Reyes ex rel. & P. v.

Decision Date25 July 2014
Docket NumberDocket No. 13–158.
PartiesDominga REYES, on behalf of and as Parent and Guardian of R.P., a student with a disability, Plaintiff–Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant–Appellee.
CourtU.S. Court of Appeals — Second Circuit

OPINION TEXT STARTS HERE

Erin McCormack–Herbert (Michael D. Hampden, of counsel), Partnership for Children's Rights, New York, NY, for Appellant.

Kathy H. Chang (Michael A. Cardozo, Corporation Counsel, and Larry A. Sonnenshein, of counsel), Corporation Counsel of the City of New York, New York, NY, for Appellee.

Before: SACK, HALL, and LIVINGSTON, Circuit Judges.

SACK, Circuit Judge:

The Individuals with Disabilities Education Act (“IDEA”) promises each child with a disability a free appropriate public education (“FAPE”), 120 U.S.C. § 1400(d)(1)(A), which must be “reasonably calculated to enable the child to receive educational benefits,” Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). To fulfill this promise, the IDEA allows parents who think that their local school district is not providing their child a FAPE to enroll the child in a private school program unilaterally and thereafter seek reimbursement for the private school tuition from the school district. 20 U.S.C. § 1412(a)(10)(C)(ii). Deciding that the individualized education program (“IEP”) proposed by the New York City Department of Education (DOE) for the 20102011 school year failed to provide her son a FAPE, Reyes enrolled him at the private Rebecca School in Manhattan and brought a due-process complaint seeking tuition reimbursement. An impartial hearing officer (“IHO”) granted her relief, but a state review officer (“SRO”) reversed that decision on appeal. Reyes then filed a civil action in the United States District Court for the Southern District of New York. The district court (William H. Pauley III, Judge ) affirmed the SRO's decision.

Reyes appealed, arguing principally that the SRO relied on retrospective testimony impermissible under R.E. v. New York City Department of Education, 694 F.3d 167, 186 (2d Cir.2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 2802, 186 L.Ed.2d 861 (2013). We reverse the judgment and remand the cause to the district court for further proceedings.

STATUTORY BACKGROUND

The Individuals with Disabilities Education Act requires all states receiving federal funds to provide “all children with disabilities” a “free appropriate public education,” 20 U.S.C. § 1412(a)(1)(A), to “prepare them for further education, employment, and independent living,” id. § 1400(d)(1)(A). A FAPE consists of “special education and related services tailored to meet the unique needs of a particular child,” Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (internal quotation marks omitted), which are “reasonably calculated to enable the child to receive educational benefits,” Rowley, 458 U.S. at 207, 102 S.Ct. 3034, and provided in conformity with an individualized education program, or IEP, 20 U.S.C. § 1401(9)(D). The IEP, which the school district is required to prepare annually, must include the child's present levels of academic achievement and functional performance, goals and objectives for the child, and the special education and related services to be provided to the child so that he or she can advance toward attaining those goals and objectives. 20 U.S.C. § 1414(d). Under New York law, local Committees on Special Education (“CSEs”) are responsible for developing appropriate IEPs. N.Y. Educ. Law § 4402(1)(b)(1).

Any parent who thinks that the school district is failing to provide his or her child a FAPE may unilaterally enroll the child in a private school and seek tuition reimbursement from the school district. 20 U.S.C. § 1412(a)(10)(C)(ii). However, parents pursue this option at their financial risk: Reimbursement will be granted only if (1) the proposed IEP failed to provide the student with an appropriate public education; (2) the parent's private placement was appropriate to the child's needs; and (3) equitable considerations support the parent's claim. Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370, 374, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); see also Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15–16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (reaffirming Burlington ); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (reaffirming Carter and Burlington ). This analysis is also known as the Burlington/Carter test. R.E., 694 F.3d at 185.

To seek tuition reimbursement, a parent must file a “due-process complaint,” which entitles him or her to an “impartial due process hearing” before an IHO. 20 U.S.C. § 1415(b)(6), (f); N.Y. Educ. Law § 4404(1). Under New York law, the school district bears the burden of proof, “including the burden of persuasion and burden of production,” to establish that its proposed IEP provided the child a FAPE, while the parent bears the burdens of persuasion and production regarding the appropriateness of the private placement. N.Y. Educ. Law § 4404(1)(c).2 But to the extent that a court “must determine whether the state administrative decisions were supported by a preponderance of the evidence, which party bore the burden of persuasion in the state review scheme is only relevant if the evidence was in equipoise.” M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 225 n. 3 (2d Cir.2012). Either party may appeal the IHO's decision to an SRO, N.Y. Educ. Law § 4404(2), whose determination may in turn be appealed by bringing a civil action in either state or federal court, id. § 4404(3)(a); 20 U.S.C. § 1415(i)(2)(A).

FACTUAL AND PROCEDURAL BACKGROUND

Reyes's son, R.P., is a nineteen-year-old autistic student with deficits in cognitive functioning; receptive, expressive, and pragmatic language abilities; and fine and gross motor skills. In addition to autism, he has been diagnosed with sensory integration dysfunction, moderate mental retardation, and attention-deficit/hyperactivity disorder. R.P.'s sensory needs are significant: If he does not receive various kinds of sensory input at regular intervals throughout the day (a “sensory diet”), he is unable to maintain control over his behavior and may speak in a very loud voice, press on his eyes, rock his body back and forth, knock over objects, or pace.

R.P. was sixteen years old during the 20102011 school year at issue and had been attending the Rebecca School in Manhattan, “a therapeutic private school for students with neurodevelopmental delays in relating and communicating,” since May 2007. Compl. ¶ 48. DOE paid for his placement at the Rebecca School in the 20092010 school year pursuant to a November 19, 2010, IHO decision.

On May 17, 2010, a CSE meeting was convened to develop R.P.'s IEP for the 20102011 school year. Reyes, a DOE psychologist named Rose Fochetta, a DOE special education teacher, and a parent member 3 attended. R.P.'s then—teacher at the Rebecca School participated by telephone. To determine R.P.'s abilities and instructional needs, the CSE team considered a classroom observation conducted on November 12, 2009; two psychological evaluations, conducted on December 23, 2009, and January 26, 2010; and a May 2010 progress report regarding R.P.'s performance at the Rebecca School for the 20092010 school year.

The IEP produced by the CSE team recommended that R.P. be placed in a special “6:1:1” class (six students, one special education teacher, and one classroom paraprofessional) with various related services, including occupational therapy, speech and language therapy, physical therapy, and counseling. The IEP also recommended that R.P. be assigned a one-on-one (“1:1”) paraprofessional for three months “to ease the transition” from private to public school.

On or about June 15, 2010, DOE sent Reyes a Final Notice of Recommendation offering R.P. a seat at P.S. 79. Reyes visited P.S. 79 on June 25, 2010, with Rebecca School occupational therapy supervisor Mary Wiener. On that visit, Reyes and Wiener toured the school, observed two 6:1:1 classrooms, spoke with classroom teachers and an occupational therapist, and visited the therapy room and the cafeteria. Both classes that Reyes and Wiener observed employed the TEACCH 4 methodology, with students seated at individual workstations and working independently. Neither classroom teacher was familiar with the term “sensory diet,” a personalized regimen of activities that provides the sensory input a child like R.P. requires to stay focused throughout the day. Reyes and Wiener were also told that P.S. 79 did not have a “sensory gym,” a facility with specialized equipment that provides therapeutic sensory inputs. They observed tables, mats, and balls, but no swings or other equipment designed to create a sense of movement (referred to as “vestibular” equipment). When Wiener asked about the absence of such equipment, she was told that the school had none. As Wiener testified, she and Reyes were also told by a P.S. 79 occupational therapist that the school was “currently understaffed for occupational therapists and that they were using contractors, but that not all of the children's mandates were being met.” Hearing Tr. at 258, J.A. 567.

Reyes ultimately rejected the proposed placement because she thought the school's TEACCH methodology was not appropriate for R.P., the school did not provide an adequate sensory diet or sensoryequipment, the school did not provide an adequate level of individual attention, and the school was unable to meet R.P.'s related services mandate. On June 14, 2010, Reyes enrolled R.P. in a ten-month program at the Rebecca School for the 20102011 school year.

Reyes filed the due process complaint that initiated this action on March 4, 2011. On April 29, 2011, the IHO issued an Order on Pendency requiring that DOE pay R.P.'s tuition at the Rebecca School during the course of the...

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