07-3705-cv T.P. v. Mamaroneck Union Free Sch. Dist.
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 --------
4 August Term, 2008
5 (Argued: December 2, 2008 Decided: February 3, 2009) 6 7 Docket No. 07-3705-cv 8 -----------------------------------------------------------X 9 T.P. and S.P., on behalf of S.P., 10 11 Plaintiffs-Appellees, 12 13 - v. - 14 15 MAMARONECK UNION FREE SCHOOL DISTRICT, 16 17 Defendant-Appellant.* 18 -----------------------------------------------------------X 19 Before: JACOBS, Chief Judge, McLAUGHLIN and B.D. PARKER, 20 Circuit Judges. 21 22 Appeal from a judgment of the United States District Court
23 for the Southern District of New York (Brieant, J.) granting
24 summary judgment to Plaintiffs-Appellees on their claim for
25 reimbursement of educational expenses under the Individuals with
26 Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. We hold
27 that Plaintiffs-Appellees have failed to show that Defendant-
28 Appellant’s educational plan for their autistic child was
29 improperly predetermined, and that the district court erred in
* The Clerk of the Court is directed to amend the official caption as set forth above. 1 failing to defer to the administrative experts who found that the
2 plan adequately addressed the child’s transition into the
3 kindergarten classroom.
4 REVERSED and REMANDED.
5 GARY S. MAYERSON, Mayerson & 6 Associates, New York, NY, for 7 Plaintiffs-Appellees. 8 9 MARK C. RUSHFIELD, Shaw, Perelson, 10 May & Lambert, LLP, Highland, NY, 11 for Defendant-Appellant. 12 13 PER CURIAM:
14 The Mamaroneck Union Free School District (“Mamaroneck”)
15 appeals from a grant of summary judgment to Plaintiffs T.P. and
16 S.P. by the United States District Court for the Southern
17 District of New York (Brieant, J.). T.P. and S.P. sued under the
18 Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
19 §§ 1400 et seq., seeking reimbursement for educational services
20 they provided for their autistic child.
21 T.P. and S.P. objected to Mamaroneck’s plan for special-
22 education services for their son S.P.’s kindergarten year. They
23 requested an administrative hearing to obtain reimbursement for
24 additional services they deemed necessary. After a hearing, an
25 Impartial Hearing Officer (“IHO”) denied their claim, and a State
26 Review Officer (“SRO”) affirmed. S.P.’s parents then pursued
27 their claim in the United States District Court for the Southern
2 1 District of New York. The district court held that Mamaroneck
2 had violated both the procedural and substantive requirements of
3 the IDEA. Accordingly, it granted summary judgment to the
4 parents and awarded them reimbursement, as well as attorneys’
5 fees and costs.
6 We reverse and remand with instructions to enter judgment in
7 Mamaroneck’s favor.
8 BACKGROUND
9 S.P. is an autistic child who attends school in Mamaroneck.
10 Because of his disability, S.P. was entitled under the IDEA to a
11 “free appropriate public education” administered by Mamaroneck
12 according to an “Individualized Education Program” (“IEP”). See
13 20 U.S.C. §§ 1412(a)(1)(A), 1414(d).
14 In 2003-2004, S.P. attended a regular-education preschool
15 for 10 hours per week, where he was accompanied by a personal
16 aide. At home, S.P. received 30-35 hours of applied behavioral
17 analysis (“ABA”) therapy per week, 5 hours of ABA “supervision,”
18 and speech and occupational therapy. ABA is a set of educational
19 principles used to increase or decrease behaviors. Mamaroneck
20 funded these services pursuant to a settlement agreement after
21 S.P.’s parents disagreed with Mamaroneck’s proposed IEP.
22 In January 2004, Mamaroneck’s Committee on Special Education
23 (the “Committee”), which included S.P.’s parents, began
3 1 considering S.P.’s transition into the school district for
2 kindergarten. The Committee discussed reevaluating S.P. to aid
3 it in making recommendations for his IEP, and agreed to observe
4 him at his preschool and then reconvene to discuss transition
5 options. A behavioral consultant retained by Mamaroneck, Susan
6 Young, visited S.P.’s preschool and administered tests in May
7 2004. Young also interviewed S.P.’s mother, teacher, and speech
8 therapist. In her report, Young recommended that S.P. attend a
9 special-education kindergarten class. Young noted that S.P. did
10 not require the intensive instructional services of the autistic
11 population, for example ABA, though she recommended that speech
12 and occupational therapy continue.
13 In June 2004, the Committee met to discuss S.P.’s IEP for
14 2004-2005. The Committee’s recommendations included placement in
15 a 12-student special-education class with a teacher and two
16 assistants, speech therapy three times per week in a group and
17 once individually, and individual occupational therapy two times
18 per week.
19 After the June meeting, the McCarton Center for
20 Developmental Pediatrics, which had been retained by S.P.’s
21 parents, issued a report containing recommendations contrary to
22 those in Young’s report. The McCarton Center recommended that
23 S.P. attend a special-education class where he was to be
4 1 accompanied by a full-time personal aide. It also recommended
2 that S.P. continue receiving ABA at home, including 25 hours per
3 week of ABA therapy, as well as private speech and occupational
4 therapy five times each per week.
5 At the parents’ request, the Committee reconvened in July
6 2004 to review the McCarton report and to continue discussing
7 S.P.’s IEP. Though Mamaroneck’s consultant, Young, was invited
8 to the meeting and went to the location that morning, she did not
9 attend. Instead, in the hour before the meeting, she reviewed
10 the McCarton report in the Committee chairperson’s office.
11 Young’s notes of her review include a two-column chart comparing
12 McCarton’s recommendations with her own, which she labeled
13 “School Respon.” Where McCarton recommended 25 hours of at-home
14 ABA, Young recommended 10 hours of in-school ABA; where McCarton
15 recommended that a full-time personal aide be provided to S.P. at
16 school, Young recommended a part-time personal aide to provide
17 the in-school ABA; and where McCarton recommended five sessions
18 each of private speech and occupational therapy per week, Young
19 recommended, respectively, four and two.
20 During the meeting, S.P.’s parents expressed concern about
21 his transition to a full-day kindergarten program, and requested
22 that Mamaroneck continue providing at-home ABA. The parents also
23 requested that Mamaroneck provide S.P. with a full-time personal
5 1 aide during school, that Mamaroneck staff observe S.P. over the
2 summer and meet with his home providers, and that his home
3 providers be allowed to attend school at the beginning of the
4 year to assist with his transition and train Mamaroneck staff.
5 The Committee agreed to have Young observe S.P. and communicate
6 with the home providers over the summer, and to provide training
7 to Mamaroneck staff. However, Young would provide the training
8 and not S.P.’s home providers. The Committee denied the parents’
9 request for at-home ABA and a full-time personal aide, and
10 instead recommended, consistent with Young’s premeeting notes and
11 in addition to the programs recommended at the June meeting, 10
12 hours of in-school ABA to be provided by a part-time personal
13 aide. The Committee’s recommendations were adopted in the IEP,
14 which also provided for a team meeting the first week of school
15 and continuing team meetings during the school year, including
16 meetings with S.P.’s home providers.
17 The parents objected to the IEP on the ground that it was
18 insufficient to provide a free appropriate public education to
19 S.P. They therefore supplemented the IEP with at-home services,
20 including 25 hours of ABA therapy and five hours of individual
21 speech therapy per week, and requested an administrative hearing
22 to obtain reimbursement from Mamaroneck for the cost of these
23 services.
6 1 S.P. began attending the special-education kindergarten
2 class in September 2004. At the beginning of the school year,
3 S.P. attempted to bite others on approximately six occasions.
4 The biting ended in October. S.P. was also “scripting,” which
5 involved the off-topic use of language usually about television
6 shows as a calming or avoidance technique. At the parents’
7 request, Mamaroneck instituted a system for reducing S.P.’s
8 scripting, and the scripting subsided in the first few months of
9 school.
10 An IHO held a hearing on the parents’ request for
11 reimbursement between January and May 2005. The parents
12 challenged Mamaroneck’s IEP on numerous grounds, including that
13 Mamaroneck (1) improperly predetermined S.P.’s IEP by (a)
14 agreeing upon educational placements before the July Committee
15 meeting and (b) developing educational placements before goals
16 and objectives; and (2) failed to provide appropriately for
17 S.P.’s transition into the kindergarten classroom.
18 During the hearing, witnesses testified inconsistently about
19 the extent to which the Committee discussed goals and objectives
20 for S.P. during the June meeting. They agreed, however, that
21 programs and placements, and some speech and language goals, were
22 discussed. Young testified that she was unable to attend the
23 July Committee meeting because of a scheduling mistake. She
7 1 noted that “School Respon.” in her premeeting notes meant “school
2 responsibility.” Young did not recall discussing her
3 recommendations with the Committee chairperson before the
4 meeting, and testified that the chairperson was on the phone and
5 attending to other business when Young was reviewing the McCarton
6 report in the chairperson’s office. The chairperson testified
7 that she obtained Young’s “input into what some of the new
8 recommendations could be” before the meeting. However, both
9 Young and the chairperson testified that there was no premeeting
10 agreement to adopt Young’s recommendations.
11 At the conclusion of the hearing, the IHO rejected the
12 parents’ arguments and denied their claim for reimbursement.
13 The parents appealed to an SRO, who affirmed. The SRO found
14 that while Young may have shared her thoughts with Committee
15 members before the July meeting, this did not demonstrate that
16 Mamaroneck impermissibly predetermined S.P.’s IEP. Nor could the
17 SRO conclude that educational placements were finalized before
18 goals and objectives were developed, given that both were
19 discussed at the June meeting, and placements were modified at
20 the July meeting in response to the parents’ concerns. The SRO
21 also found that Mamaroneck appropriately planned for S.P.’s
22 transition to the classroom by providing supports and services
23 designed to ease S.P.’s transition, and that the biting and
8 1 scripting that occurred in the first few months of school did not
2 impede S.P.’s learning.
3 The parents pursued their claim in the district court, which
4 granted them summary judgment. Disagreeing with the IHO and SRO,
5 the district court found that the 2004-2005 IEP was procedurally
6 and substantively deficient because Mamaroneck predetermined the
7 ABA services it was willing to provide to S.P. in 2004-2005, made
8 placement recommendations before finalizing S.P.’s goals and
9 objectives, and failed to appropriately address S.P.’s transition
10 into kindergarten by not providing at-home ABA services. The
11 district court further found that reports from 2005 indicated
12 S.P. had regressed in certain areas, and though it found that the
13 reports were not outcome determinative, they confirmed that the
14 2004-2005 IEP was insufficient.1 Accordingly, the district court
15 awarded the parents reimbursement for the cost of the additional
16 services they provided S.P., and attorneys’ fees and costs.
17 Mamaroneck now appeals.
18 DISCUSSION
1 Mamaroneck charges error in the district court’s consideration of 2005 reports. This Court has never ruled on whether district courts may consider retrospective evidence in assessing the substantive validity of an IEP. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 599 (2d Cir. 2005) (remanding for the district court to consider the issue in the first instance). We need not do so here, as resolution of the issue is unnecessary to our disposition of this case. 9 1 We review de novo the district court’s grant of summary
2 judgment in an IDEA case. Cerra v. Pawling Cent. Sch. Dist., 427
3 F.3d 186, 191 (2d Cir. 2005). Summary judgment in this context
4 involves more than looking into disputed issues of fact; rather,
5 it is a “pragmatic procedural mechanism” for reviewing
6 administrative decisions. Lillbask ex rel. Mauclaire v. Conn.
7 Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005) (internal
8 quotation marks omitted).
9 “[T]he role of the federal courts in reviewing state
10 educational decisions under the IDEA is circumscribed.”
11 Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d
12 Cir. 2007) (internal quotation marks omitted). While the
13 district court must base its decision “on the preponderance of
14 the evidence,” 20 U.S.C. § 1415(i)(2)(C)(iii), it “must give ‘due
15 weight’ to [the administrative] proceedings, mindful that the
16 judiciary generally ‘lack[s] the specialized knowledge and
17 experience necessary to resolve persistent and difficult
18 questions of educational policy,’” Gagliardo, 489 F.3d at 113
19 (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.
20 Rowley, 458 U.S. 176, 206, 208 (1982)). Thus, district courts
21 may not “substitute their own notions of sound educational policy
22 for those of the school authorities which they review.” Rowley,
23 458 U.S. at 206.
10 1 To receive federal funding under the IDEA, states are
2 required to provide disabled children with a “free appropriate
3 public education.” 20 U.S.C. § 1412(a)(1)(A). Parents who
4 believe that the state has failed to provide such an education
5 may pay for private services and seek reimbursement from the
6 school district for “expenses that it should have paid all along
7 and would have borne in the first instance had it developed a
8 proper IEP.” Sch. Comm. of Burlington v. Dep’t of Educ. of
9 Mass., 471 U.S. 359, 370-71 (1985).
10 To determine whether parents are entitled to tuition
11 reimbursement, we engage in a three-step process. Cerra, 427
12 F.3d at 192. First, we examine whether the state has complied
13 with the procedures set forth in the IDEA. Id. Second, we
14 consider whether the proposed IEP is substantively appropriate in
15 that it is “‘reasonably calculated to enable the child to receive
16 educational benefits.’” Id. (quoting Rowley, 458 U.S. at 206-
17 07). Only if the IEP is procedurally or substantively deficient
18 do we reach the third step and ask whether the private schooling
19 obtained by the parents is appropriate to the child’s needs. Id.
20 In fashioning relief, “‘equitable considerations [relating to the
21 reasonableness of the action taken by the parents] are
22 relevant.’” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356,
23 363-64 (2d Cir. 2006)(alteration in original)(quoting Burlington,
11 1 471 U.S. at 374). As the party commencing the administrative
2 review, the parents bear the burden of persuasion as to the
3 inappropriateness of Mamaroneck’s IEP and the appropriateness of
4 the private services. Gagliardo, 489 F.3d at 112.
5 I. Procedural Compliance
6 The initial procedural inquiry in an IDEA case “is no mere
7 formality,” as “‘adequate compliance with the procedures
8 prescribed would in most cases assure much if not all of what
9 Congress wished in the way of substantive content in an IEP.’”
10 Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir.
11 1998) (quoting Rowley, 458 U.S. at 206). In considering whether
12 Mamaroneck satisfied the procedural requirements of the IDEA, “we
13 focus on whether the [parents] had an adequate opportunity to
14 participate in the development of [the] IEP.” Cerra, 427 F.3d
15 at 192.
16 Here, the parents argue that Mamaroneck predetermined
17 educational programs for S.P. in violation of the procedural
18 requirements of the IDEA by: (1) adopting programs for S.P.’s IEP
19 before the July Committee meeting, and (2) making placement
20 recommendations before finalizing S.P.’s goals and objectives.
21 These arguments fail.
22 First, Mamaroneck’s consideration of educational programs
23 for S.P. before the July Committee meeting did not violate the
12 1 procedural requirements of the IDEA. The parents contend that
2 the Committee chairperson repeated Young’s premeeting
3 recommendations at the meeting and therefore must have discussed
4 them with Young before the meeting. Even if there was such
5 discussion, this does not mean the parents were denied meaningful
6 participation at the meeting. IDEA regulations allow school
7 districts to engage in “preparatory activities . . . to develop a
8 proposal or response to a parent proposal that will be discussed
9 at a later meeting” without affording the parents an opportunity
10 to participate. See 34 C.F.R. §§ 300.501(b)(1) & (b)(3).2
11 Mamaroneck’s conduct was consistent with these regulations.
12 The parents argue, however, that Young’s notes delineated
13 the limits of the services Mamaroneck was willing to provide, and
14 therefore under Deal ex rel. Deal v. Hamilton County Board of
15 Education, 392 F.3d 840 (6th Cir. 2004), Mamaroneck denied them
16 meaningful participation in the IEP process by improperly
17 predetermining S.P.’s educational program. Though not bound by
18 Deal, we find it distinguishable. In Deal, the school district
19 had consistently rejected parent requests for intensive ABA and
20 told the parents that “the powers that be” were not implementing
21 such programs. Id. at 855-56. Because the school district did
2 At the time of the relevant events in this case, these provisions were found in 34 C.F.R. §§ 300.501(a)(2)(i) & (b)(2). 13 1 not have an open mind as to whether intensive ABA programs might
2 be appropriate in some cases, the court found that the parents
3 were denied meaningful participation in the IEP process. Id. at
4 857-58.
5 S.P.’s parents have failed to show that Mamaroneck did not
6 have an open mind as to the content of S.P.’s IEP. Both Young
7 and the Committee chairperson testified that there was no
8 premeeting agreement to adopt Young’s recommendations. There is
9 also evidence that the parents meaningfully participated in the
10 July meeting, for example the Committee’s adoption in the IEP of
11 the parents’ recommendations that Mamaroneck staff observe S.P.
12 over the summer and meet with his home providers, and that
13 Mamaroneck staff receive training on how to educate S.P. We find
14 that the parents meaningfully participated in the development of
15 S.P.’s IEP, and Mamaroneck’s premeeting consideration of programs
16 for S.P. did not violate the procedural requirements of the IDEA.
17 Second, the timing of placement recommendations did not
18 violate the procedural requirements of the IDEA. The record is
19 unclear as to the extent goals and objectives were discussed at
20 the June meeting. However, witnesses agreed that there was
21 discussion of speech and language goals as well as placement
22 recommendations. Moreover, S.P.’s programs were later modified
23 in response to the McCarton report and the parents’ concerns
14 1 about transition. Thus, the parents have failed to show that
2 placements and programs were finalized before goals and
3 objectives.
4 II. Substantive Adequacy
5 “[A] school district fulfills its substantive obligations
6 under the IDEA if it provides an IEP that is likely to produce
7 progress, not regression, and if the IEP affords the student with
8 an opportunity greater than mere trivial advancement.” Cerra,
9 427 F.3d at 195 (internal quotation marks omitted). School
10 districts are not required to “furnish[] every special service
11 necessary to maximize each handicapped child’s potential.”
12 Rowley, 458 U.S. at 199.
13 The district court found S.P.’s 2004-2005 IEP substantively
14 inadequate because S.P. had previously received at-home ABA but
15 the IEP provided none, and thus the IEP failed to appropriately
16 account for S.P.’s transition into the kindergarten classroom.
17 We conclude that in finding the IEP substantively inadequate, the
18 district court failed to defer appropriately to the decisions of
19 the administrative experts on a difficult question of educational
20 policy: how best to transition an autistic child from a primarily
21 home-based educational program to a school-based program. See
22 Gagliardo, 489 F.3d at 112-13.
23 As the SRO and IHO found, the IEP included numerous supports
15 1 and services to assist S.P. with his transition. It included 10
2 hours of in-school ABA. The IEP specified that Young would
3 observe S.P. over the summer and communicate with his home
4 providers in order to develop an appropriate in-school program.
5 There was to be a team meeting the first week of school and
6 continuing team meetings during the school year, including
7 meetings with the home providers. Though S.P. did engage in
8 biting and scripting at the beginning of the school year,
9 Mamaroneck adopted the parents’ recommendation to institute a
10 system for decreasing the scripting. The system was effective,
11 and S.P.’s biting ended in October. The SRO found that the
12 biting and scripting did not impede learning. We find the
13 administrative decisions to be “reasoned and supported by the
14 record,” and therefore defer to the findings of the SRO and IHO
15 that the IEP appropriately provided for S.P.’s transition. See
16 Gagliardo, 489 F.3d at 1132-13.
17 Because we find that S.P.’s 2004-2005 IEP was neither
18 procedurally flawed nor substantively deficient, we need not
19 reach the issues whether the additional services provided by the
20 parents were appropriate, see Cerra, 427 F.3d at 192, or whether
21 equitable considerations affect relief, see Frank G., 459 F.3d at
22 363-64.
23 We have reviewed the parents’ other challenges to the IEP
16 1 and find them to be without merit.
2 CONCLUSION
3 For the foregoing reasons, we REVERSE the judgment and
4 REMAND to the district court with instructions to enter judgment
5 for Mamaroneck.