FB v. New York City Department of Education (132 F. Supp. 3d 522, 2015)

United States District Court for the Southern District of New York 2015-09-21

Citations

Full opinion text

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Plaintiffs FB and EB (the “Parents”), individually and on behalf of their minor son, LB, bring this action against the New York City Department of Education (“DOE”), pursuant to the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq., and Article 89 of the New York State Education Law, N.Y. Educ. L. §§ 4401 et seq.

This is the second time that this case has come before the Court. The first time, the Parents sought review of a November 25, 2011 administrative decision of the State Review Officer (the “SRO”). The SRO (1) annulled the decision of an Impartial Hearing Officer (the “IHO”), who had concluded that the Individualized Education Program (“IEP”) developed for LB for the 2010-2011 school year violated his right to a free appropriate public education (“FAPE”), and (2) therefore vacated the IHO’s award of tuition reimbursement ($92,100) for LB’s unilateral placement at the Rebecca School during that school year. In a 2013 opinion, this Court upheld the SRO’s 2011 decision, finding no denial of a FAPE, as to the three issues that the SRO had addressed. However, the Court noted that neither the IHO nor the SRO had addressed the Parents’ many other challenges to the IEP, despite the fact that those issues had been briefed by both sides during the state administrative process. The Court accordingly remanded to the SRO for consideration of those challenges.

On February 4, 2014, the SRO rendered his second decision, which again ruled for the DOE. The Parents now appeal that decision — i.e., the SRO’s 2014 decision. The parties have cross-moved for summary judgment.

For the reasons that follow, the Court concludes that the DOE denied LB a FAPE. The Court further holds that — as the IHO originally found — the Parents’ private placement of LB at the Rebecca School was appropriate and that equitable considerations favor the Parents. The Court therefore grants the Parents’ motion for summary judgment, orders the DOE to fully reimburse the Parents for the cost of private tuition, and denies the DOE’s cross-motion for summary judgment.

I. Background

A. Factual Background

1. LB’s classification and brief educational history

Born in 2003, LB is a student classified with autism. PL 56.1 ¶ 6; Def. 56.1 ¶ 1. Autism is a “neurodevelopmental delay in relating and communicating” that is frequently associated with cognitive, physical, and sensory processing disorders. IHO Tr. 206-07. Sensory processing disorders relate to how information is processed by the nervous system — information that the body must interpret and organize in order to function. See id.

At age two, LB presented with “significant cognitive functioning delay,” including several speech — and language-related delays, some of them considered “moderate” or “moderate to severe.” Parents Ex. LI. An occupational therapy evaluation at that time also revealed “delays in fine motor, self-help, and sensory processing skills.” Id. As a result, LB has received services from New York City continuously from age two, first from the Department of Health and later from the DOE. PI. 56.1 ¶ 7; Def. Counter Statement ¶ 7. These services included occupational therapy, speech and language therapy, and counseling. Parents Ex. L1-L2.

When LB was age five, a private psy-choeducational study described him as having “limited” speech, “great difficulty with language skills,” and “significant” delays in his social interaction skills; as being “easily distracted by his surroundings” and unable to complete various parts of the psychoeducational examination; and as experiencing difficulties in self-regulation. Id. at L2-L5. For instance, LB is “sensitive to unpredictable loud noises” and “may become dysregulated when in proximity to a child who is crying or upset.” Id. at L2. When he becomes dysregulated, LB is cognitively unavailable for learning. During testing, for instance, when he became “overwhelmed or overstimulated,” he “firmly squeezed the examiner’s arm,” “refused to engage” further, and “testing was discontinued.” Id. at L3-L4; see also DOE Ex. 8, at 5, 6 (psychoeducational evaluation when LB was age four noted his “significant delays in pragmatic, expressive, and receptive language which greatly impact his age appropriate social interactions”; his “difficulties” with fine motor skills; and that “he should be away from noise (e.g., windows, heater)”).

At age five, LB began attending the Rebecca School, a private therapeutic special education school for students with neu-ro-developmental disorders, primarily autism. See IHO Tr. 215. Since fall 2008, LB has continuously attended the Rebecca School. PI. 56.1 ¶¶ 8-9; Def. 56.1 ¶ 2. For the 2008-2009 and 2009-2010 school years, the DOE reimbursed the Parents for the tuition they paid for the Rebecca School, pursuant to settlements. PI. 56.1 ¶ 10. The DOE and the Parents similarly entered into settlements for the 2011-2012, 2012-2013, and 2013-2014 school years— 1. e., the school years after the year at issue in this case (2010-2011). See PI. 56.1 ¶ 10; Def. Counter Statement ¶ 10; Dkt. 18, at 4 n. 2.

2.LB’s IEP for the 2010-2011 school year

On February 5, 2010, the DOE held a meeting of the Committee on Special Education (“CSE”) to formulate LB’s annual IEP for the 2010-2011 school year, as required by the IDEA, see 20 U.S.C. § 1414. PI. 56.1 ¶ 11; Def. 56.1 ¶ 3. The CSE consisted of: FB and EB, LB’s parents; Dr. Patricia Pape, a school psychologist for the DOE; Ellen Gordon, a special education teacher who was also serving in her capacity as district representative member of the CSE; Sandra Morabito, a district parent; and Karin Robertson, LB’s Rebecca School teacher at that time, who participated by telephone. Def. 56.1 ¶ 4; IHO Tr. 19; DOE Ex. 3. At the meeting, the CSE consulted a number of reports on and evaluations of LB, including: LB’s 2008-2009 IEP; LB’s December 2009 progress report from the Rebecca School; and a classroom observation conducted on November 6, 2009. Def. 56.1 ¶ 6; SRO 2011 Dec. 13; IHO Tr. 22-23.

The primary recommendations that emerged from the CSE meeting were that LB (1) be placed in a 12-month school-year program; (2) be placed in a special class with a 6:1:1 staffing ratio within a specialized school; and (3) receive significant related services, including five sessions per week of one-on-one occupational therapy, five sessions per week of one-on-one speech/language therapy, two sessions per week of one-on-one physical therapy, and two sessions per week of one-on-one counseling. See DOE Exs. 3 & 4. The 2010-2011 IEP also contained a series of annual goals; as explained below, several used terminology associated with the particular teaching methodology used at the Rebecca School (the “DIR/Floortime” methodology). The IEP also noted that LB needed, inter alia, (1) immediate access to sensory tools (e.g., pressure vest), (2) sensory breaks, (3) help with regulation, and (4) access to a quiet space to retreat to when overwhelmed. DOE Ex. 3, at 3-4. Some comments in the IEP also noted LB’s “sensory issues which contribute to problems with dysregulation. He continues to present with an over-responsive sensory profile....” Id. at 3. Finally, as is undisputed, the CSE did not conduct a functional behavior assessment (“FBA”) of LB in advance of the meeting and did not develop a behavior intervention plan (“BIP”) for LB. See PI. 56.1 ¶25; Def. Counter Statement ¶ 25.

3.The events of February through July 2010

Shortly after the CSE meeting, the DOE sent the Parents a “Notice of Recommended Deferred Placement” form. DOE Ex. 4. The form is significant in this case. It first recapped the essential points of the IEP and informed the Parents that the DOE intended to wait until June 2010 to select a particular placement for LB. Id. Next, the form stated: “If you wish to visit a sample of the type of program recommended for your child, please contact Nancy Funke ... for assistance in arranging an appointment.” Id. Then, the form stated: ‘You will be receiving a Final Notice of Recommendation notifying you of a specific site, on or before 6-15-10.” Id. At the bottom of the page were boxes that the Parents could check to indicate that they either agreed or disagreed with the IEP recommendation, and that they either agreed or disagreed with the recommendation to defer the placement. Id.

In a February 18, 2010 letter to the DOE (and to Ms. Funke specifically), the Parents wrote that they agreed with a 12-month school year for LB, but, “at the present time,” they could “neither agree nor disagree with the DOE’s other recommendations for L[B] because we need more information to allow us to make an informed decision.” Parents Ex. HI. Specifically, the Parents requested “information regarding the schools at which we might be able to observe the program that the DOE recommended for L[B] and information regarding the teaching techniques and methodologies employed in these types of schools and programs.” Id. The Parents also requested assistance in “setting up appointments to view various classrooms in which the recommendations that the DOE made for L[B] might be implemented.” Id.

The DOE did not respond to this letter. See PL 56.1 ¶ 66; Def. Counter Statement ¶ 66.

As of June 15, 2010, the Parents had yet to receive notification of a final placement for LB. See PI. 56.1 ¶¶ 67, 69; Def. Counter Statement ¶ 69. On June 16, 2010, the Parents sent the DOE a letter, which they faxed the same day. See Parents Ex. Gl-G2. They wrote that they believed the DOE had failed to offer LB a FAPE because the DOE had (1) denied the Parents their “right to meaningfully participate in planning for his education,” and (2) failed to offer LB a placement that met his needs. Id. As a result, the Parents wrote, they were placing LB at the Rebecca School and would seek reimbursement. Id. The Parents did- not receive a reply letter.

On June 22, 2010, the Parents received a letter, dated June 15, 2010, that notified them of LB’s placement for the 2010-2011 school year, at P169M@P146M (“P.S. 169”). See PL 56.1 ¶¶51, 69; Def. 56.1 ¶ 13; Pl. Counter Statement ¶ 9; Def. Counter Statement ¶ 69. As its name suggests, P.S. 169 is a public special education school housed within a larger, regular public school (P.S. 146).

The same day — June 22, 2010 — LB’s father, EB, wrote a reply letter to the DOE, which he faxed the same day. “In trying to figure out whether P169M@P146M would be an appropriate school for L[B] to attend, I would appreciate it if you would help me in making an appointment to see the school as soon as possible to discuss L[B] with the school’s faculty and administration.” Parents Ex. FI. EB also requested information about, inter alia, LB’s teachers and teaching aides at that school, the types of “teaching methodologies used in the Special Class classes at the school,” and whether the DOE would provide LB with related services at the school. Id. The Parents did not receive a reply letter.

The Parents then began the process of scheduling a visit to P.S. 169. On June 22, 2010, EB called the general number at P.S. 146; he learned that he needed to speak with the Parent Coordinator, Denise Velasquez, to schedule a visit. Parents Ex. Kl. At about 12:50 p.m. on June 22, 2010, EB left a voicemail on Ms. Velasquez’s cell phone. Id. The following day, at about 1:15 p.m., EB left voicemails on both the “main” school number and Ms. Velasquez’s cell phone. Id.

On June 24, 2010, Ms. Velasquez told EB to call back on Monday, June 28, 2010, to set up a school visit for the following week; class was not in session the week of June 28. Id. They spoke again on June 28, and Ms. Velasquez said she would call EB on July 1, 2010 to schedule the visit. Id. On July 1, 2010, they set up a visit for Friday, July 9, 2010, at 9:30 a.m. Id. This tour was scheduled for after the start of the 12-month, 2010-2011 school year, which appears to have begun on or about July 6, 2010. See PL 56.1 ¶ 70; Def. Counter Statement ¶ 70; IHO Tr. 481.

On July 9, 2010, the Parents, along with a social worker from the Rebecca School (Andrea Albert), visited P.S. 169. See PI. 56.1 ¶ 71; Def. Counter Statement ¶ 71. However, all students were out of school that day on a field trip, so the Parents were unable to see classes in action. See IHO Tr. 172, 379-80, 482. They were, however, able to tour the school, see classrooms’ and facilities, and speak with a teacher. See IHO Tr. 172, 379-80, 482.

On July 20, 2010, the Parents wrote a letter to the DOE (which they faxed the same day), advising it of their concerns and reiterating their belief that the DOE had failed to provide a FAPE for LB and their intention to seek tuition reimbursement for LB’s attendance at the Rebecca School during the 2010-2011 school year. See Parents Ex. El. The Parents’ letter noted, among other things, that they were “not sure when [LB] would be scheduled to begin attending [P.S. 169], or whether the teachers in the school would be able to employ an appropriate teaching methodology that would allow L[B] to learn.” Id. In addition, they were “concerned that L[B]’s sensory integration and processing difficulties and related service needs cannot be adequately or appropriately addressed at” P.S. 169. Id. The Parents did not receive a reply letter.

B. Due Process Complaint and Impartial Hearing

On October 21, 2010, the Parents filed a due process complaint, challenging the DOE’s program on the grounds that: (1) the DOE had improperly refused to consider placing LB in a more restrictive program; (2) the February 5, 2010, CSE Review Team had not been duly constituted; (3) the DOE’s recommendations had been improperly predetermined before the meeting; (4) the IEP that grew out of the CSE meeting was based on insufficient and/or unreliable evaluative information; (5) the IEP’s proposed goals were insufficient and inappropriate; (6) the IEP’s proposed goals could not be implemented in the program that the DOE recommended; (7) the IEP improperly lacked a provision for transitional support services to aid LB in the transition from the Rebecca School to the DOE’s recommended program; (8) the DOE failed to conduct a FBA in advance of the meeting; (9) the DOE failed to consider whether to develop and include a BIP in the proposed IEP; (10) the DOE’s recommended placement was inappropriate; (11) the CSE failed to consider whether to recommend sufficient related services for LB; and (12) the Parents were denied the right to meaningfully participate in planning for LB’s education. See Parents’ Ex. A3-A10.

An impartial hearing began on March 11, 2011, and concluded on June 10, 2011. See IHO Tr.; Def. 56.1 ¶29. - At that hearing, the IHO held that the DOE had not provided LB with a FAPE. The IHO granted the Parents’ request for tuition reimbursement for the 2010-2011 school year, on three grounds — that: (1) the CSE had not consulted sufficient evaluative data on which to base LB’s 2010-2011 IEP (in particular, because the record did not show that the CSE had reviewed the 2009 psy-choeducational update, see IHO Dec. 5); (2) the CSE had not conducted a FBA and developed a BIP for LB, see id. at 5-6; and (3) the IEP failed to provide for parent counseling and training, see id. at 6. The IHO held that the Rebecca School was an appropriate unilateral placement for LB, see id. at 8, and that the equities favored the Parents in the matter, see id. at 9.

C. The SRO’s 2011 Decision

The DOE appealed the IHO Decision to the State Review Officer (“SRO”). The DOE primarily addressed the three points on which the IHO had relied, though in its Petition to the State Review Officer (“Petition”), the DOE also addressed the remaining issues in the Parents’ due process complaint, i.e., those that the IHO had not reached. See Petition to State Review Officer 39-46. The DOE further argued that the Rebecca School was not an appropriate placement for LB, id. 47-52, and that equitable considerations precluded reimbursement, most notably because the Parents “did not intend to send their child to public school,” id. ¶ 53.

The SRO, Justyn Bates, overturned the IHO’s decision. He found that: (1) the CSE based its IEP on sufficient evaluative data of LB to develop “an IEP that accurately reflected [his] special education needs,” SRO 2011 Dec. 14; (2) the CSE was not required to conduct a FBA or develop a BIP because the hearing record demonstrated that LB’s behavior “did not seriously interfere with instruction and could be addressed by the special education classroom teacher,” id. at 17; and (3) the IEP’s failure to include parent counseling and training did not amount to denial of a FAPE because the record reflected that “the assigned school would have provided this service,” id. at 18. The SRO also held that the various claims the Parents had made in their due process complaint that the IHO did not address in his decision had not been preserved for his review by the Parents, because they had not cross-appealed the IHO’s decision. See id. at 12.

D. This Court’s 2013 Decision

The Court found the SRO’s 2011 Decision persuasive as to the three issues that both the IHO and' SRO had addressed. The Court found that these three challenges were properly noted as procedural violations, but that “they [we]re more formal than substantive,” and the SRO’s analysis was thorough and “merit[ed] deference.” FB I, 923 F.Supp.2d at 583, 585, 586. The Court therefore granted' summary judgment for the DOE as to these three challenges, to wit, on the Parents’ claims that (1) the CSE had not based the IEP on sufficient evaluative data, (2) the CSE’s failure to conduct a FBA and develop a BIP denied LB a FAPE, and (3) the lack of a parent counseling and training provision in the IEP denied LB a FAPE. Id. at 590.

However, the Court held, contrary to the SRO, that the Parents had indeed preserved their remaining nine challenges. The Court held that the Parents had not been required to cross-appeal from the IHO’s decision in their favor in order to preserve these separate challenges. Id. at 586-89. Accordingly, the Court denied summary judgment to both parties “on the broader issue” of whether LB had been denied a FAPE. Id. at 590. The Court stated that “judicial resolution of such claims is premature until the SRO has addressed the remaining challenges to the IEP raised before, but not addressed by, the IHO.” Id.

The Court therefore remanded the case to the SRO to address the Parents’ remaining challenges that:

(1) the DOE improperly refused to consider placing LB in a more restrictive program; (2) the February 2010 CSE was improperly constituted; (3) the CSE’s recommendations were predetermined without parental input; (4) the goals were insufficient, inappropriate, and would not allow LB to make meaningful progress across all domains; (5) alternatively, the proposed goals could not have been implemented in the recommended program; (6) the February 2010 IEP should have included transitional support services to allow LB to move from the Rebecca School to the provided placement; (7) the assigned school was inappropriate; (8) the CSE failed to consider whether to recommend sufficient related services for LB; and (9) the parents were denied meaningful parent participation.

Id. at 589. The Court added a final note: “Without limiting the scope of the SRO’s determination, the Court observes that the Parents’ claims that the IEP was substantively inadequate, and that the DOE’s recommended placement was not equal to the task of satisfactorily educating LB, merit close and thoughtful attention.” Id.

E. The SRO’s 2014 Decision on Remand

On February 4, 2014, the SRO rendered its second decision, ruling, across the board, against the Parents. He found that (1) the composition of the CSE was proper; (2) the CSE’s determinations had not been predetermined, and “the student’s parents and special education teacher from the Rebecca School were afforded a meaningful opportunity to participate in the development of the student’s IEP at the February 5, 2010 IEP,” SRO 2014 Dec. 12; (3) the DOE did not need to consider more restrictive programs because it had properly assigned LB to the least restrictive program that it felt appropriate for him; (4) the IEP’s goals for LB were appropriate, sufficiently measurable, and were not overly broad; (5) the failure to include transitional support services in the IEP did not “rise[] to the level of denial of a FAPE,” id. at 15; (6) the SRO had already addressed, in its 2011 Decision, the lack of parental training in the IEP; and (7) it would be “speculative” to address any challenge to the placement school’s ability to implement the IEP, as “it would be inequitable to allow the parent to acquire and rely on information that post-dates the relevant CSE meeting and IEP,” id. 15-18.

F. Procedural History of This Action

On June 2, 2014, having again exhausted the administrative process as required, the Parents filed the Complaint in this case. Dkt. 1.

On December 19, 2014, the Parents filed a motion for summary judgment, Dkt. 17, and a memorandum of law in support, Dkt. 19 (“PI. SJ Br.”). On January 16, 2015, the DOE filed its own motion for summary judgment, Dkt. 20, and a memorandum of law addressing both parties’ motions, Dkt. 21 (“DOE SJ Br.”). On February 6, 2015, the Parents filed their opposition to the DOE’s motion for summary judgment, Dkt. 22 (“PI. Opp. Br”). On February 27, 2015, the DOE filed its reply to the Parents’ opposition brief, Dkt. 28 (“DOE Reply Br.”).

On March 13, 2015, the Court held extended argument on the motions for summary judgment. See Tr.

II. Applicable Legal Standards

A. Legal Framework

The IDEA requires a state that receives federal education funding to provide all children with disabilities with a “free appropriate public education.” 20 U.S.C. § 1412(a)(1)(A); see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir.2005). A FAPE should “emphasize[] special education and related services designed to meet [a disabled child’s] unique needs and prepare [the child] for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). To accomplish that purpose, the DOE must develop an IEP for each disabled child that “sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.” Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); see also 20 U.S.C. § 1414(d)(1)(A); T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 415 (2d Cir.2009). The IEP must be “reasonably calculated to enable the child to receive educational benefits.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); see also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir.2007) (citing Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998)). It must provide an “‘appropriate education, not one that provides everything that might be thought desirable by loving Parents.’ ” R.B. ex rel. D.B. v. N.Y. Dep’t of Educ., 603 Fed.Appx. 36, 38 (2d Cir.2015) (summary order) (quoting Walczak, 142 F.3d at 132); see also Bryant v. N.Y. State Educ. Dep’t, 692 F.3d 202, 215 (2d Cir.2012).

New York law charges a CSE with developing an IEP for a disabled child. N.Y. Educ. L. § 4402(l)(b)(l); see also R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 175 (2d Cir.2012); Walczak, 142 F.3d at 123. The CSE must consist of: the Parents of the student in question; the student’s regular or special education teacher; a school psychologist; a district representative “qualified to provide or administer or supervise special education and ... knowledgeable about the general curriculum and the availability of resources of the school district”; and an additional parent representative, among others. N.Y. Educ. L. § 4402(1)(b)(1)(a).

When a parent believes that the state has failed to offer his or her child a FAPE, the parent may unilaterally place the child in a private school and seek reimbursement from the school district. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009); see also M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 246 (2d Cir.2012); Cerra, 427 F.3d at 192. The parent must then file a due process complaint that challenges the appropriateness of the IEP and attend a hearing before an IHO. N.Y. Educ. L. § 4404(1).

The U.S. Supreme Court has established a three-step reimbursement test. Under this Burlington-Carter test, the DOE is required to pay for the private school tuition only if: (1) the program recommended by the IEP was inadequate or inappropriate; (2) the alternative placement the Parents chose was appropriate; and (3) the equitable factors weigh in favor of reimbursement. See Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 12-16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 373-74, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); see also T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 152 (2d Cir.2014); Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363-64 (2d Cir.2006). A party aggrieved by an IHO’s decision may appeal to an SRO. 20 U.S.C. § 1415(g); N.Y. Educ. L. § 4404(2). An appeal from the decision of an SRO may be brought as a civil action in federal or state court. 20 U.S.C. § 1415(i)(2)(A); N.Y. Educ. L. § 4404(3).

B. Standard of Review

Summary judgment in the context of an IDEA case “involves more than looking into disputed issues of fact; rather, it is a pragmatic procedural mechanism for reviewing administrative decisions.” R.E., 694 F.3d at 184 (quoting A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir.2009)). “In considering an IDEA claim, a district court ‘must engage in an independent review of the administrative record and make a determination based on a preponderance of the evidence.’ ” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837-38 (2d Cir.2014) (quoting Gagliardo, 489 F.3d at 112). At the same time, however, the “role of the federal courts in reviewing state educational decisions under the IDEA is circumscribed. Although the district court must base its decision on the preponderance of the evidence, it must give due weight to the administrative proceedings, mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.” A.C., 553 F.3d at 171 (citations and alterations omitted).

When the decisions of an IHO and a SRO conflict, the Court should generally defer to the SRO’s decision, as the “final decision of the state authorities,” R.E., 694 F.3d at 189 (quoting A.C., 553 F.3d at 171), particularly “when the state officer’s review ‘has been thorough and careful,’ ” id. at 184 (quoting Walczak, 142 F.3d at 129). But when “the district court appropriately concludes that the SRO’s determinations are insufficiently reasoned to merit that deference, and in particular where the SRO rejects a more thorough and carefully considered decision of an IHO, it is entirely appropriate for the court, having in its turn found the SRO’s conclusions unpersuasive even after appropriate deference is paid, to consider the IHO’s analysis, which is also informed by greater educational expertise than that of judges.” Id. at 189 (quoting M.H., 685 F.3d at 246). SRO and IHO decisions that involve the substantive adequacy of an IEP and educational methodologies are to be given more weight than determinations about the procedure according to which an IEP was developed or whether objective indications of a student’s progress exist. See M.H., 685 F.3d at 244.

III. Discussion

The Parents have narrowed their challenges on appeal. At the first step of the Burlington-Carter test, they now raise five arguments — two procedural and three substantive. Their procedural challenges are that the DOE (1) predetermined its recommendations prior to the CSE meeting, and (2) denied the Parents a meaningful opportunity to participate in LB’s education. Their substantive challenges are that (1) the IEP was incomplete and insufficiently detailed as to LB’s sensory needs, (2) the IEP failed to include transitional services for LB, and (3) the DOE’s proposed placement (P.S. 169) was inappropriate because it could not have implemented the IEP. At the second step of the Burlington-Carter test, the Parents argue that their private placement at the Rebecca School for the 2010-2011 school year was appropriate. At the third and final step, they contend that the equities favor them, warranting full reimbursement.

The Court first addresses the Parents’ procedural challenges, and then their substantive challenges. It then proceeds to the second and third steps of the Burlington-Carter test.

A. Procedural Challenges

1. Preparation vs. predetermination

The Parents’ first argument is that the DOE predetermined its recommendations for the IEP. Although the Parents make this argument only fleetingly, see PI. SJ Br. 12, the Court addresses it out of comprehensiveness.

The SRO rejected the Parents’ argument. The SRO noted that the CSE may consider possible recommendations for a student, before the CSE meeting, so long as “the CSE understands that changes may occur at the CSE meeting.” SRO 2014 Dec. 11. The SRO cited case law which aptly notes that “predetermination is not synonymous with preparation.” Id. (quoting Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 (6th Cir.2006)). As the Second Circuit has put the point, so long as the CSE retains “an open mind,” preparation is permitted: “IDEA regulations allow school districts to engage in ‘preparatory activities ... to develop a proposal or response to a parent proposal that will be discussed at a later meeting’ without affording the parents an opportunity to participate.” T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir.2009) (quoting 34 C.F.R. §§ 300.501(b)(1) & (b)(3)).

Although the SRO’s analysis of this particular challenge is brief, it is persuasive. The SRO identified the proper, and controlling, legal principle — that preparation is not the same as predetermination. And, in various respects, the record firmly supports the SRO’s determination that, in this case, the CSE merely prepared and came to the meeting with an open mind. First, as the SRO noted, the CSE considered multiple program structures (e.g., 12:1:1 and 8:1:1), but concluded that larger structures were insufficient to meet LB’s needs; instead, the CSE recommended a 6:1:1 structure. See SRO 2014 Dec. 9; see also DOE Ex. 2 (DOE notes from CSE: “12:1:1 & 8:1:1 were rejected. Requires a smaller student-teacher ratio. We recommend 6:1:1 to meet his sensory needs, and emotional needs.”). Second, the record confirms that the CSE discussed, and agreed upon, a 12-month program (as opposed to, say, a 10-month program). See DOE Ex. 2. Third, as the SRO noted, the hearing record reflected active participation, throughout the CSE meeting, by LB’s Parents and by the Rebecca School teacher who participated by phone. See SRO 2014 Dee. 11. Fourth and finally, the record indicates that a number of prepared, typed-out recommendations were crossed out during the CSE meeting — either because those recommendations were deemed inappropriate for LB or because LB had, in fact, already achieved those goals. See, e.g., SRO Dec. 13 (“Although draft goals were typed into a draft IEP prior to the CSE meeting, the CSE made clear that the goals were in draft form and could be changed, and were in fact revised during the meeting.”) (citing IHO Tr. 53-55); DOE Exs. 2 & 3 (the following typed-out lines were crossed out by hand: “decoding” — a reading skill; identifying letter-sound relationship on one-to-one correspondence, with 80% accuracy — a short-term objective; and independently reading or singing along to a motivating passage— a short-term objective); see also IHO Tr. 36 (“[I]f you turn to page 6-1 [of the IEP] where we have the goals, you could see that [LB] had already met one of those goals, so we crossed that out. And then there was another one in the comprehension, and we crossed that out, because he had already met that goal-”).

In sum, as to this challenge, the Court defers to the well-reasoned and well-supported decision of the SRO.

2. The Parents’ right to meaningful participation

The Parents next argue that the DOE denied their right to meaningful participation. The crux of this argument is that the Parents have the right to participate not only at the CSE meeting, but also in the broader school-selection process— whether by providing input or at least being able to evaluate the DOE’s proposed placement in a timely fashion in order to make an informed decision about whether that school can implement their child’s IEP. Factually, the Parents argue that the DOE repeatedly ignored their letters seeking information about LB’s placement, notified them of the placement at the 11th hour (and days later than promised), failed to schedule a school visit until after the 2010-2011 school year had started, scheduled that visit on an inopportune day when no classes were held, and, when the Parents ultimately rejected P.S. 169, declined to offer LB an alternative placement. Notably, the DOE does not dispute these facts. Rather, it makes two arguments in opposition: that (1) the Parents waived the right to make this argument, and (2) the law does not provide the Parents the participatory right they claim; rather, Parents may only .attend and participate at the CSE meeting. The DOE is wrong on both points.

i. The DOE’s claim of waiver

The DOE first argues that the Parents’ reply brief was “the first time” they raised the claim of a broader participatory right that extends “beyond the CSE meeting itself.” DOE Reply Br. 4. That claim is wrong. Three times before, the Parents made this claim.

First was in their due process complaint. The Parents made this claim, under a bolded, all-capital-letter heading stating, “THE PARENTS WERE DENIED THE RIGHT TO MEANINGFULLY PARTICIPATE IN PLANNING FOR L[B]’S EDUCATION.” Parents Ex. A10. There, the Parents argued that: (1) “the parents were denied the right to meaningfully participate in all stages of the IEP development and placement process,” and (2) “the district denied the parents the opportunity to have it consider their opinions and/or input and thus, denied them the right to meaningfully participate in planning for L[B]’s education, thus resulting in a denial of a FAPE.” Id. (emphasis added).

Second, both SRO opinions, and this Court’s earlier opinion, recognized that the Parents were claiming a right to participate beyond simply participating at the CSE meeting. See FB I, 923 F.Supp.2d at 575; SRO 2011 Dec. 7; SRO 2014 Dec. 4.

Third, both parties addressed this point in their opening briefs. The Parents stated, inter alia, that: “[The SRO’s] conclusion requires the presumption that the development of a student’s IEP begins and ends with the CSE meeting. This is not correct or complete where, as here, an appropriate site placement is a substantive part of the student’s program, and this aspect of the program is neither addressed nor determined during the CSE meeting. ... The Parents’ concerns about the site chosen by the DOE were, at all times, completely and utterly ignored by the DOE.” PI. SJ Br. 13. And the DOE acknowledged that this argument had been made, for the purpose of responding to it: “Plaintiffs correctly note that the IDEA provides procedural safeguards that ensure that parents are afforded the opportunity to ‘participate in meetings with respect to the identification, evaluation, and educational placement of the child.’ 20 U.S.C. § 1415(b)(1). However, Plaintiffs misinterpret this provision of the IDEA as contemplating that a parent is entitled to input in determining which public, or approved private school the DOE would recommend as a prospective placement for a given student.” DOE SJ Br. 17.

The Court therefore rejects the DOE’s waiver argument. The Parents have both timely and consistently raised this claim. See, e.g., C.U. v. N.Y.C. Dep’t of Educ., 23 F.Supp.3d 210, 223 (S.D.N.Y.2014) (arguments are not waived if they are “either raised in the plaintiffs’ Due Process Complaint or agreed to by the defendant”; court noted further exceptions that broaden the scope of review) (citing C.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 78 (2d Cir.2014)).

ii. Did the Parents have a participatory right with respect to the proposed placement?

The Court turns next to the heart of the Parents’ claim of a procedural violation of the IDEA: Do parents’ procedural rights stop the moment the CSE meeting ends? In other words, is the DOE’s “snapshot” conception of the Parent’s participatory right correct? Or do parents have a continuing participatory right — including, relevant here, to obtain timely information about, and/or to comment upon, the DOE’s placement decision? For the reasons that follow, the Court rejects the DOE’s myopic conception of a right limited to participating at the CSE meeting. The Court holds, including based on the Second Circuit’s decision in M.O. v. New York City Department of Education, 793 F.3d 236, 244-45 (2d Cir.2015), that parents have the right to obtain relevant information in a timely fashion about the DOE’s proposed placement of their child, so as to enable them to assess and comment on that placement.

Analysis properly begins with the procedural protections afforded parents by the IDEA. As the Supreme Court has emphasized, the IDEA is solicitous of parents’ participatory rights. The statute “establishes various procedural safeguards that guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.” Honig, 484 U.S. at 311— 12, 108 S.Ct. 592 (emphasis added); see also Rowley, 458 U.S. at 205, 102 S.Ct. 3034 (describing IDEA’S procedural protections as “giving parents and guardians a large measure of participation at every stage of the administrative process”) (emphasis added). One point at which such participation is guaranteed is in the development of the IEP. See, e.g., Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007) (reviewing relevant provisions); Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (same). But the case law reflects the IDEA’S goal, more broadly, of “set[ting] up general procedural safeguards that protect the informed involvement of parents in the development of an education for their child.” Winkelman, 550 U.S. at 524, 127 S.Ct. 1994.

To this end, the IDEA requires that states and localities that receive federal funding “establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies.” 20 U.S.C. § 1415(a). The statute sets out a non-exhaustive list of these safeguards, including:

(1) An opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child.

(6) An opportunity for any party to present a complaint—

(A) with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child....

20 U.S.C. § 1415(b) (emphasis added). As the Supreme Court has stated, “[t]he core of the statute ... is the cooperative process that [the IDEA] establishes between parents and schools.” Schaffer, 546 U.S. at 53, 126 S.Ct. 528; see also Rowley, 458 U.S. at 205, 102 S.Ct. 3034 (“[T]he importance Congress attached to the[] procedural safeguards [in the IDEA] cannot be gainsaid”).

Consistent with the statutory text and purpose, district courts in this Circuit have held in several cases that parents have procedural rights that extend beyond the CSE meeting. The most sustained analysis is found in Judge Cote’s thoughtful and persuasive decision in C.U. v. New York City Department of Education, 23 F.Supp.3d 210, 225, 227-29 (S.D.N.Y.2014). There, after reviewing the provisions and precedents quoted above, Judge Cote explained:

As set forth above, the Supreme Court has specifically recognized that parents have a broad right to participate in all decisions affecting a child’s education, a right that is reflected in the breadth of the IDEA provisions cited above. Because the procedural protections in the IDEA are intended to ensure substantive outcomes, see Rowley, 458 U.S. at 206, 102 S.Ct. 3034, it follows that parents have a procedural right to evaluate the school assignment, ie., the right to acquire relevant and timely information as to the proposed school.

With regard to the Student here, crucial issues going to the substantive adequacy of the FAPE could not be established at the March 2, 2011 CSE meeting because school placement had not yet been determined. As set forth in the IEP, because of the Student’s seizure disorder, any school had to have quiet place to recover from seizures and a nurse on-site to administer medication. Thus, inasmuch as the school placement in this case raises issues that go directly to the substantive adequacy of the DOE’s proposed FAPE for the Student, and inasmuch as the Supreme Court has explained that the procedural protections in the IDEA are broad and intended to ensure that parents have an opportunity to give meaningful input on all substantive issues, the Parents had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP.

23 F.Supp.3d at 227 (footnote omitted). Judge Cote’s analysis has been adopted by, among others, Judge Weinstein, who, in language apt here, held that “parents have a procedural right to evaluate the school assignment, i.e., the right to acquire relevant and timely information as to the proposed school.” V.S. v. N.Y.C. Dep’t of Educ., 25 F.Supp.3d 295, 299 (E.D.N.Y.2014) (quoting C.U., 23 F.Supp.3d at 227); see also id. at 301 (“The SRO and the IHO erred by failing to consider the parent’s right to meaningfully participate in the school selection process.... D-.S. was therefore denied her right to evaluate the child’s school site when the DOE directed her to inspect a school her child would not attend.”); cf. D.C. v. N.Y.C. Dep’t of Educ., 950 F.Supp.2d 494, 510 (S.D.N.Y.2013) (“Prior to making a placement decision, a parent must have sufficient information about the proposed placement school’s ability to implement the IEP to make an informed decision as to the school’s adequacy.”).

The existence of such a procedural right logically follows, too, from the Second Circuit’s jurisprudence on a related issue: under what circumstances parents may challenge the substantive adequacy of the DOE’s proposed placement. The Second Circuit has held that parents may not challenge an IEP based merely on speculation that the proposed placement school, which has the resources to implement the IEP, will nevertheless fail to adhere to it. See R.E., 694 F.3d at 195. However, as the Circuit held earlier this year in M.O., pro-' spective challenges are permitted if they concern the “proposed placement school’s capacity to implement a child’s IEP.” 793 F.3d at 244 (emphasis added). As the Second Circuit put the point: “School districts do not have ‘carte blanche’ to assign a child to a school ‘that cannot satisfy the IEP’s requirements.’” Id. (quoting T.Y., 584 F.3d at 420). To hold otherwise, the Circuit reasoned, “would require parents to send their child to a facially deficient placement school prior to challenging that school’s capacity to implement their child’s IEP, which is ‘antithetical to the IDEA’[s] reimbursement process.’” Id. at 244-45 (quoting V.S., 25 F.Supp.3d at 300).

In M.O., the Circuit therefore rejected the DOE’s position that “a child must physically attend a proposed placement school.before challenging that school’s ability to implement their IEP.” Id. at 243. In M.O., the Second Circuit provided two helpful examples of prospective challenges to the placement school that parents are permitted to make: (1) “an IEP recommending a seafood-free environment, for a child with a life threatening seafood allergy, could not be implemented at a proposed school that was not seafood free,” id. at 244 (citing D.C., 950 F.Supp.2d at 513), and (2) “an IEP recommending one-on-one occupational therapy, outside of the classroom, could not be implemented at a school that provided only in-class occupational therapy in a group setting,” id. (citing B.R. v. N.Y.C. Dep’t of Educ., 910 F.Supp.2d 670, 676-79 (S.D.N.Y.2012)).

Implicit in the Second Circuit’s M.O. holding is that the child’s parents have the right to obtain information on which to form a judgment about the proposed placement. In particular, to evaluate whether the IEP can be implemented at the proposed placement, the parents must be in position, at the time they are “actually considering [that] placement,” id. (quoting B.R., 910 F.Supp.2d at 677), to meaningfully assess it. The substantive right recognized by the Second Circuit in M.O. would be of little value if parents did not have the right to obtain relevant information in time to assess the placement and, if merited, to challenge it.

The Parents here; therefore, had the procedural right to make an informed evaluation of the school placement the DOE proposed for LB. The Court next inquires whether that right was violated here.

iii. The DOE violated the Parents’ participatory right

The SRO held that the Parents’ participatory right was not violated because they “were afforded a meaningful opportunity to participate in the development of the student’s IEP at the February 5, 2010 CSE meeting.” SRO 2014 Dec. 12 (emphasis added). The SRO’s analysis followed from its framing of the issue in this fashion — the SRO focused singularly on the CSE meeting. For example, the SRO noted that the Parents had been informed of the CSE meeting in advance; that they had participated at the meeting; that they had invited LB’s Rebecca School teacher to the meeting; and that they “were aware they could bring whoever had' knowledge or expertise of the student” to the meeting, but “chose to invite only the student’s special education teacher at the Rebecca School.” Id. at 11.

The SRO, notably, did not address the Parents’ argument that the DOE violated their right to participate in post-CSE meeting events, such as the right to comment meaningfully on the DOE’s proposed placement. To be sure, in recounting the facts, the SRO recounted the Parents’ letters bearing on this point, including their February 18, 2010 letter seeking information; their June 16, 2010 letter notifying the DOE of their intent to reenroll LB at the Rebecca School; their June 22, 2010 letter seeking additional information about P.S. 169; their July 9, 2010 visit to P.S. 169; and their July 20, 2010 letter explaining why they regarded P.S. 169 as an inadequate placement. Id. at 3. Strikingly, however, the SRO did not mention that the DOE did not respond to any of these letters. And in his analysis, the SRO did not acknowledge that the crux of the Parents’ claim of a procedural violation is their claim of exclusion from meaningful participation at the placement stage.

As in C.U., the SRO therefore “committed legal error. This error was one of framing, rather than application.” 23 F.Supp.3d at 227. The Court accordingly declines to defer to the SRO’s determination that the Parents’ procedural rights were respected. The Court proceeds to consider this issue itself. It is appropriate to do so: The relevant facts are not disputed; and the issue at hand does not call upon educational expertise, but instead is a straightforward one of proper procedure which courts are well-equipped to address.

A careful review of the record here compels the conclusion that the DOE violated the Parents’ participatory rights under the IDEA. As noted, the crux of the right to meaningfully participate in the school selection process is the right is “to evaluate the school assignment, ie., the right to acquire relevant and timely information as to the proposed school.” V.S., 25 F.Supp.3d at 299 (quoting C.U., 23 F.Supp.3d at 227). Regrettably, the record here reveals a series of lapses by the DOE that, in practice, impaired the Parents’ ability to so participate. The following timeline, highlighting key moments, is revealing:

1. February 5, 2010: The CSE convened. Shortly after the CSE meeting, the DOE sent a form to the Parents, informing them that the DOE intended to wait until June 2010 to select a particular placement for LB. The form said: “You will be receiving a Final Notice of Recommendation notifying you of a specific site, on or before 6-15-10.” The form added: “If you wish to visit a sample of the type of program recommended for your child, please contact Nancy Funke ... for assistance in arranging an appointment.”

2. February 18, 2010: The Parents wrote a letter to the DOE (and to Ms. Funke specifically), requesting information about (1) schools where they could “observe the program that the DOE recommended for L[B],” and (2) the teaching methodologies used at these types of schools. The Parents also requested assistance in “setting up appointments to view various classrooms in which the recommendations that the DOE made for L[B] might be implemented.” The DOE did not respond to this letter.

3. June 15, 2010: Contrary to the DOE’s representation in February, the Parents had yet to receive a final notice of recommendation.

4. June 16, 2010: The Parents wrote, in a letter to the DOE (which they faxed the same day), that they believed the DOE had failed to offer LB a FAPE because the DOE had (1) denied their right to meaningfully participate in planning for LB’s education, and (2) failed to offer LB a placement that met his needs. As a result, the Parents were placing LB at the Rebecca School and would seek reimbursement. The DOE did not respond to this letter.

5. June 18, 2010: This was the Parents’ deadline to reenroll LB at the Rebecca School.

6. June 22, 2010: The Parents received the DOE’s proposed placement, dated June 15, 2010, at P.S. 169.

7. June 22, 2010: The Parents wrote, in a letter to the DOE (which they faxed the same day), that they sought assistance “in making an appointment to see the school as soon as possible to discuss L[B] with the school’s faculty and administration.” They also requested information about LB’s teachers and teaching aides, the types of “teaching methodologies used in the Special Class classes at the school,” and whether the DOE would provide LB with related services at the school. The DOE did not respond to this letter.

8. June 22, 2010: The Parents left a voicemail, at about 12:50 p.m., with P.S. 169’s Parent Coordinator, Denise Velasquez, seeking to schedule a visit.

9. June 23, 2010: The Parents left further voicemails, at about 1:15 p.m., on both the “main” school number and Ms. Velasquez’s cell phone.

10. June 24, 2010: Ms. Velasquez told the Parents to call back on Monday, June 28, 2010, in order to set up a school visit for the week after that; class was not in session the week of June 28.

11. June 28, 2010: Ms. Velasquez said she would call the Parents on July 1, 2010 to schedule the visit.

12. July 1, 2010: The Parents arranged a visit to P.S. 169 for Friday, July 9, 2010, at 9:30 a.m.

13. July 6, 2010: The 2010-2011 school-year began at P.S. 169.

14. July 9, 2010: The Parents, along with a social worker from the Rebecca School, visited P.S. 169. However, all of the students were out of school that day on a field trip, and so the Parents were unable to see classes in progress. The Parents also were not told definitively who LB’s teacher would be.

15. July 20, 2010: The Parents wrote, in a letter to the DOE (which they faxed the same day), that they believed the DOE had failed to provide a FAPE for LB, and they intended to seek tuition reimbursement for LB’s attendance at the Rebecca School during the 2010-2011 school year. They raised a series of concerns about P.S. 169. The DOE did not respond to this letter.

Five features of this chronology are worth highlighting.

First, the DOE determined to wait until June, after a February CSE, to recommend a placement for LB.

Second, the Parents wrote the DOE four times, twice attempting to take the DOE up on its offer to arrange for a school visit, but the DOE — which does not dispute receiving these letters — inexplicably did not respond to them. These included the letters of February 18 and June 22, 2010, which requested assistance arranging visits and information about teachers and teaching methodologies.

Third, the information the Parents sought was directly relevant to their ability to assess the proposed placement and its capacity to implement LB’s IEP. For example, the IEP required that the school provide LB with immediate access to sensory materials, and set out goals that drew upon (and used the terminology of) a particular teaching methodology (that used at the Rebecca School — DIR/Floortime). The Parents understandably sought to assess whether a proposed placement school could implement those aspects of the IEP. Did it have the requisite sensory materials? Did its teachers have background in teaching using the methodology referenced in the IEP? Compare M.O., 793 F.3d at 244.

Fourth, June 18 was the deadline to reenroll LB at the Rebecca School. As of that key date, the Parents had not been notified of a proposed placement; the DOE had gone radio silent for four months; and the Parents lacked any tangible ability to assess whether a proposed placement would be appropriate for LB’s needs. The Parents, at this point, had little choice but to enroll him at the Rebecca School. At LB’s age, education was compulsory. See N.Y. Educ. L. § 3205(l)(a). To the Parents’ credit, in the contract they signed with the Rebecca School in June, see Parents Ex. Q, there was an “escape” clause: If the Parents received a public placement and wanted to send LB there, they could pull LB out of the Rebecca School until September 7, 2010, and they would lose only their deposit ($1,000), not the full annual tuition ($92,-100), see id. ¶ 4(a).

Fifth, the Parents were not at fault. They consistently acted swiftly and conscientiously. They wrote to the DOE in February when they received the notice of deferral; they wrote to the DOE on June 22, the day they received the proposed placement; and, throughout late June, they repeatedly contacted Ms. Velasquez to schedule a school visit. In contrast, the DOE persistently was non-responsive, or dismayingly slow to respond. After the Parents contacted Ms. Velasquez on June 24, 2010, and again on June 28, 2010, she told the Parents to call back four days later; ultimately, she scheduled a school visit for July 9, 2010. That was precious time. During the two-and-a-half weeks between June 22 and July 9, 2010, the new school year had begun. And on the July 9 visit, representatives of P.S. 169 were unable to tell the Parents who LB’s teacher would be; and the visit was of limited utility to the Parents because no classes were in session — all students were out of school on a field trip.

Pressed at argument, the DOE’s counsel conceded that, on review of the facts, “it does feel like rough treatment” of the Parents by the DOE. Tr. 51. But the DOE’s counsel argued that the Parents have no viable claim, because they had unilaterally rejected the IEP before they even received the DOE’s public placement — thus, counsel argued, the ensuing events were irrelevant. Tr. 50-51. But that is unpersuasive: The Parents’ reason for rejecting the IEP, and enrolling LB in the Rebecca School, was that the IEP could not be meaningfully evaluated independent of the proposed placement’s ability to implement it. See, e.g., C.U., 23 F.Supp.3d at 227. The DOE had not communicated that placement to the Parents as of the deadline for enrollment at the Rebecca School. See, e.g., IHO Dec. 9. Viewing their actions differently, the Parents did not reject the IEP so much as they selected the only option before them as of that date. And once they did learn of LB’s proposed placement, the Parents promptly and repeatedly told the DOE that they wanted to closely consider that option.

Judge Cote’s analysis in C.U., involving a similar unresponsiveness by the DOE in the face of efforts by parents to evaluate a proposed placement, again provides helpful guidance. She wrote:

[T]he DOE provided an FNR [a Final Notice of Recommendation with a proposed school placement] on June 18, just days before the 2011-2012 school year began for the Student on July 5. Notably, the DOE had previously promised that the FNR would be received no later than June 15. The FNR stated that, if the DOE did not hear from the Parents by June 28, the proposed recommendation would be put into place. Upon the Parents’ return from vacation on June 27, they immediately and diligently set about attempting to contact the recommended school. They were unable to leave a message with the school, possibly because it was changing its voicemail software. Their challenges in reaching the recommended school were documented in letters they wrote and faxed to the CSE explaining their problems. The CSE did not respond to any of these letters. Having been unable to arrange a visit to Horan [the proposed placement] or to inquire about its facilities or programs, the Parents enrolled the Student [at the] Rebecca [School] on July 5. These delays and lack of response by the DOE violated the Parents’ procedural right to evaluate the school placement so that they could make an informed decision about the child’s school. Because this violation significantly impeded the Parents’ opportunity to participate in the decision making process concerning the provision of the FAPE, this procedural violation constitutes a denial of a FAPE and satisfies the first element of the Burlington^Carter test.

C.U., 23 F.Supp.3d at 227-28. Like C.U.’s parents, LB’s were promised an FNR by June 15, but that promise went unmet; made good-faith attempts to acquire relevant information given the impending start of the new school year; but were inexplicably unable to secure information, or even responsiveness, by the DOE. Indeed, here, the DOE had significantly more time to provide the Parents with the information sought, making this case, if anything, a stronger candidate for finding a procedural violation.

In sum, a parent’s IDEA right to meaningfully participate means, at a minimum, the right to obtain relevant and timely information as to the proposed school. V.S., 25 F.Supp.3d at 299; C.U., 23 F.Supp.3d at 227. LB’s Parents received neither. This violation denied LB a FAPE. See, e.g., V.S., 25 F.Supp.3d at 301; C. U., 23 F.Supp.3d at 227-28; see generally R.E., 694 F.3d at 189-90 (procedural violations constitute a denial of a FAPE if they “impeded the child’s right to a [FAPE],” “significantly impeded the parents’ opportunity to participate in the deci-sionmaking process,” or “caused a deprivation of educational benefits”) (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)).

Having found that the DOE denied LB a FAPE, the Co