C.F. v.

• Decision Date: 04 March 2014
• Docket Number: Docket No. 11–5003–cv.
• Citation: 746 F.3d 68
• Parties: C.F., by his Parents R.F. and G.F., Plaintiffs–Appellants, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

746 F.3d 68

C.F., by his Parents R.F. and G.F., Plaintiffs–Appellants,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant–Appellee.

Docket No. 11–5003–cv.

United States Court of Appeals,Second Circuit.

Argued: Jan. 10, 2013.

Decided: March 4, 2014.

Gary S. Mayerson (Tracey Spencer Walsh, Maria C. McGinley, on the brief) Mayerson & Associates, New York, NY, for Plaintiffs–Appellants.

Tahirih Sadrieh, of Counsel (Edward F.X. Hart, Emily Sweet, of Counsel, Michael A. Cardozo, Corporation Counsel of the City of New York, on the brief) New York, NY, for Defendant–Appellee.

Before: WINTER, POOLER, and CHIN, Circuit Judges.

POOLER, Circuit Judge:

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.¹ The judgment of the district court is VACATED and the case is REMANDED.

BACKGROUND

I. Legal Background

States that receive funding under the IDEA must provide all disabled children with a free appropriate public education. 20 U.S.C. § 1412(a). “A free appropriate public education must include special education and related services tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ., 459 F.3d 356, 363 (2d Cir.2006) (internal quotation marks omitted). In order to ensure that disabled children receive a free appropriate public education, school districts must create individualized education programs (“IEPs”) for such children. Id.; see also20 U.S.C. § 1414(d) (listing IEP requirements). IEPs must include “a comprehensive statement of the educational needs of [the] handicapped child and the specially designed instruction and related services to be employed to meet those needs.” Frank G., 459 F.3d at 363 (internal quotation marks omitted). “In New York, the state has assigned responsibility for developing IEPs to local Committees on Special Education....” R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir.2012) (citing N.Y. Educ. Law § 4402(1)(b)(1)),²cert. denied,––– U.S. ––––, 133 S.Ct. 2802, 186 L.Ed.2d 861 (2013). Such Committees “are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others.” Id. (citing N.Y. Educ. Law § 4402(1)(b)(1)(a)); see alsoN.Y. Comp.Codes R. & Regs. (“NYCRR”) tit. 8, § 200.3(a).

“The IDEA requires that an IEP be reasonably calculated to enable the child to receive educational benefits.” R.E., 694 F.3d at 175 (internal quotation marks omitted). “The purpose of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir.1998) (internal quotation marks omitted). The IDEA's “appropriate” education standard does not require that a child be provided with the optimal programmatic alternative. See id. at 132. Rather, it calls only for selection of a program that provides a “basic floor of opportunity,” id. (internal quotation marks omitted), that is “likely to produce progress, not regression,” id. at 130 (internal quotation marks omitted). “[B]ecause public ‘resources are not infinite,’ federal law ‘does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child.’ ” Id. (quoting Lunceford v. D.C. Bd. of Educ., 745 F.2d 1577, 1583 (D.C.Cir.1984) (Ruth Bader Ginsburg, J.)).

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)(1)(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 a baseline and performance criteria to measure improvement in behavior and identifies intervention strategies. Id.§§ 200.1(mmm), 200.22(b); see also20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i).

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 also34 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., 459 F.3d at 363.

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., 694 F.3d at 175 (citing 20 U.S.C. § 1415(i)(2)(A)).

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.³ For the 2006–2007 and 2007–2008 school years, C.F. attended McCarton, a private school located in Manhattan, where he received ABA therapy at a 1:1 student-to-therapist ratio. In July 2007, C.F. and his parents moved from New Jersey into New York City. On May 15, 2008, the Department convened a Committee on Special Education (the “Committee”) to formulate C.F.'s IEP for the 2008–2009 school year. The Committee was comprised of the following individuals: C.F.'s father; Nicole Check, a Department psychologist; a Department social worker; a Department special education teacher; a speech therapist; C.F.'s at-home ABA provider; and a parent member. The Committee considered a classroom observation report and social history report prepared by a Department social worker. It also considered information that had been previously prepared by McCarton personnel: a psycho-educational evaluation, a neuro-developmental evaluation and educational, occupational therapy, and speech and language progress reports.

Neither the Committee nor the IEP specified the school placement site. However,on June 17, 2008, the Department sent Plaintiffs a final notice of recommendation, placing C.F. at PS 169 located at PS 102, starting in July 2008. C.F.'s IEP was attached to the notice. The IEP recommended placement in a 6:1:1 student-to-teacher-to-paraprofessional ratio classroom. The Committee also recommended five 30–minute sessions per week of speech and language therapy at a 1:1 student-to-therapist ratio and five 30–minute sessions per week of occupational therapy at a 1:1 student-to-therapist ratio. The Committee did not create a functional behavioral assessment but did create a behavioral intervention plan based on the McCarton reports.

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.⁴ At the end of the 30–day resolution period, Plaintiffs proceeded to a hearing before an IHO.

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...