OPINION AND ORDER
Plаintiffs N.K. and L.W., individually and on behalf of their minor child J.K., bring this action against the New York City Department of Education (“DOE”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and Article 89 of the New York State Education Law, N.Y.. Educ. Law § 4400 et seq. Plaintiffs contend that the DOE failed to provide J.K. a free and appropriate public education for the 2011-2012 school year. An impartial hearing officer as well as a state review officer held otherwise.
Plaintiffs move for summary judgment, seeking an order reversing the decision of the State Review Officer; • holding that the DOE failed to provide J.K.- with a free and appropriate public education for the 2011-2012 school year; and ordering the DOE to reimburse Plaintiffs for tuition paid to
BACKGROUND
A. Legal Framework
“Congress enacted the IDEA to promote the education of students with disabilities.” M.P.G. ex rel. J.P. v. N.Y.C. Dep’t of Educ., No. 08 Civ. 8051(TPG),
In New York, Committees on Special Education (“CSEs”) — composed of the student’s parent or parents, a regular or special education teacher, a school board representative, a parent representative, and others appointed by the local school district’s board of education — are responsible for developing IEPs. See N.Y. Educ. Law § 4402(l)(b)(l); see also Walczak v. Fla. Union Free Sch. Dist.,
“To begin the tuition-reimbursement process, a parent must first file a due-process complaint which triggers an administrative-review process____” Id. (citing 20 U.S.C. § 1415(b)(6), (f); N.Y. Educ. Law § 4404(1)). If a parent files a due process complaint, the school district has thirty days to remedy any deficiencies identified in the complaint without penalty. See R.E.,
B. Factual Background
J.K. was born on February 17, 1999. (IEP 1). J.K. has multiple disabilities,
On February 14, 2011, a CSE convened to develop J.K’s IEP for the 2011-2012 school year. (IEP at 1, 2; SRO Decision at 3). Meeting attendees included a DOE special education teacher, who also served as the DOE representative; a DOE school psychologist; a parent member; an independent neuropsychologist; a social worker from the Rebecca School; J.K’s mother; and her attorney. (IEP 2; IHO Decision 11). The CSE considered several evaluations of J.K., including: a 2010 report from the Rebecca School that included individual reports from each of J.K’s service providers (DOE Ex. 4, at 5; Tr. 31); an independent psychoeducational evaluation commissioned by DOE, dated October 29, 2010 (DOE Ex. 7, at 1); a psychological evaluation commissioned by J.K’s parents, consisting of three observations between May 29 and August 23, 2010 (DOE Ex. 6, at 1); and a classroom observation conducted by a special education teacher on October 14, 2010 (DOE Ex. 5, at 1). In addition, J.K’s mother provided substantial information about J.K’s functioning and input into the proper educational placement for him. (See Tr. 36-37; DOE Ex. 2).
The IEP developed at this meeting set forth several annual goals and short-term objectives for J.K. (IEP 6-11). To meet these goals, the IEP recommended that J.K. be placed in a 6:1:1 classroom — that is, a classroom with six students, one teacher, and one paraprofessional aide, R.E.,
The IEP indicates that it was mailed to J.K’s parents on February 15, 2011. (IEP 2). On June 10, 2011, the DOE mailed J.K’s parents its Final Notice of Recommendation, offering J.K. placement in a twelve-month 6:1:1 class at P226. (DOE Ex. 3). On June 17, 2011, J.K’s parents sent the DOE a letter notifying it that they planned to unilaterally enroll J.K. at the Rebecca School. (Parent Ex. C, at 1). J.K’s mother visited P226 with a social worker from the Rebecca School on June 21,2011. (Tr. 415-16).
On July 5, 2011 J.K’s parents filed a due process complaint requesting an impartial hearing; alleging that the DOE had denied J.K. a FAPE for the 2011-2012 school year; and seeking tuition reimbursement for their unilateral placement of J.K. at the Rebecca School. (Due Process Compl. 1). The complaint alleged the IEP was inadequate for nine reasons: (1) The CSE failed to conduct the triennial reevaluations required under New York law; (2) the CSE failed to comply with state regulations regarding participation in a CSE meeting by teleconference; (3) the 1:1 paraprofessional the CSE recommended to provide support to J.K. throughout the day was insufficient; (4) the IEP failed to recommend parent training and counseling; (5) the DOE’s recommended placement at P226 was inappropriate for J.K. because the sсhool was housed with several other schools, and thus the size of the space and number of students would be overwhelming for him; (6) P226 lacked the sensory equipment J.K. required; (7) J.K. required the use of music, and there was no music teacher or music therapist at P226; (8) it was unlikely that P226 could satisfy the occupational, physical, and speech therapy requirements of the IEP; and (9) the composition of the class in which J.K. would likely be placed at P226 did not provide an appropriate peer group. (Id. 3-5). Significantly, although the complaint took issue with the failure of the “proposed IEP” to list parent training and counseling as a related service to which J.K. was entitled (id. 4), it also alleged that the parents had not yet received a copy of the IEP (id. 5). The parents therefore purported to “reserve the right to amend th[e] hearing request” to rаise other issues that came to their attention when they received the IEP. (Id. 5).
On September 20, 2011, J.K’s parents filed an amended due process complaint. (Pis.’ 56.1 Statement Ex. 1, at 1). The amended complaint alleged that J.K.’s parents had first received a copy of the IEP on September 19, 2011 and contended that because they had reserved their right to amend their due process notice, such amendment was proper. (See id. at 8). Both the DOE and the IHO, however, refused to grant permission for this amendment. (See Pis. 56.1 Statement Exs. 2, 3).
An impartial hearing was held on the merits of J.K’s parents’ claims over four days in late 2011. (IHO Decision 5). The IHO found that the substantive claims lacked merit and that no substantive harm resulted from any procedural violations. (See id. at 13-22). The IHO therefore concluded that “the program and the site
J.K’s parents appealed the IHO’s decision to New York’s Office of State Review. (SRO Decision 5). The SRO refused to consider any claims that were not raised in the original due process complaint. (Id. at 9). He concluded that, “[d]espite the parents’ claim on appeal that they ha[d] yet to receive a copy of the February 2011 IEP, the evidence compels a contrary conclusion.” (Id. at 9 n. 1). Furthermore, the reservation of rights the parents included in their original complaint, the SRO held, could not substitute for the statutory provisions requiring either the DOE or IHO’s permission to amend. (Id. аt 9-10). On the merits, the SRO agreed with the IHO that J.K’s parents’ substantive claims failed and that their procedural claims, to the extent that they had any merit, resulted in no substantive harm. (See id. at 10-24). Having concluded that the DOE offered J.K a FAPE for the 2011-2012 school year,
On June 27, 2012, Plaintiffs filed their Complaint with this Court alleging that the DOE did not offer J.K a FAPE for the 2011-2012 school year, and therefore the SRO’s decision should be reversed. (See Compl. (Docket No. 1) at 10). Plaintiffs allege that the 2011-2012 IEP is inadequate for several reasons. They contend that the CSE had insufficient evaluative information about J.K. (see id. ¶¶ 31, 33); “failed to consider recommending a nonpublic school program” (id. ¶ 21); did not discuss fully the annual goals contained in the IEP (see id. ¶ 32); and failed to provide J.K’s parents a copy of the IEP (id. ¶23). They also allеge that the IEP is inadequate because it did not specify that J.K’s educational placement should offer parent training and counseling (id. ¶¶ 19, 39); it “failed to include a clearly effective and appropriate educational and therapeutic methodology” (id. ¶ 20); it included goals that J.K. would have already achieved by the time it was implemented (id. ¶ 32); and it did not recommend music therapy (id. ¶ 35). Finally, Plaintiffs allege that P226, the school site where J.K. would have been placed, was inappropriate because its size would overwhelm J.K. (id. ¶ 40); placement there required J.K. to make several transitions throughout the day (id.); the school did not offer the sensory integration services J.K. needed (id. ¶¶ 35, 40); and J.K. would have been placed with an unsuitable group of students (id. ¶ 40).
DISCUSSION
A. Standard of Review
Summary judgment motions in the context of the IDEA involve “more than looking into disputed issues of fact.” T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist.,
B. Exhaustion
This Court lacks subject matter jurisdiction to consider any claim that has not been exhausted pursuant to the IDEA’S administrative review process— that is, it may not consider any issues that were not considered by the IHO in the due process hearing. See, e.g., Cave v. E. Meadow Union Free Sch. Dist.,
Plaintiffs argue that while the lack of consent from the school district and the IHO would ordinarily prevent them from raising claims not contained in their initial due process complaint, in this case, such consent ought to be excused because they were not provided with a copy of J.K.’s IEP until September 19, 2011. (See Pis.’ Mem. 4-5). As an initial matter, the IHO found that the school district did in fact timely send the IEP to the Plaintiffs on February 15, 2011. (IHO Decision 22). Similarly, the SRO found that “the evidence compels” the conclusion that the Plaintiffs received the IEP. (SRO Decision 9 n. 1). The evidence in the record supports this conclusion: The IEP itself indicates that it was sent to the parents on February 15 (IEP 2); the school psycholo
Even if Plaintiffs had not, in fact, received a copy of the IEP, this Court is without authority to excuse their failure to exhaust. The Second Circuit has repeatedly held that exhaustion under the IDEA is jurisdictional. See, e.g., Cave,
Plaintiffs raise four claims in their Complaint before this Court that were not raised in the initial due process notice: (1) the CSE’s failure to consider recommending a non-public school program (Compl. ¶ 21); (2) the failure of the CSE to discuss fully annual goals for J.K. (id. ¶ 32); (3) the IEP’s recommendation of annual goals that J.K. would have allegedly achieved by the time the IEP was implemented (id.); and (4) the IEP’s “fail[ure] to include a clearly effective and appropriate educational and therapeutic methodology” (id. ¶ 20). (As it happens, Plaintiffs make no argument in their memorandum of law in support of the first or fourth claims anyway.) In addition, Plaintiffs’ memorandum of law in support of their motion for summary judgment raises another claim
C. Procedural Adequacy
Plaintiffs argue that the IEP was both procedurally and substantively inadequate. While substantive inadequacy automatically entitles parents to reimbursement, procedural violations do so only “if they ‘impeded the child’s right to a [FAPE],’ ‘significantly impeded the parents’ opportunity to participate in the decisionmaking process,’ or ‘caused a deprivation of educational benefits.’ ” R.E.,
1. Failure to Provide Parents a Copy of the IEP
School districts are required to “ensure that a child’s IEP is in effect by the beginning of the school year and that the parents are provided a copy.” Cerra,
Regardless, any failure to provide Plaintiffs a copy of the IEP did not “impede[ ]” their “opportunity to participate in the decisionmaking process.” R.E.,
2. Failure to Recommend Parent Training and Counseling Services
“New York regulations require that school districts offer training and counseling to parents of a child with autism in order to help the parents implement their child’s IEP.” E.Z.-L. ex reí. R.L. v. N.Y.C.
3. Failure to Conduct Sufficient Evaluations
Although Plaintiffs do not provide any argument about this point in their memorandum of law, their Complaint before this Court alleges generally that the SRO “incorrectly held that the District had sufficient evaluative information about J.K.’s academic abilities and functional performance so as to permit the IEP team to develop an appropriate program for the 2011-2012 school year” (Compl. ¶ 33). This claim was arguably raised in the due process notice, which contended that the IEP “is defective in that the CSE has not conducted mandated triennial reevaluations.” (Due Process Notice 3 (citing 8 N.Y.C.R.R. § 200.4(b)(4))). New York law provides that a CSE “shall arrange for an appropriate reevaluаtion of each student with a disability ... at least once every three years.” 8 N.Y.C.R.R. § 200.4(b)(4). The law states that students’ educational and related services needs ought to be evaluated, but otherwise does not specify what a reevaluation must include. Id. The regulations state only that “the reevaluation shall be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education.” Id.
Plaintiffs’ due process notice did not specify which assessments Plaintiffs believe J.K. needed that the district failed to arrange, and, as noted, their memorandum of law does not address this claim at all. This failure constitutes a waiver of Plaintiffs’ claims. See, e.g., Sonera Holding B.V. v. Cukurova Holding A.S.,
4. Cumulative Procedural Violations
Procedural violations must be considered cumulatively. See R.E.,
D. Substantive Adequacy
In addition to their procedural challenges to the IEP, Plaintiffs also raise several challenges to its substantive adequacy. “Substantive inadequacy automatically entitles the parents to reimbursement.” R.E.,
The Second Circuit has cautioned that “deference [to administrative agencies] is particularly important when assessing an IEP’s substantive adequacy.” Cerra,
1. Grouping
Plaintiffs argue that the classroom into which J.K. would have been placed was inappropriate for him. (Pis.’ Mem. 8-9). That classroom had four sixth-grade students whose reading and math levels ranged from kindergarten to third grade. (Tr. 149). J.K’s reading and math levels were at a pre-kindergarten level. (IEP 3). Plaintiffs argue that the class “lack[ed] appropriate staffing ... to offer differentiated instruction,” and therefore it would have been inappropriate to group J.K. with these higher-functioning students. (Pis.’ Mem. 9).
As an initial matter, in determining the sufficiency of an IEP, although courts may consider evidence “that explains or justifies the services listed in the IEP,” it may not consider evidence about how the IEP would have been implemented. R.E.,
Even if the Court could consider such evidence, the classroom in which J.K. likely would have been placed was appropriate. New York law requires that group instruction “shall be consistent with the individual needs of each student in the group, and the instruction required to meet the individual needs of any one student in the group shall not consistently detract from the instruction provided other students in the group.” 8 N.Y.C.R.R. § 200.1. In addition, “[t]he range of academic or educational achievement of’ students with disabilities grouped together for special education “shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained.” 8 N.Y.C.R.R. § 200.6(a)(3)(i). As the IHO found, the DOE has demonstrated “that it could have [provided] individualized and differentiated instruction so as to maintain an appropriate range of academic instruction to provide appropriate opportunities to achieve [J.K’s] annual goals.” (IHO Decision 21).
New York state regulations provide that a'6:1:1 class is designed for students “requiring a high degree of individualized attention and intervention.” 8 N.Y.C.R.R. § 200.6. Edith Silsdorf, the teacher who likely would have taught J.K., testified that the small class size allowed for “differentiated instruction” tailored to each student, so that “each child was definitely getting the individual attention they needed and were working at their level.” (Tr. 161). She further testified that J.K. would “[a]bsolutely” have gotten sufficient individual attention. (Id.). Silsdorf stated that students in her class received individual attention about fifty percent of the time. (Tr. 159). In addition, J.K. would have had a paraрrofessional working solely with him.
The question is not whether the class was “the best possible” class into which J.K. could have been placed, E.S. & M.S.
2. Failure to Present Evidence About J.K.’s Class Placement from September to June
Plaintiffs argue that, when the IEP took effect, the DOE was required to present evidence at the due process hearing not only about the class in which J.K. would have been placed over the summer, but also about the class in which J.K. would have been placed during the rest of the academic year, and in particular that class’s grouping.
Although Plaintiffs are correct that the DOE bears the burden of proving the appropriateness of a proposed IEP, see M.H.,
In any event, the IDEA and New York law “only require[] that a school district have an IEP in effect at the beginning of the applicable school year.” K.L. ex rel. M.L. v. N.Y.C. Dep’t of Educ., 11 Civ. 3733(KBF),
The DOE may place a student at any school site it chooses, so long as the school can satisfy the requirements of the IEP. See R.E.,
Plaintiffs argue that P226, the school at which J.K. would have been placed, is inappropriate for him for three reasons. First, Plaintiffs note that the school is large and “contains several hundred children,” and J.K. “tends to get disregulated when around noisy environments.” (Pis.’ Mem. 10). If placed at this site, Plaintiffs contend, “there would be a lot of time spent trying to calm him down which would waste a lot of his school time.” (Id.). As the SRO noted, this claim is speculative. (SRO Decision 21). J.K. never attended P226 and, therefore, it is difficult to determine how he would have reacted. That said, there is no evidence in the record that being in a large building with many other students would, by itself, cause J.K. to become disregulated. (SRO Decision 21). Furthermore, the record demonstrated that although J.K. would have been in a school that shared a building with several other schools, for the most part, the special education students were to be kept separate from the other students. (See, e.g., Tr. 74, 280). In fact, the site coordinator for P226 testified that special education students at the school had not had any issues with overstimulation in the cafeteria — the location about which Plaintiffs expressed the most concern (see Pis.’ Mem. 10) — because, due to the layout of the cafeteria, the special education students are separated from the other students and “don’t really see them.” (Tr. 280). Nevertheless, if J.K. were to become disregulated, the site coordinator testified, he would be provided a “sensory diet” that could calm him down. (Id. 257). In addition, the role of the crisis management paraprofessional that the IEP provided would accompany J.K. throughout the school day was to ensure that J.K. was “in a calm state so that he’s available for learning.” (Id. 43). There is thus substantial evidence supporting the SRO’s conclusion that Plaintiffs’ concerns about the size of P226 werе unwarranted. (SRO Decision 22).
Second, Plaintiffs argue that at P226, “J.K. would be expected to transition to different teachers throughout the school day which would cause J.K. to get disregulated and lose a great deal of time trying to get him back.” (Pis. Mem. 11). This claim, too, is speculative. The site coordinator, however, testified that J.K. would likely transition approximately twice per day during the summer and four times per day during the rest of the year. (Tr. 273-74). The record substantiates the IHO and SRO’s conclusion that J.K. would have been able to manage these transitions. (IHO Decision 17-18; SRO Decision 22). In particular, the site coordinator testified that the school supports students through transitions by providing them with a schedule; preparing them for transitions in advance; providing verbal prompts during transitions; and giving them “sensory breaks” when needed. (Tr. 255-56). These are precisely the things the record indiсates J.K. would need to function well during transitions. (See, e.g., Tr. 542, 558-59; DOE Ex. 4 at 1; SRO Decision 22). In addition, as noted above, the crisis management paraprofessional would be able to help ensure J.K. remained calm during transitions. (Tr. 43, 153). There is no reason to believe that the transitions J.K. would experience were he to attend P226 would impede his ability to make progress at that school.
4. Music Therapy
Finally, Plaintiffs contend that J.K. requires “access to music throughout the school day in order for him to gain an educational benefit” and that the DOE’s proposed placement lacks such access. (Pis.’ Mem. 12). It is unclear whether Plaintiffs’ contention is that P226 could not properly implement the IEP or that the IEP itself is inadequate. The former contention fails for the same reason that Plaintiffs’ other attacks on P226 failed: because “[speculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement.” R.E.,
The latter contention is similarly meritless. Although the record demonstrates that music therapy was beneficial for J.K. (see, e.g., Tr. 61, 622-27; DOE Ex. 4 at 8-9), it does not support the conclusion that J.K. could not have a FAPE without it. Plaintiffs contend that music therapy is necessary fоr two reasons: (1) It increases J.K’s academic, social, and communication skills; and (2) it serves as a motivator. (Pis.’ Mem. 12). The IHO and SRO both thoroughly considered the issue and concluded that J.K. did not require music therapy to receive a FAPE. (IHO Decision 19; SRO Decision 19-20). Both officers relied on the testimony of the school psychologist, who stated that the occupational, physical, and speech therapy provided by J.K’s IEP could “serve him better” — that is, could better aid him “in terms of increasing his ability to function in society” — than music therapy. (Tr. 76). In addition, with respect to J.K’s use of music for motivation, while the IEP does not provide music therapy, it does recommend that J.K. have “[a]ccess to music throughout the day.” (IEP 4, 16). Although J.K’s parents might prefer J.K. to have music therapy, “[t]he IDEA guarantees only that students with disabilities are provided an appropriate education, not one that provides everything that might be thought desirable by loving parents.” Bryant v. N.Y. State Educ. Dep’t,
‡ ‡ ‡ ‡ ‡ ‡
The preponderance of the evidence thus supports the IHO and SRO’s well-reasoned conclusion that J.K’s 2011-2012 IEP was both procedurally and substantively adequate. Therefore, the Court need not reach Plaintiffs’ claims regarding the propriety of their unilateral placement of J.K. at the Rebecca School. See T.P.,
CONCLUSION
For the foregoing reasons, Plaintiffs Motion for Summary Judgment is DENIED, and Defendant’s Cross Motion for Summary Judgment is GRANTED. The Clerk of Court is directed to terminate the motions and close this case.
SO ORDERED.
Notes
. The State of New York defines multiple disabilities as “concomitant impairments (such as intellectual disability-blindness, intellectual disability-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments.” 8 N.Y.C.R.R. § 200.1(zz)(8).
. In its conclusion, the SRO Decision states that that the IHO “found that the district offered the student a FAPE for the 2010-2011 school year,” (SRO Decision 24), but it is clear that this is an error and the SRO meant to refer to the 2011-2012 school year. The opinion analyzes the 2011-2012 IEP and repeatedly refers to J.K.’s educational placement for that year. (See id. at 1, 3, 11-24).
. Even if this claim had been raised, it is without merit. "Failure to conduct an FBA ... does not render an IEP legally inadequate under the IDEA" where, as here, "the IEP adequately identifies a student’s behavioral impediments and implements strategies to address that behavior.” M.W.,
. Plaintiffs allege that the SRO "inappropriately and incorrectly determined that J.K. could be provided with instructional services by a paraprofessional.” (Compl. ¶ 37 (citing SRO Decision 16-19)). But nowhere in his decision does the SRO state that instructional services should be provided by a paraprofessional. Instead, he concluded that the 6:1:1 class at P226 would provide adequate individual instruction, and the 1:1 paraprofessional would ensure that J.K. remained sufficiently calm and attentive to take advantage of that instruction. (See SRO Decision 18-19).
. The Court notes that although argued in Plaintiffs' memorandum of law, this claim was not included in their Complaint before this Court. See Mahmud, v. Kaufmann,