“Appropriate” School Psychology Practice? You Be the Judge IV

Volume 44 Issue 1

By Perry A. Zirkel

For this fourth article in the series reviewing recent court decisions concerning appropriate school psychology practice from both professional and legal perspectives, consider the summary of the New York City case below and the question-and-answers after it with regard to the issue of whether the parent was entitled to tuition reimbursement under the Individuals with Disabilities Education Act (IDEA). The previous articles were based instead on the threshold issue of eligibility (Zirkel, 2014a, 2014b, 2015).

The primary step for the determination of the tuition reimbursement remedy ascertaining whether the school district's proposed IEP met the statutory obligation for a free appropriate public education (FAPE). The case summary below is selectively focused specifically for the readership of school psychologists. The questions following the case summary address other variations of the multistep approach courts follow for the reimbursement remedy based on other recent New York cases in which the school psychologist played a key role. For example, the variations extend to the subsequent step of whether the parent's unilateral placement was appropriate.

The Case

G. is a 14-year-old boy with autism. He exhibits severe developmental delays and is largely nonverbal. His problematic behaviors include tantrums, aggression toward others, and both hitting and biting himself. He requires specialized measures to address his sensory needs.

Starting in 2006-2007, he attended the Rebecca School, a for-profit school in New York City designed for students with neurodevelopmental disorders, including autism. His classroom for each of his past 4 years has had eight students, one teacher, and three assistants, designated as "8:1:3."

In January 2010, the district convened an IEP team to develop his IEP for the 2010-2011 school year. The team included district school psychologist R.F., G.'s mother, and his teacher at Rebecca School. The resulting IEP proposed placement in a specialized school for a 12-month year with a 6:1:1 ratio. Although the district had not performed a functional behavioral assessment (FBA), the IEP included a behavioral intervention plan (BIP). It also provided an additional full-time crisis management paraprofessional and various related services (occupational therapy for five 1:1 30-minute sessions per week; speech therapy for five 1:1 30-minute sessions per week; physical therapy for three 1:1 30-minute sessions per week; and minibus transportation, with limited travel time, to and from school). In a subsequent written notice, which included procedural safeguards, the district specified the site as P.S. 94, a specialized public school within limited travel time of G.'s residence.

After visiting the site with the Rebecca School social worker, the parent promptly notified the district of her rejection of the proposed placement. Her written notification informed the district that she was reenrolling G. at the Rebecca School and requested reimbursement for the tuition and transportation. She filed for a due process hearing approximately 2 weeks later, claiming that the proposed IEP did not meet the procedural and substantive standards of the IDEA. Her procedural claims included "predetermination," specifically that the district refused to consider continuing the private placement for G. and failed to take into account the parent's views.

The hearing process, including the resolution meeting and the subsequent seven hearing sessions, took most of the next school year. The school psychologist was one of the witnesses. She testified that (a) the parent had actively participated in the IEP process and, as the IEP meeting minutes confirmed, when asked whether she had anything to add to the IEP, the parent answered "no"; (b) G.'s behaviors and the strategies to address them were well documented in the BIP and throughout the rest of the proposed IEP; (c) the BIP included revisions based on the input of the parent and G.'s Rebecca School teacher; and (d) the 6:1:1 ratio, with the added crisis management paraprofessional, and the other provisions of the proposed IEP were reasonably calculated to meet G.'s individual needs.

On June 10, 2011, the hearing officer ruled in favor of the parent, awarding the requested reimbursement. More specifically, the hearing officer concluded that (a) the proposed IEP was procedurally inappropriate in terms of meaningful parental participation and substantively inappropriate in terms of its student-to-staffing ratio; (b) the Rebecca School was appropriate for G.; and (c) the parent had duly cooperated in the IEP process, thus not warranting any equitable reduction in the reimbursement. The district appealed the hearing officer's decision.

Finally, New York's special education law has some special features. For example, New York's regulations provide a specific definition for a BIP, including that it must be based on an FBA. Moreover, unlike the increasing majority of states, New York has a second tier-a state review offer-before a case moves to the judicial level. For the sake of simplicity, each answer below under the subheading "court" subsumes both the review officer and judicial levels.

The Question: Professional Perspectives

Based on the information recounted above, three members of the profession (professor Breeda McGrath, department chair of international psychology at the Chicago School of Professional Psychology, Online Campus; John Hite, school psychologist specialist who works with preschool children in Maine and cochair of the NASP credentialing committee; and Georgia Belk, doctoral student in the school psychology program at Lehigh University) provided their responses to the following series of questions. Immediately after their answers for each subpart of the first question is a summary of the relevant ruling in the court's decision for this case (D.N. v. New York City Department of Education, 2015). Immediately after their answers for the second and third questions are syntheses of various other cases from the same jurisdiction.

Question 1. Respond to the parent's arguments in relation to each of their claims relating to the appropriateness of the proposed IEP:

(a)The district merely went through the motions of addressing her input, causing her not to attempt to add anything at the end of the meeting because it was obvious that the district representatives had made up their minds to move G. out of this expensive private placement.

McGrath: This claim is not likely to be successful. The parent should have voiced her perception about her exclusion from both the decision-making and placement processes at the IEP meeting, which is the critical hub of these processes. It appears that the district did make efforts to provide the parent with the opportunity to comment.

McGrath: This claim is not likely to be successful. The parent should have voiced her perception about her exclusion from both the decision-making and placement processes at the IEP meeting, which is the critical hub of these processes. It appears that the district did make efforts to provide the parent with the opportunity to comment.

Hite: This claim is not a sure winner or loser. According to the school psychologist, the parent declined to provide additional input, but I would not take such a definitive stance. It is difficult to know how comfortable or empowered parents might feel contributing to such a discussion. Additionally, the information here is too limited for me to speculate to what extent the team solicited and considered the parent's input. Moreover, I would defer to legal counsel to ascertain the standard for meaningful parental participation based on the applicable precedents.Belk: The parent's perception that the district had predetermined G.'s placement is not likely to meet the test of preponderant evidence. Based on the school psychologist's testimony, it appears that the parent had sufficient opportunity to participate in the development of G.'s IEP. By voluntarily declining to add anything to her son's IEP, the mother relinquished the opportunity for further input. In any event, the IEP seems to be reasonably calculated to address the needs of G. in a less restrictive environment.Court: In D.N. v. New York City Department of Education (2015), the state review officer and, upon appeal and with due deference, the federal district court rejected the parent's claim, largely relying on the school psychologist's testimony that the parent had a meaningful opportunity to participate in the IEP process. Indeed, although the court did not reach this nuance, for denial of FAPE on procedural grounds, the IDEA (2013) requires proof that the district "significantly" impeded the parental opportunity for participation (§ 1415[f][E][ii][II]).

(b) The BIP lacked the required basis in an FBA.

McGrath: This claim is likely to succeed. The FBA is a nonnegotiable and essential component of the assessment and placement decision, especially given that the school psychologist who assessed G. had not previously worked with or evaluated the child. Although additional questions come to mind about how detailed the BIP was, developing it on the basis of an old FBA or no FBA makes unwarranted assumptions about the student's needs and does not allow for change and growth.

Hite: I concur. New York State regulations very clearly specify that an FBA is required. Best practice would also support conducting an FBA to develop an appropriate BIP. Children with significant developmental disabilities who show highly challenging behaviors benefit from ongoing behavioral assessment. I don't see how the team could have met the reasonably calculated standard for appropriateness without conducting an ongoing, let alone a single, assessment, to get baseline data.

Belk: I too regard this concern as cogent; it seems to be the egregious procedural flaw in this case. While the proposed IEP addressed G.'s behaviors by providing specialized services and a paraprofessional for crisis management, the lack of an FBA would seem to invalidate the BIP as being based solely on anecdotal data. The New York regulations incorporate this professional norm into legal requirements.

Court: Based on considerable and consistent case law in the Second Circuit (e.g., M.W. v. New York City Department of Education, 2013; R.E. v. New York City Department of Education, 2012) that the absence of an FBA is not fatal where the IEP addresses the behavioral needs of the individual child, the review officer and the court in D.N. v. New York City Department of Education (2015) rejected this parental claim. The school psychologist's testimony, along with the specific provisions in the proposed IEP, provided the proof that this procedural error was, in effect, harmless to the student in light of the applicable case law.

(c) Given the child's consistent record at the Rebecca School of a 8:1:3 ratio, the proposed 6:1:1 ratio, even with the addition of another aide, was not a sufficient level of support to meet the IDEA's substantive standard of appropriateness.

McGrath: The cogency of this claim depends on more specific information. For example, what is the combination of needs among the six children, and what is the level of skill of the teacher and assistant? It is possible that with the proposed additional support services, the district's IEP may meet G.'s needs. However, critical questions remain about whether and how they would be delivered in the classroom.

Hite: My concern is much more with expertise and credentials of the staff than the ratio of adults to children. The ratio would effectively be the same at both schools with the addition of the paraprofessional. However, the school's proposal for a paraprofessional to deal with crisis management seems clearly inappropriate given (a) the lack of information from an FBA, (b) the ostensibly intense behaviors in a child with such highly complex developmental needs, and (c) lack of specifications of the type of supervision the paraprofessional would receive.

Belk: This substantive claim is a close call that could go in either direction. On the one side, the staffing ratios are arguably equivalent, and the proposed placement may constitute a less restrictive environment for G. Yet, these factors are more akin to contentions than conclusions. On the other side, the undisputed evidence of G.'s progress at the specialized private school, with his particular configuration of services, would seem to suggest that the efficacy of the proposed move for G. is merely speculative.

Court: Again relying primarily on the school psychologist's testimony, the review officer and, in turn, the court in this case ruled that the district's proposed staffing ratio for G. met the substantive standard of reasonable calculation for educational benefit.

Question 2. Assume an additional fact in relation to question 1a-that the school psychologist testified that she did not recall the specific details of the meeting, but her opinion was that the parents had a meaningful opportunity for participation in the IEP process based on (a) her regular course of business, and/or (b) the minutes of the meeting.

McGrath: Although one wonders whether the school psychologist actually cannot recall the specific details of the meeting or, instead, whether this lapse is a specific reaction to the nature of the hearing or other undisclosed issues, examining the minutes is appropriate. The key question is whether they are a full and accurate account of the IEP meeting.

Hite: Based on the limited information in this case, it seems that it would be best to review the minutes for a more detailed perspective for the entire meeting. Additionally, the school psychologist and/or others may have taken notes that could potentially also be useful to assess the specific course and contents of the meeting. In any event, this situation illustrates the breakdown or lack of effective communication between key school staff and the parents, underscoring the importance of school psychologists working to foster effective family-school partnerships.

Belk: The lack of specific recollection is not likely to be fatal here. First, the school psychologist would merit recognition as an IEP team member with specialized expertise and experience. Second, it is understandable that such long and drawn out cases can lead to the loss of important details, especially for professionals who attend many such meetings amid various other responsibilities. Finally, it appears that the minutes of the meeting provide the requisite corroboration.

Court: Here, the case law supports an "it depends" answer. For the school psychologist's regular course of business, the key contributing factors are her particular credibility and the extent of her relevant experience. For the minutes, the major contributing factor is whether the district provided a foundation to show that the document was a persuasive representation of the interactions at the IEP meeting. The outcome also varies depending on other circumstances, such as whether the reliance was on both of the aforementioned factors and whether the hearing officer made a careful factual finding. For example, ruling in K.R. v. New York City Department of Education (2015) that the district denied FAPE based on the requisite lack of parental participation, the federal district court relied on the hearing officer's credibility determination (because the subsequent levels of review did not have the benefit of directly observing the witnesses) that the parent's testimony was clear and cogent, whereas the school psychologist's demeanor and lack of specific recollection was relatively unpersuasive. Similarly, the court concluded that the minutes were not of significant import in this case because "there was no testimony regarding the minutes from any witness, and thus no basis to determine whether the minutes were an accurate representation of what occurred at the meeting, whether the minutes were contemporaneously taken, or indeed, who wrote the minutes." In contrast, in J.S. v. New York City Department of Education (2015), the federal district court relied on the hearing officer's finding persuasive the school psychologist's testimony about his regular practice at IEP meetings; however, the hearing record provided corroboration in the duly admitted minutes of the meeting and the testimony of another district team member as to standard local procedure at IEP meetings.

Question 3. Hypothetically, if the court ultimately ruled that the district's proposed placement was not appropriate, would the following testimony of the school psychologist defeat the reimbursement claim in terms of the appropriateness of the parent's unilateral placement: (a) the teachers at the Rebecca School are not certified in special education or at least in the specialized methodology that the school has adopted; (b) the private school does not meet the IDEA's mandate for the least restrictive environment (LRE); and (c) the staffing ratio does not include a paraprofessional specifically designated for crisis management.

McGrath: The first two parts of this testimony would likely defeat the private placement. Uncertified teachers would be a significant issue for the placement decision, because there would be no reasonable assurance that they could deliver FAPE and address needs that might arise. LRE is specific to the student, and the private school would appear to be too restrictive for the child. However, a crisis management paraprofessional is not as essential as the combined skills of the school staff to meet G.'s specific needs and manage his behaviors.

Hite: The first two arguments are likely to be successful for the district. Although teachers at private schools do not necessarily have to be certified, the district could rightfully argue, as a basis for comparison, that not only are its teachers and specialists appropriately credentialed but also-hopefully-their specially designed instruction is based on research and implemented with fidelity. Similarly, for the sake of a baseline comparison, the district could make an argument that the public school would provide LRE, providing a range of inclusive opportunities with a variety of peers that the student could access. However, arguing that the presence of a paraprofessional would be effective would not be a cogent comparison in the absence of specific data from an FBA, particular evidence of appropriate training, and the expertise and responsibilities of their supervisor.

Belk: Yes, on balance these arguments are likely to prevail. Although unilateral placements do not need to meet IDEA standards with regard to highly qualified special education teachers, the more restrictive nature of this particular school and its absence of a crisis management support for G. would seem to show that-on a comparative basis-the public placement is more appropriate.

Court: Not likely. The Supreme Court made clear that the procedural requirements of the IDEA, such as special education certification and even the use of IEPs, do not apply to the appropriateness of unilateral placements in tuition reimbursement cases (Florence County School District Four, 1993). This conclusion extends to certification in a particular methodology (e.g., D.C. v. New York City Department of Education, 2013). Moreover, in this case the child's placement on the LRE continuum is not dramatically different from the proposed public placement in terms of interaction with nondisabled students, and, in any event, LRE is not the controlling consideration for unilateral placements (e.g., C.L. v. Scarsdale Union Free School District, 2014). Instead, the prevailing standard is the Rowley substantive criterion-whether the school's services were reasonably calculated to yield educational benefit in relation the individual needs of the child (e.g., D.C. v. New York City Department of Education, 2013). Although the evidence must be sufficiently specific and direct (e.g., Hardison v. Board of Education, 2014), the odds are that the parent can meet this relatively relaxed substantive standard (e.g., K.R. v. New York City Department of Education, 2015).


Tuition reimbursement is a high stakes issue that adds to the calculated risk of attorneys' fees, which may be shifted to the district when the parent prevails and may also be shifted to the district in the much lesser likelihood of a court's finding of frivolous or harassing litigation. These particular cases up the already considerable emotional and economic ante of IDEA litigation due to the outstanding bill for the costs of the private placement and interrelated expenses, such as transportation. For example, the reported cost of tuition alone at the Rebecca School for the 2010-2011 school year was $92,100 (B.R. v. New York City Department of Education, 2012).

For such a high-stakes issue, which starts with the key question of whether the district's proposed IEP is appropriate, judgments vary depending on many factors, including the perspective typically taken by someone in a particular role and factors idiosyncratic to the individual. As with the previous three articles of this series, this one reveals diversity of judgments among the role representatives in school psychology and, even more so, between their perspective and that of the judiciary.

Among the role representatives, a source of variation was the applicable degree of certitude. Some appeared to suspend judgment pending much more information, suggesting the norms of scientific standards, such as .05 or .01 probability and careful controls for causation. Other answers seemed to suggest a level more akin to the preponderant proof standard for civil courts, which is often based on less than an optimal level of information and which amounts to a more probable than not decision.

In this case, however, the most marked difference was between the shared professional perspective and the courts with regard to the FBA/BIP and unilateral private placement issues. For the FBA/BIP issue, the professional perspective followed research-based best practice, whereas the judicial perspective prescribed the legally required minimum. Following the professional norm is entirely appropriate as a prophylactic practice, just as long as it is not confused with (or contradicted by) the case law. For special education generally (e.g., Zirkel, 2014c) and for intersecting issues specific to school psychologists' expertise, such as FBAs/BIPs (Zirkel, 2011), it is not uncommon for both professors and new or experienced practitioners to confuse legal requirements, per judicial interpretations, with professional norms, per research-based best practices.

For the private placement issue, the three respondents seemed to follow their professional inclination for the staff certification and LRE standards, which is contrary to a well-established line of case law. Although such placements, unlike FBAs and BIPs, are beyond the control or responsibility of district school psychologists, legal literacy about such costly issues is important for prudent policy making and practice at the IEP team level. This continuing series is designed to stimulate increased awareness of legal issues that intersect with the profession of school psychology.


B.R. v. New York City Dep't of Educ., 910 F. Supp. 2d 670 (S.D.N.Y. 2012).

C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir. 2014).

D.C. v. New York City Dep't of Educ., 950 F. Supp. 2d 494 (S.D.N.Y. 2013).

D.N. v. New York City Dep't of Educ., 65 IDELR ¶ 34 (S.D.N.Y. 2015).

Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

Hardison v. Bd. of Educ., 773 F.3d 372 (2d Cir. 2014).

Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400.1 et seq. (2013).

J.S. v. New York City Dep't of Educ., __ F. Supp. 3d __ (S.D.N.Y. 2015).

K.R. v. New York City Dep't of Educ., __ F. Supp. 3d __ (S.D.N.Y. 2015).

M.W. v. New York City Dep't of Educ., 725 F.3d 131 (2d Cir. 2013).

R.E. v. New York City Dep't of Educ., 694 F.3d 167 (2d Cir. 2012), cert. denied, 133 S. Ct. 2802 (2013).

Zirkel, P. (2011). IDEA requirements for FBAs and BIPs: A quick quiz. Communiqué, 40(1), 8-9.

Zirkel, P. A. (2012). Tuition and related reimbursement under the IDEA: A decisional checklist. West's Education Law Reporter, 282, 785-794.

Zirkel, P. A. (2014a). "Appropriate" school psychology practice? You be the judge I. Communiqué, 43(1), 4-6.

Zirkel, P. A. (2014b). "Appropriate" school psychology practice? You be the judge II. Communiqué, 43(3), 16-20.

Zirkel, P. A. (2014c). The law in the special education literature: A brief legal critique. Behavioral Disorders,39, 102-107

Zirkel, P. A. (2015). "Appropriate" school psychology practice? You be the judge III. Communiqué, 43(8), 10-13.

Taylor Hicks-Hoste is a fifth year school psychology doctoral student at Michigan State University