The opinion
USDC SDNY
UNITED STATES DISTRICT COURT DOCUMENT
SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED
BOARD OF EDUCATION OF THE eS
MAMARONECK UNION FREE SCHOOL DATE EIDEDS
DISTRICT,
Plaintiff, No. 21 Civ. 7596 (NSR)
. OPINION & ORDER
-against-
D.B. AND AN:S., individually and on behalf of
A.B., a minor,
Defendants.
NELSON S. ROMAN, United States District Judge:
Plaintiff Board of Education of the Mamaroneck Union Free School District’s (“Plaintiff”
or “the District”) commenced this action against D.B. and An.S., both individually and on behalf
of A.B., a minor, (collectively, “Defendants”) pursuant to the Individuals with Disabilities in
Education Improvement Act (the “IDEA” or “IDEIA”), 20 U.S.C. §§ 1400 et seg. The District
seeks judicial review of the New York Department of Education State Review Officer’s (“SRO”)
decision (the “SRO Decision”) that reversed in part a previous decision (the “IHO Decision”) of
an Impartial Hearing Officer (“THO”). The SRO found that A.B.’s placement in an “intensive
day treatment” (“IDT”) program constituted an “interim alternative educational setting”
(“IAES”), which required the District to seek an IHO hearing to determine whether A.B.’s prior
placement was likely to result in injury to A.B. or other students. The SRO further found that the
District was required, and failed, to conduct a manifest determination review (“MDR”). Finally,
the SRO awarded A.B. compensatory education as a remedy.
Before the Court is Plaintiffs motion for summary judgment. (ECF No. 20). For the
reasons set forth below, Plaintiff's motion is GRANTED in its entirety and the SRO’s decision
with respect to IDT amounting to a IAES, and the consequent award of thirty-seven hours of
compensatory education, is REVERSED.
BACKGROUND
I. Factual Background
The parties have submitted briefs, statements of material facts pursuant to Local Civil Rule
56.1,1 and the record and exhibits from the proceedings below, which reflect the following factual
background.2
a. A.B.’s Time in the District and IDT Program
A.B. was a student at the Mamaroneck Avenue School (“MAS”) in the 2019 school year
placed in an integrated co-teaching (“ICT”) setting. (Pl. 56.1 ¶ 35). From the outset, A.B. engaged
in physically aggressive behavior and elopement, resulting in his suspension for a total of seven-
and-one-half days between September 6 and October 1, 2019. (Id. ¶¶ 35-36). On September 27,
2019, the District’s Committee on Special Education (“CSE”) met to review A.B.’s current
placement. (Id. ¶ 38).
The CSE recommended A.B. receive four hours of home education pending a search for
an out-of-District therapeutic day program. (Id.) An.S. rejected the CSE’s recommendation of
home education. (Id. ¶ 1). Nevertheless, as of September 27, 2019, A.B.’s placement was listed on
the meeting summary as “Home Instruction”. (SD10-1).
1 The parties submitted their respective motion papers on December 22, 2022. (See Pl. Mem. Summ. J. (“Pl.
Mem.”), ECF No. 21; Pl. Rule 56.1 Statement (“Pl. 56.1”), ECF No. 22; Pl. Counter Statement to Defs. 56.1 (“Pl.
Counter 56.1”); Defs. Response to Pl. 56.1 (“Defs. Resp. 56.1”). ECF No. 25; Defs. Counter Statement to Pls. 56.1
(“Defs. 56.1”), ECF No. 26; Defs. Opp’n to Pls. Mot. (“Defs. Opp.”), ECF No. 24; Pl. Mem. in Reply to Def. Opp’n
(“Pl. Reply”), ECF No. 28.) A certified hard copy of the administrative hearing record that was before the State
Review Officer (the “Certified Record”) was received by the Court by mail on October 18, 2022. The Certified
Record was not e-filed.
2 For ease of reference, references exhibits prefixed by “SD” refer to the District’s exhibits. Hearing testimony is
prefixed with “T” and is followed by the witness’s last name.
At the September 27 meeting, the CSE also discussed the possibility of A.B. entering an
intensive day treatment (“IDT”) program pending an out-of-District placement, but such a program
was not part of the CSE’s formal recommendation. (Defs. Resp. 56.1 ¶ 48(b); SD10-2). The IDT
program would not constitute a CSE placement because it does not provide special education. (Pl.
56.1 ¶ 41).
On September 27, 2019, an intake summary was performed at the IDT. A.B.’s parents were
present at the intake, along with the District’s special educator, a Mr. Williams, and school
psychologist, Dr. Lavinia Marchis. (Id. ¶¶ 43-44; T-Mazzone, p.172). Yolette Levy and Amanda
Allison from IDT were also present for the intake. (Pl. 56.1 ¶ 43). Following the intake, which was
signed by Yollette Levy, a plan was set for A.B. to begin attending IDT on October 4, 2019. (SD55-
3). A.B. did, in fact, begin attending the IDT on October 4, 2019. (Pl. 56.1 ¶ 42; SRO Decision
p.6).
On October 2, 2019, An.S. took A.B. to MAS, where she was informed by the school’s
principal that A.B. no longer had a placement at the school and could not be left on the premises.
(Id. ¶ 50). The school administration again advised that IDT was a possible general education
alternative interim placement while an out-of-District placement was pending. (Pl. 56.1 ¶ 53).
After A.B. was turned away from MAS but on that same day, An.S. received a notice that A.B.’s
placement had changed from MAS to home instruction effective as of October 2. (Pl. 56.1 ¶ 49).
Even so, A.B. attended the IDT program from October 4, 2019 until November 27, at which point
he transferred to the Pocantico Hills Therapeutic Support Program (the “Pocantico Hills Program”)
with An.S’ agreement. (Pl. 56.1 ¶¶ 46, 60).
b. Due Process Complaints & IHO Decision
On October 8, 2019, the District initiated a due process hearing regarding An.S.’ request
for multiple independent educational evaluation hearings. (Id. ¶ 2). On October 15, 2019, An.S.
initiated her own due process hearing wherein she invoked A.B.’s right to “stay put” in his
pendency placement in the ICT class at MAS pursuant to N.Y. Educ. L. § 4404(4)(a). (Id. ¶ 3). In
response, the District initiated an impartial hearing pursuant to 8 N.Y.C.R.R. § 201.8 (“Section
201.8”) to demonstrate that returning A.B. to MAS would likely lead to injuries on October 21,
2019. (Id. ¶ 4). All three hearings were than consolidated before one IHO. (Id. ¶ 5). After A.B.’s
transfer to the Pocantico Hills Program, the District withdrew its Section 201.8 hearing request.
(SRO Decision p.7, n.5). On March 10, 2021, the IHO issued his decision, finding that the District
offered A.B. a free appropriate public education (“FAPE”) for the 2017-18 through 2019-20 school
years and denied his parents’ requests for relief. (Pl. 56.1 ¶ 9; IHO Decision p.46). In particular,
the IHO found that the District’s removals of A.B. were not disciplinary in nature, but were rather
based on safety concerns, and that a manifestation determination review (“MDR”) was not
required because A.B. had not been withheld from school for greater than ten days in one school
year. (Pl. 56.1 ¶ 10; IHO Decision p.38).
c. SRO Appeal & Decision
An.S. appealed the IHO Decision to an SRO, who issued a decision on May 20, 2021. (Pl.
56.1 ¶¶ 11-12). The SRO found that A.B.’s placement in IDT met the definition of an IAES and,
accordingly, the District was required to seek an IHO determination if the District believed
maintaining A.B. in his placement prior to the September 27, 2019 CSE meeting was likely to
result in injury to A.B. or others. (SRO Decision p.42). The SRO further found that if the District
received such a determination, it would then be required to conduct an MDR. (Id.).
Moreover, the SRO held that because IDT was informally suggested to A.B.’s parents, it
does not qualify as an offer of FAPE. (Id.). Accordingly, the SRO reversed the IHO Decision’s
findings that the District’s placement of A.B. in IDT was procedurally and substantively
appropriate. (Id.) The SRO also ordered the District to provide one hour per day of instruction to
A.B. for the number of days he attended the IDT program as an equitable award—thirty-seven
hours total. (Id. p.50).
II. Procedural History
The District filed its complaint on September 10, 2021. (ECF No. 1). After being granted
an extension of time to respond (ECF No. 8), the Defendants filed their answer on November 15,
2021. The District’s motion for summary judgment was fully submitted, with opposition from the
Defendants, on December 22, 2022. (ECF Nos. 20-29).
LEGAL STANDARDS
I. Legal Framework of the IDEA3
The IDEA’s “purpose is ‘to ensure that all children with disabilities have available to them
a free appropriate public education.’” T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 875
(2d Cir. 2016) (quoting 20 U.S.C. § 1400(d)(1)(A)). As the Second Circuit has described, this
means “an education ‘likely to produce progress, not regression,’ and one that ‘afford[s] the
student with an opportunity greater than mere trivial advancement.’” Id. (quoting M.O. v. New
York City Dep’t of Educ., 793 F.3d 236, 239 (2d Cir. 2015)); accord Endrew F. ex rel. Joseph F.
v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017) (“a student offered an educational
3 The IDEA was amended by the IDEIA in 2004. See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 445 n.1
(2d Cir. 2014).
program providing ‘merely more than de minimis’ progress from year to year can hardly be said
to have been offered an education at all”).
“The ‘centerpiece’ of the IDEA and its principal mechanism for achieving this goal is the
[Individualized Education Plan (“IEP”)].” T.K., 810 F.3d at 875. “The IEP is the means by which
special education and related services are ‘tailored to the unique needs’ of a particular child.”
Endrew F., 137 S. Ct. at 994 (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist.,
Westchester Cty. v. Rowley, 458 U.S. 176, 181 (1982)). The IDEA imposes upon school districts
the duty to seek out children with a disability and ensure they receive the special education services
they need. See 20 U.S.C. § 1412(a)(3); 34 C.F.R. § 300.111(a)(1)(i); Forest Grove Sch. Dist. v.
T.A., 557 U.S. 230, 245 (2009). Similarly, “an educational agency must issue an IEP for a resident
qualifying child, even if that child has been enrolled in a private school outside the boundaries of
the school district.” Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 451 (2d Cir. 2015). And, the IEP
“must be drafted in compliance with a detailed set of procedures.” Endrew F., 137 S. Ct. at 994
(citing 20 U.S.C. § 1414(d)(1)(B)).
“The IDEA requires that every IEP include ‘a statement of the child’s present levels of
academic achievement and functional performance,’ describe ‘how the child’s disability affects
the child’s involvement and progress in the general education curriculum,’ and set out ‘measurable
annual goals, including academic and functional goals,’ along with a ‘description of how the
child’s progress toward meeting’ those goals will be gauged.” Id. (quoting 20 U.S.C.
§§ 1414(d)(1)(A)(i)(I)–(III)). It “must also describe the ‘special education and related services . . .
that will be provided’ so that the child may ‘advance appropriately toward attaining the annual
goals’ and, when possible, ‘be involved in and make progress in the general education
curriculum.’” Id. (quoting 20 U.S.C. § 1414(d)(1)(A)(i)(IV)).
In addition to providing an education likely to produce progress and tailored to the unique
needs of the child, the program must be offered in the least restrictive environment. 20 U.S.C. §
1412 (a)(5)(A); N.Y. Comp. Codes R. & Regs. §§ 200.1(cc), 200.6(a1); see C.W.L. & E.L. v.
Pelham Union Free Sch. Dist., 149 F. Supp. 3d 451, 467–68 (S.D.N.Y. 2015) (quoting M.W. ex
rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131, 145 (2d Cir. 2013)) (one of the IDEA’s
goals is “to provide disabled children with a public education ‘while protecting them from being
inappropriately sequestered in a special-education classroom’”). “[A] disabled student’s least
restrictive environment refers to the least restrictive educational setting consistent with that
student’s needs, not the least restrictive setting that the school district chooses to make available.”
T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 161 (2d Cir. 2014) (emphasis added
and citation omitted). “This requirement ‘expresses a strong preference for children with
disabilities to be educated, to the maximum extent appropriate, together with their non-disabled
peers.’” Id. (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998))
(internal quotation marks omitted in original).
“Where the IEP is substantively deficient, parents may unilaterally reject it in favor of
sending their child to private school and seek tuition reimbursement from the State.” T.K., 810
F.3d at 875. A school district will be required to reimburse parents for expenditures made for a
private school placement, if the services offered the student by the school district are inadequate
or inappropriate. See Florence Cty. Sch. Dist. Four v. Carter By & Through Carter, 510 U.S. 7,
13–16 (1993); Sch. Comm. of the Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S.
359, 369–70 (1985). Following the Burlington/Carter test, once a court determines that a child
has been denied an appropriate educational opportunity by the public school district, the
remaining considerations are “whether the parents’ private placement is appropriate to the child’s
needs” and the balance of the equities. C.F. ex rel. R.F. v. New York City Dep’t of Educ., 746
F.3d 68, 73 (2d Cir. 2014).
“Generally, ‘the same considerations and criteria that apply in determining whether the
School District’s placement is appropriate should be considered in determining the
appropriateness of the parents’ placement’; accordingly, the private placement must be
‘reasonably calculated to enable the child to receive educational benefits.’” Doe, 790 F.3d at 451
(citation omitted). “Under New York law, ‘the [school district] bears the burden of establishing
the validity of the IEP, while the parents bear the burden of establishing the appropriateness of
the private placement.’” T.K., 810 F.3d at 875 (quoting C.F., 746 F.3d at 76 (citing N.Y. Educ.
Law § 4404(1)(c))).4
DISCUSSION
The District seeks an order from the Court that would deny enforcement and reverse the
SRO Decision to the extent that it held A.B. was improperly removed to the IDT program and the
award of thirty-seven hours of compensatory education. (See Compl. ¶¶ 44-45; see also Pl. Mem.
pp.1-2, 13).
I. Standard of Review
In IDEA actions, district courts follow a procedure that is in substance an appeal from an
administrative determination, not a traditional summary judgment analysis. See Lillbask ex rel.
Mauclaire v. Conn. Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005). Thus, the usual summary
judgment considerations, of whether material factual disputes exist, are not employed; rather, the
court “must engage in an independent review of the administrative record and make a
4 “It remains an open question whether states may deviate from the IDEA’s default rule, as New York does, by placing
the initial burden on the school board.” Reyes ex rel. R.P. v. N.Y. City Dep’t of Educ., 760 F.3d 211, 219 (2d Cir.
2014) (citing Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 57–58 (2005)) (“the Supreme Court has interpreted the
statute to place the burden of challenging an IEP on the party bringing the challenge”).
determination based upon a preponderance of the evidence[.]” Hardison v. Bd. Of Educ. Of the
Oneonta City Sch. Dist., 773 F.3d 372, 385–86 (2d Cir. 2014) (internal quotations and citations
omitted). That independent review, however, is not without significant limitations. “The role of
the federal courts in reviewing state education decisions under the IDEA is circumscribed.” C.F.,
746 F.3d at 77. The standard of review “requires a more critical appraisal of the agency
determination than clear-error review but nevertheless falls well short of complete de novo
review.” Id. at 77 (quoting M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 244 (2d Cir.
2012)). The SRO has special expertise in educational matters involving the IDEA and its
decisions, when “thorough and well-reasoned,” are entitled to deference. T.Y. v. New York City
Dep’t of Educ., 584 F.3d 412, 419 (2d Cir. 2009).
Under this deferential review, “[w]here the IHO and SRO disagree,” a federal court will
“defer to the reasoned conclusions of the SRO as the final state administrative determination.”
C.F., 746 F.3d at 77 (citation omitted). “However, where the SRO’s determinations are
insufficiently reasoned to merit deference,” or when “considering an issue not reached by the
SRO,” the reviewing court “should defer to the IHO’s analysis.” Id. (citation omitted). “District
courts are not to make subjective credibility assessments and cannot choose between the views of
conflicting experts on controversial issues of educational policy in direct contradiction of the
opinions of state administrative officers who had heard the same evidence.” M.H., 685 F.3d at
240 (alterations and internal quotation marks omitted) (citing Grim v. Rhinebeck Cent. Sch. Dist.,
346 F.3d 377, 383 (2d Cir. 2003)).
Different types of findings are also accorded different degrees of deference. For instance,
the SRO’s findings regarding the IEP’s substantive adequacy command more deference than
determinations regarding whether the IEP was developed according to proper IDEA procedures.
See M.H., 685 F.3d at 246; see also M.P. v. Carmel Cent. Sch. Dist., No. 15 CV 3432 (VB), 2016
WL 379765, at *4 (S.D.N.Y. Jan. 29, 2016) (“Courts should afford more weight to SRO
determinations when they involve the substantive adequacy of an IEP.”). Determinations of
appropriate methodology are accorded greater deference, while factual determinations of progress
are afforded less. See M.H., 685 F.3d at 246. More deference is due when this Court’s
determination rests solely on the same evidence presented to the SRO. Id.
Deference is not due to the SRO involving matters outside their area of expertise, “such as
contract interpretation or the requirements of standing[;]” that is, with respect to questions of law
or legal interpretation. E.M., 758 F.3d at 456-57. Courts are in just as strong a position—if not
stronger—to make legal conclusions as an SRO and, accordingly, such legal conclusions are not
afforded deference but are reviewed de novo. See Lillbask ex rel. Mauclaire,397 F.3d at 82; Muller
on Behalf of Muller v. Committee on Special Educ. Of East Islip Union Free School Dist., 145
F.3d 95, 102 (2d Cir. 1998).
It is with all these standards in mind, and having considered the parties’ positions on
deference, that the Court approaches the findings, reasoning, and persuasiveness of the SRO’s
decision as to each of the issues below.
II. IDEA Claim
The District seeks review of the SRO’s conclusions that: (1) A.B. was improperly removed
to the IDT program and (2) the award of thirty-seven hours of compensatory education based on
that improper removal. (Compl. ¶¶ 44-55; Pl. Mem. p.13). Generally, the District argues that the
SRO made errors of both fact and law in holding that A.B. was placed in an IAES and that,
therefore, the District was required to conduct an MDR. (Pl. Mem. pp.8-13).
a. “Disciplinary Change in Placement” & “Interim Alternative Education
Setting”
At the outset, the SRO and IHO diverged in deciding whether A.B.’s removal from MAS
constituted a “Disciplinary change in placement” (a “DCP”) within the meaning of 8 N.Y.C.R.R.
§ 201.2(e) or an IAES, as defined in 8 N.Y.C.R.R. § 201.2(k). After recounting the relevant facts
and statutes, the SRO makes the conclusory statement that “IDT met the definition of an IAES . .
. .” (Id. p.38-42). At the outset, the SRO noted that “[r]elevant to [the] review of the [germane]
events . . . are the procedures under the IDEA by which school officials may effect a disciplinary
change in placement . . . .” (Id. p. 38).
The IHO, on the other hand, was express that A.B.’s removal was not disciplinary in nature.
(See IHO Decision pp.37-38). Given this issue is one of statutory interpretation, the Court reviews
it fully de novo. See Muller on Behalf of Muller, 145 F.3d at 102 (2d Cir. 1998) (holding that
District Courts are “free to consider . . . issue[s] of . . . statutory [interpretation] de novo)).
A “disciplinary change in placement” occurs when a student is “suspen[ded] or remov[ed]
from a student’s current education placement [for] either: (1) . . . more than 10 consecutive school
days;” or (2) after repeated suspensions or removals resulting from substantially similar conduct
constituting a pattern that amount for greater than ten school days in a school year. 8 N.Y.C.R.R.
§ 201.2(e). An IAES is a “temporary educational placement, other than the student’s current
placement at the time the behavior precipitating the IAES placement occurred.” 8 N.Y.C.R.R. §
201.2(k).
The Court disagrees that A.B.’s enrollment in IDT constituted either a DCP or an IAES.
It is undisputed that between September 6 and October 1, 2019, A.B. was suspended for a
total of seven-and-one-half days. (Resp. 56.1 ¶ 35). It is further undisputed that at the September
27, 2019 CSE meeting, the CSE recommended that A.B.’s placement be changed to four hours of
home instruction per day pending a search for an out-of-District day program and that the IDT
program, to the extent discussed, did not constitute a CSE placement. (Id. ¶¶ 38, 41(b)). Moreover,
the parties agree that A.B.’s parents received a prior written notice of the change in placement to
home instruction effective on October 2, 2019. (Id. ¶ 49). That, as far as the District was concerned,
A.B.’s placement was changed from MAS to home instruction is also independently supported by
the record. (See SD10-1 (“Placement: Home Instruction”); SD36-1 (“[A]t its September 27, 2019
meeting, [the CSE] recommended that a search be conducted for an appropriate out-of-district
placement and that, in the interim, [A.B.] be placed on home instruction effective October 2, 2019
. . . [t]his is [A.B.’s] current placement . . . ”); see also T-An.S. p.1594 (“We were waiting to get
prior written notice of the change in placement to home instruction . . .); T-McKean p.1011 (“Q.
Where was [A.B.] to receive his educational services while [the search for an out-of-district
placement] was being conducted? A. Home instruction”).
The parties do dispute, however, the degree of choice A.B.’s parents had with respect to
his admission into the IDT program. The District argues that the parents had the option to
voluntarily place A.B. in IDT and eventually did so. (See Pl. 56.1 ¶¶ 1, 40-42). A.B.’s parents
counter that they essentially had no choice. The record substantially supports that home instruction
was not practically viable for An.S. given her work schedule.5 (SRO Decision p. 41-42; IHO
Decision p.40; T-An.S. p.1777) As a result, An.S. enrolled A.B. in IDT because “she felt she did
not have another option.” (SRO Decision p.42).
Impracticalities do not, however, change A.B.’s enrollment in IDT into a placement that
may be challenged under the IDEA. While the difficulties and hardships associated with childcare
5 It is also undisputed by the parties that when An.S. brought A.B. to school on October 2, 2019, MAS officials
made it clear that A.B. had no placement at the school and could not be left there. (Pl. 56.1 ¶ 50).
are not to be diminished, An.S. is mistaken in thinking she did “not have another option [. . .]” on
October 2, 2019 when A.B. was barred from attending MAS. An.S. actually had three options: (1)
permit home instruction; (2) choose to take A.B. to IDT; and (3) invoke the “stay-put” provision
under N.Y. Educ. L. § 4404(4)(a) to keep A.B. in MAS as she challenged, importantly, the
District’s change of placement to home instruction. In fact, An.S. did initiate a due process hearing
such that A.B.’s pendency placement would remain at MAS (Pl. 56.1¶ 3).6 Moreover, the SRO
noted that A.B.’s parents argued, with respect to their pendency challenge, that his “‘operative
placement’ was at the district’s school not the IDT program[,]” revealing, by implication, the
parents’ challenged placement was home instruction and sought to return A.B. to his prior
placement at MAS. (SRO Decision p.5). Therefore, from a legal perspective: (1) the District had
changed A.B.’s placement to home instruction, which (2) A.B.’s parents challenged and sought
pendency at MAS. With respect to IDT, then, there is no basis for the parents to challenge his
attendance under the IDEA.
The SRO is correct that a school district may not unilaterally remove a student with a
disability from a placement if the district believes the student to be a safety risk. (SRO Decision
p.42); see also Honig v. Doe, 484 U.S. 305, 321 (1988). The propriety of the District’s change of
placement to home instruction is not, however, before the Court.7 With respect to A.B.’s placement
in IDT the District did not act unilaterally. IDT was not the CSE’s formal recommendation, nor
6 In response, the District initiated a safety hearing to prevent A.B.’s return to MAS, (PL. 56.1 ¶ 4), only to drop this
challenge once once A.B. was placed in the Pocantico Hills Program. (SRO Decision p.7, n.5)
7 The Court does note that District appeared to be operating under the assumption that home instruction placement
was a DCP. For one and as noted above, it invoked 8 N.Y.C.R.R. § 201.8(a) (“Section 201.8(a)”) to hold a safety
hearing that, despite A.B.’s invocation of the “stay-put” provision, would still remove him from his former
placement at AMS. (Pl. 56.1 ¶¶ 3-4). Section 201.8(a) gives an IHO the power to place a student with a disability
into an IAES for no greater than 45 days if the student maintaining their current placement is substantially likely to
result in injury to the student or others. 8 N.Y.C.R.R. § 201(8)(a). Moreover, had An.S. had opted for home
instruction, the facts indicate that A.B. would have been “remov[ed] from [his] current educational placement . . .
for more than 10 consecutive school days[,]” giving rise to a DCP, because he did not start at the Pocantico Hills
Program until November 27, 2019. 8 N.Y.C.R.R. § 201.2(e); (Pl. 56.1 ¶ 60).
was it A.B.’s official change of placement. Although An.S. had misgivings about the program (see
T-An.S. p. 1779), she chose to take A.B. to IDT because of practical concerns. In essence, IDT
became an agreed-upon placement between the District and An.S. pending the resolution of the
various proceedings that were then-ongoing and not, as the SRO held, an IAES triggering
procedural protections under the IDEA. (SRO Decision p.42).
This conclusion is bolstered when reviewing the purposes of the IDEA and the pertinent
elements of an adequate an IEP. The IDEA guarantees all children with disabilities a FAPE. T.K.,
810 F.3d at 875 (2d Cir. 2016). A FAPE must produce progress beyond that of “trivial
advancement.” Id. (quoting M.O., 793 F.3d at 239 (2d Cir. 2015)). An IEP must be “‘tailored to
the unique needs’ of a particular child.” Endrew F., 137 S. Ct. at 994 (cleaned up) (quoting Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 181 (1982)).
An IEP “must also describe the ‘special education and related services . . . that will be provided’
so that the child may ‘advance appropriately toward attaining the annual goals’ and, when possible,
‘be involved in and make progress in the general education curriculum.’” Id. (quoting 20 U.S.C.
§ 1414(d)(1)(A)(i)(IV)). Nowhere in the IDEA’s mandates is a school required to accommodate
any and all impracticalities that may result from a particular child’s IEP for that child’s parent.
Rather, the focus is squarely on the particular child and crafting an individualized IEP in response
to that child’s disabilities. Parents are not without recourse, however, as there are avenues to
challenge the IEP and the child’s placement. See e.g. N.Y. Educ. L. § 4404(4)(a). As previously
demonstrated, that placement was home instruction, not IDT.
Accordingly, the SRO’s holding that A.B.’s enrollment in IDT constituted an IAES is
REVERSED and her consequent award of thirty-seven hours of compensatory education is
similarly REVERSED.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment is GRANTED. The
Clerk of Court is respectfully directed to terminate this action.
Dated: March 31, 2024 SO ORDERED:
White Plains, New York
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NELSON S. ROMÁN
United States District Judge