (internal quotation marks and citation omitted). This review “‘requires a more critical appraisal of the agency determination than clear-error review‘” but “‘falls well short of complete de novo review.‘” M.H., 685 F.3d at 244 (quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086-87 (1st Cir. 1993) (internal citations omitted)). Accordingly, our de novo review only seeks to independently verify that the administrative record supports the district court‘s determination that a student‘s IEP was adequate. See R.E., 694 F.3d at 184.
In undertaking this independent review, we are further restrained by our lack of specialized knowledge and educational expertise; “we must defer to the administrative decision [particularly where] the state officer‘s review ‘has been
Recently, we parsed the amount of deference an SRO‘s determination deserves and concluded that it “depends on the quality of that opinion.” See R.E., 694 F.3d at 189. “Reviewing courts must look to the factors that ‘normally determine whether any particular judgment is persuasive, for example, whether the decision being reviewed is well-reasoned, and whether it was based on substantially greater familiarity with the evidence and the witnesses than the reviewing court.‘” Id. at 189 (quoting M.H., 685 F.3d at 244). Where an SRO has clearly demonstrated a better command of the record and supported her conclusions through better legal and factual analysis than an IHO, we will have little difficulty deferring to the SRO‘s opinion. See id. Accordingly, an appellant seeking to have a reviewing court credit an IHO‘s determination over an SRO‘s determination would benefit from calling our attention to an SRO‘s specific errors in law, fact, or reasoning.6
II. Procedural Violations
“In determining whether an IEP complies with the IDEA, courts make a two-part inquiry that is, first, procedural, and second, substantive.” Id. at 189-90. Procedural violations warrant tuition reimbursement only if they “‘impeded the child‘s right to a [FAPE],’ ‘significantly impeded the parents’ opportunity to participate in the decision[-]making process,’ or ‘caused a deprivation of educational benefits.‘” Id. at 190 (quoting
Here, the Parents allege that the DOE committed two procedural violations: it failed to undertake an FBA in developing the BIP and it failed to include parental training and counseling in the IEP. The Parents also assert that the SRO impermissibly relied on retrospective testimony to justify those omissions.
A. Behavioral Intervention Plan
An FBA provides an “identification of [a disabled student‘s] problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior . . . and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it.”
Though the “IDEA incorporates some but not all state law concerning special education,” these regulations do not raise the IDEA bar by rendering IEP‘s developed without an FBA legally inadequate. See A.C., 553 F.3d at 172 n.1 (quoting Bay Shore Union Free Sch. Dist. v. Kain ex rel. Kain, 485 F.3d 730, 734 (2d Cir. 2007)). The IDEA only requires a school district to “consider the use of positive behavioral interventions and supports, and other strategies” when a child‘s behavior impedes learning. See id. at 172 (quoting
In A.C., we concluded that the failure to conduct an FBA did not make an IEP legally inadequate because it noted (1) the student‘s attention problems; (2) the student‘s need for a personal aide to help the student focus during class; and (3) the student‘s need for psychiatric and psychological services. A.C., 553 F.3d at 172. In R.E. we considered the effect of an FBA omission for three separate students. See R.E., 694 F.3d at 192-95. For one student, we concluded that an FBA omission did not deny a FAPE where (1) the CSE reviewed documents regarding the student‘s behavior, and (2) the IEP provided strategies to address those behaviors, “including the use of a 1:1 aide to help him focus.” Id. at 193. Moreover, we have decided that whether an IEP adequately addresses a disabled student‘s behaviors and whether strategies for dealing with those behaviors are appropriate are “precisely the type of issue[s] upon which the IDEA requires deference to the expertise of the administrative officers.” A.C., 553 F.3d at 172 (quoting Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 382 (2d Cir. 2003)) (internal quotation marks omitted).
Failure to conduct an FBA, 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. See, e.g., id. Where the IEP actually includes a BIP, parents should at least suggest how the lack of an FBA resulted in the BIP‘s inadequacy or prevented meaningful decision-making. See R.E., 694 F.3d at 189-90. For example, parents could argue that an FBA would have exposed a BIP‘s obsolete assessment of the student‘s behavioral problems or that the recommended behavior-modification strategies failed to accommodate the frequency or intensity of the student‘s behavioral problems. Here, however, the Parents summarily argue that failure to conduct an FBA made the IEP legally defective; the record belies those assertions.
As an initial matter, the IHO‘s FBA and BIP analysis consisted of a single sentence without citation to the administrative record: “Lastly, I find there was no FBA developed and the BIP was developed without parent or teacher involvement and I find the BIP was not appropriate.” IHO Decision at 28. By contrast, the SRO provided an in-depth, four-page discussion of the issue replete with legal and factual
The SRO concluded that the BIP accurately described the behaviors that interfered with learning: “emotional meltdowns,” poor self-regulation, and poor attention. In support of her analysis, the SRO relied upon, inter alia, the Luria progress reports, the Floor Time therapist‘s report, and Graus‘s in-class observations of M.W., all of which describe those behavioral difficulties in detail. See SRO Decision at 19 (citing Dist. Ex. 5-12). The Parents confirm the accuracy of those descriptions and do not contend that the IEP misidentified or overlooked their son‘s behavioral issues. See Parents’ Local Rule 56.1 Statement of Material Facts ¶ 5. Accordingly, we agree with the SRO‘s determination that the BIP adequately described M.W.‘s behavioral impediments.
The SRO also concluded that the BIP was consistent with the information available to the CSE and that the intervention services were adequate because they provided a broad, collaborative approach to implement specific strategies to modify those behaviors on a daily, one-on-one basis. The Parents do not contend that M.W. needed more or less attention. Additionally, the BIP recommended that M.W. be provided with a reward system, praise, encouragement, and positive modeling to learn to adjust his behavior within a collaborative support system between parent, teacher, and paraprofessional. The Parents do not attack those strategies. The Parents have simply failed to articulate a single reason why an FBA was required for a legally valid BIP.
We therefore affirm the SRO‘s determination that the “hearing record does not support the impartial hearing officer‘s determination that the lack of an FBA rose to the level of denying the student a FAPE where the IEP addressed behavioral needs.” SRO Decision at 20. As in R.E., (1) the CSE reviewed documents regarding the student‘s behavior, and (2) the IEP provided strategies to address those behaviors, including the use of a paraprofessional. R.E., 694 F.3d at 193.
B. Parental Counseling
Next, the Parents argue that the IEP‘s failure to include parental counseling denied M.W. a FAPE. To enable parents to “perform appropriate follow-up intervention activities at home,” New York requires that an IEP provide parents of autistic students training and counseling. See
parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child‘s individualized education program.”
We have previously described counseling omissions as procedural violations “less serious than the omission of an FBA” because “the presence or absence of a parent-counseling provision does not necessarily have a direct effect on the substantive adequacy of the plan.” R.E., 694 F.3d at 191. “Moreover, because school districts are required . . . to provide parent counseling, they remain accountable for their failure to do so no matter the contents of the IEP.” Id. (citing
Here, the IHO again summarily decided that parent counseling and training was required and that parent workshops that would have been provided to the Parents by the Ocean School would not give the Parents the tools necessary to perform follow-up at home. IHO Decision at 27-28. The IHO, however, did not explain those conclusions. The SRO concluded that the counseling omission did not deny M.W. a FAPE because Mom was a certified special education teacher who had received, through her own initiative, training and counseling in the therapies that M.W. had previously used, and because the public school assigned to M.W. provided training and counseling. The SRO also noted that the BIP required collaboration between paraprofessional, the Parents, and teacher in order to implement and support the recommended behavior-modification strategies.
We defer to that analysis. The Parents have not persuaded us that the parental counseling omission would deprive M.W. of FAPE. The SRO‘s analysis noted that Mom‘s experience and the supports in the BIP provide adequate assurance that M.W.‘s developmental plan and education would continue at home.
C. Retrospective Justifications
The Parents assert that the SRO routinely relied upon impermissible retrospective justifications to fill in the IEP‘s inadequacies. In R.E., we held “that retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered in a Burlington/Carter proceeding.” R.E., 694 F.3d at 186. (emphasis added). However, the case also expressly “reject[ed] . . . a rigid ‘four corners’ rule prohibiting testimony that goes beyond the face of the IEP. While testimony that materially alters the written plan is not permitted, testimony may be received that explains or justifies the services listed in the IEP.” Id. (emphasis added). For example:
[I]f an IEP states that a specific teaching method will be used to instruct a student, the school district may introduce testimony at the subsequent hearing to describe that teaching method and explain why it was appropriate for the student. The district, however, may not introduce testimony that a different teaching method, not mentioned in the IEP, would have been used.
Id. at 186-87. Here, Parents contend that the SRO impermissibly credited retrospective testimony that justified the FBA omission based on the BIP‘s broad, collaborative support strategies and how those strategies would change as the student‘s needs changed. That argument, however, misses the SRO‘s central analysis: the BIP was developed with specific goals, strategies, and supports, but the collaborative approach ensured that implementation could change as M.W.‘s needs changed and ensured that behavioral modification strategies would continue at home. That seems especially appropriate when a student‘s autism presents unique challenges each day. Accordingly, the analysis did not rely on retrospective justifications. The DOE admits that there was no FBA, and the SRO
The Parents also assert that reliance on Mom‘s educational background and the placement school‘s counseling programs retrospectively justifies the omission of parental counseling. But, as we have just stated, when the IEP suffers from a conceded procedural infirmity, we first review whether that procedural violation substantively deprived the student of a FAPE before determining whether the SRO corrected the substantive failure by impermissibly crediting future promises. In making her determination, the SRO did not conclude that the IEP‘s omission of parental counseling denied M.W. of a FAPE and that the omission was made sound by promises not contained in the IEP. Instead, the SRO concluded that the parental counseling omission did not deny M.W. a FAPE in the first instance because of the BIP‘s collaborative approach to behavior modification, Mom‘s education, and the school workshops. The SRO concluded that the Parents were equipped to manage M.W.‘s needs without New York‘s mandated counseling. Accordingly, the SRO did not rely upon impermissible retrospection and we defer to her analysis.
III. Substantive Adequacy and Least Restrictive Environment
The Parents also challenge the substantive adequacy of the IEP. “Substantive inadequacy automatically entitles the parents to reimbursement.” R.E., 694 F.3d at 190. The “state need not ‘maximize the potential of handicapped children,’ but the door of public education must be opened in a ‘meaningful way.‘” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 119 (2d Cir. 2008) (quoting Walczak, 142 F.3d at 130 (internal quotation marks omitted)). That is, the “IEP must provide the opportunity for more than only ‘trivial advancement.‘” Id.
A. Least Restrictive Environment
The
“[W]hile mainstreaming is an important objective, we are mindful that the presumption in favor of mainstreaming must be weighed against the importance of providing an appropriate education to handicapped students.” Newington, 546 F.3d at 119 (quotation marks and citation omitted). The “tension between the
We have previously used a two-pronged test to determine whether a school district has met the LRE mandate mindful of “our deferential position with respect to state educational authorities crafting educational policy” when applying it. Id. at 120. First, can the student “be satisfactorily
These two questions, however, do not adequately address M.W.‘s placement in a general education environment with integrated co-teaching services, a placement somewhere in between a regular classroom and a segregated, special education classroom. New York regulations set out the definition of integrated co-teaching.
“To enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate, specially designed instruction and supplementary services may be provided in the regular class, including, as appropriate, providing related services, resource room programs and special class programs within the general education classroom.”
N.Y. Comp. Codes R. & Regs. tit. 8 § 200.6(a)(1) . “A school district may include integrated co-teaching services in its continuum of services.”Id. at § 200.6(g) .“Integrated co-teaching services means the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students.”
Id. “The maximum number of students with disabilities receiving integrated co-teaching services in a class shall be determined in accordance with the students’ individual needs [and the] number of students with disabilities in such classes [cannot] exceed 12 students” unless a variance was provided.Id. at § 200.6(g)(1) . At a minimum, the classroom must include a special education teacher and a general education teacher.Id. at § 200.6(g)(2) . In contrast, a special education classroom is a “self-contained setting.” SeeId. at § 200.6(h)(4) .
The Parents refer repeatedly to an “ICT classroom” and they assert that the use of ICT services makes M.W.‘s placement akin to a segregated special education classroom rather than a regular classroom with supports. Accordingly, the Parents argue that the DOE failed to consider a regular classroom with additional supports. Though it is fair to say that a classroom with ICT services is not a “regular classroom,” it is likewise unfair to characterize the placement as a segregated, special-education environment. Newington, however, does not compel a choice between the two extremes of a regular classroom and a special education classroom. Newington only gives us a test to use when a student is pulled out of a regular classroom and placed in a special education classroom all or some of the time. Accordingly, we do not have to decide whether this is a regular classroom or a special education classroom. Though M.W.‘s placement adds a degree of complexity to the LRE test articulated in Newington, we need only consider whether the placement of M.W. in a general education environment with a regular curriculum alongside typically developing peers but supplemented with a special education teacher was overly restrictive for M.W.
Moreover, both the IHO and SRO treated ICT as a service and not a special-education classroom. The IHO concluded that the DOE “failed to present any evidence that an ICT program . . . provided sufficient special education support for [M.W.] in the classroom.” IHO Decision at 26 (emphasis added). A close reading of the SRO‘s opinion reveals that she also characterized the use of a special education teacher, paraprofessional, and related services as “provid[ing] special education support” and that M.W. deserved to be in a “general education curriculum” alongside typically developing peers on account of his high functionality. See SRO Decision at 16 (emphasis added). On these facts, M.W. has not persuaded us that the ICT services were too restrictive and the record does not reflect that New York‘s statutory schema incorrectly classifies ICT services as a placement less restrictive than a segregated, special-education classroom. Accordingly, we decline to analyze M.W.‘s ICT classroom placement as a placement in a special-education classroom.
The question then in this case is whether the ICT services were appropriate supports for M.W. within a general education environment. The Parents contend that a classroom with ICT services was overly restrictive because M.W. had been educated alongside “exclusively non-disabled peers . . . [and that he had proven] that with support, he could ‘make it’ in a far less restrictive environment.” Br. at 22. The Parents rely upon the
They assert that any classroom restrictions that result in raising the educational level afforded to the student beyond what can be deemed “appropriate” are therefore impermissible, maintaining that the “test is not whether a student can learn ‘more’ or learn ‘better’ in a more restrictive setting, but simply whether the student can learn ‘satisfactorily’ with aids and services in a less restrictive environment.” Br. at 22. Our cases, however, do not stand for that robust proposition.
The
Accordingly, the Parents’ position ignores that we weigh the benefits of a less-restrictive environment against the backdrop of the educational benefits a child can receive in such an environment. Therefore, we do not assume that moving M.W. from an educational setting where he experienced some progress into a more restrictive setting, ipso facto, warrants tuition reimbursement for a private placement. Instead, we examine whether the preponderance of the evidence supports the SRO‘s conclusion that the IEP provided M.W. an appropriate education in his least restrictive environment.
The Parents also contend that the addition of ICT services were inappropriate and too restrictive because M.W. would be learning alongside as many as twelve other IEP students. We reject the unsupported assertion that the restrictiveness of the educational environment and related services turns exclusively on the number of IEP students present. “[T]he objective of providing an education tailored to each student‘s particular needs does not admit of statistical generalizations.” Newington, 546 F.3d at 121-22.
Accordingly, we consider whether the ICT services were overly restrictive along the continuum of services available to M.W. in a general education environment. The IHO did not make any conclusions or findings regarding the LRE per se. She did, however, conclude in summary fashion that the district “presented no documentary evidence to support the appropriateness of the ICT placement” in light of M.W.‘s various developmental problems. IHO Opinion at 27. Because the SRO thoroughly addressed the LRE mandate and the appropriateness of the ICT services, we defer to her conclusions.
A careful review of the record reveals that M.W.‘s autism and related disorders caused behavioral issues that disrupted class and impaired his educational development. Chanie Graus, the psychologist and DOE representative, concluded that M.W. would benefit “from two teachers in the classroom versus one [because] it‘s really important for [M.W.] to be exposed to typically developing students, since he‘s under the autistic spectrum, but he‘s high functioning.” Tr. 433-34. Graus thought that putting M.W. in a segregated special education classroom “would really be detrimental to him.” Id. at 434. Taking into consideration his “average I.Q., and that he‘s only mildly delayed in comparison to other students his grade,” Graus said they wanted M.W. “to be challenged and exposed to a general education curriculum.” Id. At the IEP meeting, no one expressed disagreement with the recommendation for an ICT classroom. Graus also concluded that a regular general education classroom would be inappropriate because of his emotional difficulties and that having a special education teacher would be a benefit. Id. at 437.
A preponderance of the evidence supports the SRO‘s conclusions that the IEP recommendation of ICT services in a general education setting was appropriate and reasonable. The DOE was not required to place M.W. in a regular classroom where he was the only IEP student.
B. Length of Program
The Parents also argue the DOE‘s failure to provide a 12-month program denied M.W. a FAPE. The IHO determined that the CSE failed to “justify the
The Parents rely exclusively on the IHO‘s statement that “the [DOE]‘s own witness . . . stated [that] M.W. required a 12-month program” to develop their argument. See IHO Decision at 26 (citing Tr. at 761) (emphasis added). That reliance is misplaced. The DOE witness was the special education teacher who would have been leading M.W.‘s ICT services and who was not part of the IEP team. She said that “being a teacher, . . . more is better, and for a child with such deficits, I think a 12 month [program] would be good for the child.” Tr. 761 (emphasis added). That “concession” does not suggest that such a program would be necessary or required to prevent regression. Moreover, the administrative record reveals that regression was not a topic discussed at the IEP meeting. See Tr. 638. Mom testified that she was not seeking tuition reimbursement for a 12-month program, only a 10-month program. Tr. at 1109. Accordingly, we are not persuaded that the SRO erred in concluding that the absence of 12-month services did not deny M.W. a FAPE. We also do not agree that the cumulative results of the alleged errors resulted in a FAPE denial. See R.E., 694 F.3d at 190.
Having considered all of the Parents’ arguments on appeal, we find them to be without merit. Accordingly, we conclude that the SRO correctly determined that the IEP was substantively adequate and, despite alleged procedural flaws, provided M.W. a FAPE.
Conclusion
The district court‘s order of June 15, 2012, granting summary judgment for Defendant-Appellee New York City Department of Education is hereby Affirmed.