STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-004
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
The Harel Law Firm, PC, attorneys for petitioner, by Galiah Harel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Gail M. Eckstein, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her daughter's tuition at the Big N Little: TOL/OYYL Program (TOL/OYYL) for the 2023-24 school year. The appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The student began receiving special education services at a nonpublic preschool program at the end of the 2020-21 school year and received special education teacher support (SEIT) and related services in preschool during the 2021-22 school year (Parent Ex. B at p. 1). A CSE convened on June 21, 2022 for an initial meeting, determined that the student was eligible for special education as a student with a speech or language impairment, and developed an individualized education services program (IESP) for the student (see id. at pp. 1-13).[1] For the 2022-23 school year (kindergarten), the CSE recommended that the student receive eight periods per week of direct group special education teacher support services (SETSS), with two 30-minute sessions per week of group counseling, one 30-minute session per week of group speech-language therapy, one 30-minute session per week of individual speech-language therapy, two 30-minute sessions per week of group occupational therapy (OT), and two 30-minute sessions per week of group physical therapy (PT) (id. at pp. 1, 10).[2] The student attended a nonpublic school during the 2022-23 school year (see Parent Ex. I at p. 1).
On August 28, 2023, the parent entered into a contract with TOL/OYYL for the student's attendance during the 2023-24 school year (first grade) (Parent Ex. D at pp. 1-2).[3] The student began attending TOL/OYYL in September 2023 for the 2023-24 school year (Parent Ex. G).
In a letter to the district, dated October 20, 2023, the parent, through her attorney, requested that the district reevaluate the student, reconvene an CSE to create an IEP, and recommend a full-time special education classroom for the 2023-24 school year (Parent Ex. J at p. 2).[4] The parent noted that if the district did not timely address these issues, she would unilaterally place the student "in a private special education program" and seek reimbursement/funding from the district (id.).
In a letter to the district, dated December 25, 2023, the parent, through her attorney, noted that she had sent a letter in October 2023 requesting that the district conduct a reevaluation, reconvene a CSE, and recommend a full time special education classroom placement (Parent Ex. K at p. 2).[5] The parent advised that she was still requesting "a full-time special education classroom for the 2023-2024 school year" but that, to date, the district had not evaluated the student, developed an IEP, or recommended any placement (id.). The parent stated that, until the issue was resolved, she would unilaterally enroll the student at TOL/OYYL for the 2023-24 school year and seek reimbursement/funding from the district (id.).
A CSE convened on March 12, 2024, continued to find the student eligible for special education as a student with a speech or language impairment, and developed an IEP with a projected implementation date of March 28, 2024 (see Parent Ex. C). According to the IEP, the CSE discussed the parent's request for a "self-contained special education class" but determined that the student did not require "such intensive support" (id. at p. 4). The CSE recommended that the student receive the following related services to be provided in English: two 30-minute sessions per week of group counseling services per week, two 30-minute sessions per week of group OT, two 30-minute sessions per week of group PT, one 30-minute session per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, and daily, full-time, individual paraprofessional services for behavior support (id. at p. 17). The CSE recommended that the student's IEP be implemented in a district non-specialized school (id. at p. 21).
A. Due Process Complaint Notice
In a due process complaint notice dated June 18, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A). The parent alleged that the last program the district developed for the student prior to the start of the 2023-24 school year was the June 2022 IESP, which the district failed to implement, and subsequently, the CSE developed an IEP in March 2024 (id. at p. 1, 2-3). The parent contended that the IESP and IEP were inadequate and improper for the student, arguing that the student required a full-time special education classroom of up to 12 students with a behavior plan (id. at p. 2). The parent asserted that she requested that the district reevaluate the student, reconvene a CSE, and recommend a full-time special education program in October 2023 and again in December 2023 (id.). The parent contended that the district's failure to address her request caused her to unilaterally enroll the student at TOL/OYYL for the 2023-24 school year because the district failed to create a timely and appropriate program for the 2023-24 school year (id.). As relief, the parent requested direct funding for the costs of the student attendance at TOL/OYYL for the 2023-24 school year (id. at p. 3).
B. Impartial Hearing Officer Decision
An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on July 25, 2024 and concluded on October 30, 2024 after four days of proceedings (see Tr. pp. 1-210; Oct. 30, 2024 Tr. pp. 1-43).[6] In a decision dated November 20, 2024, the IHO found that the district failed to offer the student a FAPE for the 2023-24 school year but dismissed the parent's complaint, holding that the parent failed to meet her burden to prove that the unilateral placement was appropriate (IHO Decision at p. 2).[7]
Regarding the appropriateness of the unilateral placement, the IHO held that the only basis for the view that the student required a 12:1+1 special class recommendation was the psychoeducational evaluation conducted by the private school, which the IHO found to be "self-serving" (IHO Decision at p. 8). The IHO also found that the testimony of the school supervisor was "largely evasive" pointing to the answers pertaining to questions about the staff at the private school (id. at pp. 8-9). The IHO noted that the supervisor did not "appear to be low-level employee" of the school as she was involved in oversight of the student's curriculum and testified that she collaborated with the student's providers and the school staff (id. at p. 9). The IHO determined that it was "disingenuous that [the] Supervisor was not immediately aware who the Principal of the school was or that the School Psychologist was an employee of the" school (id.). The IHO also noted that the supervisor testified that the student received all of his related services, but the March 2024 IEP contradicted this testimony (id.). The IHO noted that the IEP contradicted other testimony from the supervisor as well (id.). Based on these findings, the IHO held that the parent's evidence and witness testimony lacked credibility (id.). Having found that the parent failed to meet her burden, the IHO found that it was unnecessary to address equitable considerations, but did note that equities would not fully favor the parent and would have resulted in a bar or reduction in the amount of tuition awarded (id. at pp. 9-10).
IV. Appeal for State-Level Review
The parent appeals. The parent asserts that the IHO erred in finding that she failed to meet her burden as the student's unilateral placement was appropriate for the 2023-24 school year. The parent contends that the evidence and testimony described the student's challenges and needs, how the program was created to address the student's specific needs, and how it enabled him to make progress. The parent argues that it was not her burden to prove that the class ratio was appropriate, so long as the evidence demonstrated that the unilateral placement was reasonably calculated to enable the student to make progress. The parent asserts that she met this burden, and the district failed to show that the programs it created were appropriate.
Additionally, the parent contends that the IHO erred in finding the supervisor's testimony was evasive. According to the parent, the supervisor testified in detail showing that she was familiar with the student and the program, testified credibly, and described an appropriate program. Moreover, the parent argues that the IHO should not have used the March 2024 IEP to find the unilateral placement inappropriate as the district failed to present any evidence regarding the information contained in the IEP and the parent was not able to cross-examine any members of the CSE. The parent asserts that the information in the IEP cannot be relied upon.
Lastly, the parent asserts that the IHO erred in finding that equitable considerations would not have fully favored the parent. The parent argues that she cooperated with the CSE in the development of the IEP and that, in the absence of evidence to the contrary, equitable considerations should favor her claim for tuition funding. The parent asserts that she did nothing to interfere with the CSE and sent notices to the district, to which the district did not timely respond. The parent argues that there are no equitable factors to preclude an award of funding.
In an answer, the district responds to the parent's appeal and argues that the IHO properly found that the TOL/OYYL was not an appropriate placement for the 2023-24 school year and that equitable considerations do not favor the parent's request for district funding of the student's tuition. The district argues that the parent signed the contract for TOL/OYYL on August 28, 2023, but did not send a letter to the district until October 2023, which demonstrates that the parent was not interested in working with the district. The district contends that the lack of timely notice shows a lack of cooperation, and that the IHO should have found that all tuition recovery was barred.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982])
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion—Unilateral Placement
Here, neither party has appealed from the IHO's finding that district failed to offer the student a FAPE (IHO Decision at pp. 2, 6-7). Accordingly, this finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
Turning to the unilateral placement, a private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id.. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
A. The Student's Needs
With respect to the student's needs, at the time of the June 2022 CSE meeting, the student was in preschool and receiving SEIT, speech-language therapy, OT, PT, and counseling services (Parent Ex. B at p. 1). According to the June 2022 IESP, the student's "program be[gan] with Hebrew," therefore, he knew "a few Hebrew letters and their concomitant sounds" but did not know any English letters (id. at p. 2). His teacher shared that the student was "very impulsive," "below average" compared to his peers, and demonstrated "academic delays because of [his] behavioral needs" (id. at p. 1). The student's SEIT provider reported at the June 2022 IESP meeting that the student required assistance "to follow classroom rules" and "calm down," as well as had difficulty "express[ing] himself" (id. at p. 2). According to the June 2022 IESP, the SEIT provider shared that she attempted "to work on cognitive skills, but [the student] ha[d] not responded to many things because of [his] behavior" (id.).
The June 2022 IESP indicated that, according to his teacher, the student exhibited difficulty "cop[ing] . . . with unexpected changes" and "struggle[d] because of his impulsivity" (Parent Ex. B at p. 2). While the June 2022 IESP noted that the student enjoyed time with his peers, it also indicated that he "struggle[d] with being safe around [them]," became easily overexcited, and sometimes "hurt[] [a] peer's feelings" without realizing it (id. at pp. 2-3). According to the June 2022 IESP, the student "need[ed] supervision" during "dramatic play" and assistance with turn-taking (id. at p. 3). The June 2022 IESP indicated that the student's SEIT provider "show[ed] him picture books to help teach him appropriate behavior" (id.).
The June 2022 IESP included a classroom observation which indicated the student "articulat[ed] [his] needs, wants[,] and ideas" and completed a classroom activity "independently" (Parent Ex. B at p. 3). According to the classroom observation, the student "benefited from work with adults [one-on-one] . . . to maintain his focus, resolve a minor peer conflict[] and . . . attend to the learning in the classroom" (id.). The June 2022 IESP indicated that "the team encouraged [the] parent to share information with [the student's] pediatrician to rule out possible diagnosis of ADHD" based on "the reports of his impulsivity" (id.).
In terms of physical development, the June 2022 IESP included that the student's teacher was "not very concerned" about the student's "gross motor skills" and that the student was able to independently engage in toileting and dressing (Parent Ex. B at p. 4). The student's SEIT provider indicated that the student "struggle[d] with following rules because he [was] sensory[-]seeking" and demonstrated "oral-sensory needs" (id.). The June 2022 IESP included that the "[p]arent reported [the student] would benefit from PT to improve body awareness" and "OT to improve sensory stimulation, frustration tolerance, and the development of his writing skills" (id.).
The June 2022 IESP included a variety of supports to address the student's management needs such as preferential seating, repetition of simplified directions, visual cues, use of multisensory techniques to present information, auditory and visual prompts, scaffolded lessons, movement breaks, and positive reinforcement (Parent Ex. B at p. 4).
Subsequent to the June 2022 IESP, there is no indication that the district convened a CSE or conducted any updated evaluations of the student prior to the beginning of the 2023-24 school year.
Turning to how TOL/OYYL identified the student's needs, a TOL/OYYL psychoeducational evaluation of the student was completed on August 30, 2023 "to better define [the student's] educational and therapeutic needs" (Parent Ex. I at p. 1).[8] According to the August 2023 psychoeducational evaluation, the student had received a diagnosis of attention deficit hyperactivity disorder (ADHD) at age four and began receiving special education services (id.). The August 2023 psychoeducational evaluation indicated that, in the classroom, the student demonstrated "challenges in communication, characterized by unclear speech and limited articulation" (id. at p. 3). The August 2023 psychoeducational evaluation also indicated that the student "fail[ed] to identify basic items or people and d[id] not recognize items based on their function," he "demonstrate[d] a lack of awareness of nonverbal cues," did "not effectively communicate his needs and d[id] not respond to WH questions or greetings" (id.). Additionally, the student struggled to comply with one-step directive and did not seek help when confused (id.). Further, the report indicated that the student did not "initiate play with peers," lacked functional play skills, and "engage[d] in rough and sensory play" (id. at pp. 3-4). The August 2023 psychoeducational evaluation described that the student was "overstimulated in crowded environments," did not follow instructions, and exhibited "tantrum behaviors" (id. at p. 4).
According to the August 2023 psychoeducational evaluation, the student demonstrated average cognitive skills, with a relative strength in visual spatial skills and a relative weakness in processing speed (Parent Ex. I at p. 4). The August 2023 psychoeducational evaluation indicated that results of the student's achievement testing fell in the "low" to "extremely low" range on all skills assessed (id. at pp. 2-3, 6). Specifically, the August 2023 psychoeducational evaluation included that the student had difficulty with such skills as identifying letters, matching pictures to words, writing, and adding and subtracting (id. at p. 6). The August 2023 psychoeducational evaluation also included results of the Vineland-3 using parent input which found that the student's adaptive behavior composite was "in the [m]oderately [l]ow range" (id.).[9]
The August 2023 psychoeducational evaluation indicated that the student would "benefit from a special education program in a 12:1:2 setting" that addressed "his academic, and social and play skills" (Parent Ex. I at p. 8). The August 2023 psychoeducational evaluation also recommended individual and group counseling to address the student's social skills and OT "due to his compromised visuo-motor coordination and spatial awareness" (id.). According to the August 2023 psychoeducational evaluation, the evaluator recommended the student "receive the same amount and frequency of therapy in the summer as during the academic school year" (id.).
The IHO viewed the psychoeducational evaluation as "self-serving" in its recommendations and therefore did not accord the evaluation weight (see IHO Decision at p. 8); however, the district did not offer evidence of a different view of the student's needs current to the period of time when the parent made her decision to unilaterally place the student at TOL/OYYL. It was not the parent's responsibility to evaluate the student and identify his needs (see A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]). Rather, as summarized above, the June 2022 IESP included information from a social history, a classroom observation, and teacher reports, but did not reference formal testing (see Parent Ex. B at pp. 1-3), the student's needs summarized in the June 2022 IESP were not inconsistent with the testing conducting by the private psychologist (compare Parent Ex. B at pp. 1-3, with Parent Ex. I), and the district did not evaluate the student or convene the CSE leading up to the 2023-24 school year and did not conduct evaluations pursuant to the parent's requests until approximately January 2024, after which it convened the CSE in March 2024 (see Parent Ex. C at p. 3). Accordingly, to the extent the district's later developed IEP could be viewed as describing the student's needs in a manner that contradicted the information gathered by the private school, it would not be sufficient to invalidate the appropriateness of the unilateral placement.[10]
TOL/OYYL also conducted an FBA to determine his behavior needs (Parent Ex. H at pp. 2-7). The FBA, initially developed on August 29, 2023 and updated quarterly, identified the student's targeted problem behaviors and developed statements of functional hypotheses, including that the student "fidget[ed]," was "rigid," engaged in "purposeful disturbances," was "self-direct[ed]," demonstrated "verbal/physical aggression," and said "untrue statements" (id. at pp. 2-3, 5). The August 2023 FBA cited regulations regarding the conduct of FBAs and outlined the data sources, antecedents, consequences, functions of the behaviors, skill deficits related to the problem behaviors, previous supports tried, reinforcers, and replacement behaviors, as well as the data collected about the targeted behaviors (id. at pp. 2-7).
B. TOL/OYYL Program
Turning to the unilateral placement, evidence in the hearing record includes the testimony of the supervisor of the TOL/OYYL program, a program description, a class schedule, a BIP, a treatment plan, and a teacher progress report and progress reports for the student's related services (see Parent Exs. D; F; H at pp. 9-14, 22-43; L ¶ 3).
Initially, however, the IHO discounted the testimony of the supervisor as not credible (see IHO Decision at pp. 8-9). Generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076). Here, the IHO indicated that supervisor was "largely evasive" in her testimony, noting examples relating to the supervisor's difficulty identifying the roles of staff from TOL/OYYL (IHO Decision at pp. 8-9). The IHO was in the best position to assess aspects of the witness's demeanor, such as her evasiveness, and I do not find basis in the hearing record to disturb the IHO's credibility finding.
Thus, putting aside the testimony of the supervisor, I will examine the documentary evidence presented. According to the program description, the TOL/OYYL program provided "special education techniques in a comprehensive day school program" to address the needs of students "with learning disabilities, behavioral issues[,] and attention deficit disorders" in a "self-contained environment" where students were provided with "[a] modified general education curriculum" (Parent Ex. D at p. 4). The program description included information about the program's religious studies and general studies (id. at pp. 5-7). Specifically, the program description indicated that TOL/OYYL's secular instruction addressed reading, writing, math, science, social studies, physical education, sports, and music (id.). The hearing record also included a "curriculum outline" for the student's first grade year that identified the specific English language arts (ELA) and math skills to be taught (id. at pp. 8-10). Additionally, the program description indicated that TOL/OYYL provided instructional techniques such as direct teaching, multisensory opportunities, sequential instruction, an environment with minimized distractions, and a "[l]ow student-teacher ratio" (id. at pp. 4-5).
The 2023-24 class schedule indicated that that the student had periods of Hebrew, ELA, math, science, and social studies instruction, along with opportunities for physical activity and social interaction (Parent Ex. F).
The student's TOL/OYYL treatment plan, initially developed on September 12, 2023 and updated quarterly, described the student's deficits in the areas of communication, socialization, maladaptive behaviors, cognitive and academic skills, and attention (Parent Ex. H at pp. 13-14). Review of the treatment plan shows that it included annual goals to improve the student's math and ELA skills, progress toward his communication and social skills goals as of June 2024, and descriptions of continued areas of concern (id. at pp. 14-17).
TOL/OYYL prepared a BIP on September 5, 2023 and indicated it was updated quarterly (Parent Ex. H at pp. 9-12). The BIP described the student's target behaviors, prevention strategies, the instructional plan for alternate behaviors, and included strategies to address the student's behaviors such as positive reinforcement, sensory toys, breaks, coping skills, prompts, graphic organizers, scaffolding, redirection, and social stories (id.). According to the BIP, when the student "beg[an] to master his goals and show improvement, he w[ould] be transitioned to a less restrictive setting and have a decrease in services" (id. at p. 12).
Turning to the student's progress, the treatment plan indicated that the student demonstrated "improvement" in "communication skills and social skills" (Parent Ex. H at p. 15).[11] According to the treatment plan, the student "learned flexibility," "improved in his ability to remain calm," and "gained skills in his math and ELA abilities" (id. at p. 15). In communication and socialization, the treatment plan included "objective[s]" that showed progress between September 2023 and June 2024 (id. at pp. 15-17).
The May 2024 teacher progress report indicated that the student improved his counting ability and "his number recognition," and that he made progress in understanding size and weight (Parent Ex. H at p. 22). In reading, the teacher progress report included that the student "improved in his reading fluency" and decoding skills and showed better retention of story details (id. at p. 23). The May 2024 teacher progress report indicated that the student was able to "recognize and label all upper[-] and lower-case letters" and "read three basic sight words" (id. at p. 23). The teacher progress report indicated that the student demonstrated improvement in writing letters and basic words, and "significant progress in his ability to brainstorm ideas" (id. at p. 24). The progress report included academic skill goals for the student to work on over the upcoming three months (id. at pp. 22-25).
Regarding social/emotional skills, according to the teacher progress report, the student "started to talk more respectfully to his teachers and peers" (Parent Ex. H at p. 25). The BIP reflected that the frequency of the student's behaviors reduced between September 2023 and June 2024 (id. at pp. 9-10).
The hearing record includes November 2023 and May 2024 progress reports for the student's speech-language therapy, counseling, and PT (Parent Ex. H at pp. 26-43). These progress reports included ratings for various skills but no narrative information from the providers (id. at pp. 26-43). Between November 2023 and May 2024, the student's therapists indicated progress was observed on some of the assessed skills (id. at pp. 26-43). For example, the student's ratings moved from "sometimes" to "never" "speaks with a stutter;" moved from "10 [percent]" to "25 [percent]" of the time "ask[s] for help;" and moved from a "no" for "stand using hands and feet" to a "yes" for "stand using hands and feet" (id. at pp. 26-43).
The foregoing documentary evidence on its own would tend to demonstrate that TOL/OYYL provided the student with specially designed instruction for the 2023-24 school year. However, in finding the evidence unconvincing, the IHO relied on statements in the March 2024 IEP (see IHO Decision at pp. 8-9). Although the parent argues that the IHO should not have relied on the March 2024 IEP to examine the appropriateness of the unilateral placement, the parent entered the document into evidence, which sets forth information about the unilateral placement shared during the CSE meeting (see Parent Ex. C at pp. 3-5).[12] In addition, although the parent challenged the recommendation in the March 2024 IEP in her due process complaint notice, she did not allege that any statements in the IEP regarding the unilateral placement were inaccurate (see Parent Ex. A). Finally, as noted above, although new information about the student's needs obtained after the parent's decision to unilaterally place the student might not weigh in an analysis regarding the private school, information about what instruction or services the student did or did not receive at the unilateral placement during the school year at issue is relevant to the analysis (see Khanimova, 2025 WL 722876, at *6 [noting that it was appropriate to consider that a unilateral placement did not "provide a substantial portion of the related services" that the student needed as planned in finding the unilateral placement inappropriate]).
According to the March 2024 IEP, during a November 2023 classroom observation, one of the student's teachers shared that the student's classroom had six students and that they were "not currently using any particular curriculum" but "us[ed] books . . . to teach math concepts" (Parent Ex. C at p. 3). The March 2024 IEP stated that the student had shared with the evaluator "that he ha[d] not learned the English language ABCs or sight words" (id.). Further, the March 2024 IEP indicated that, during the classroom observation, the student's teacher shared that "[f]or English, [she] purchase[d] books to read to the class and . . . connections" were made "to their Judaic studies" (id.).[13] The March 2024 IEP also included a statement from "the school principal" that TOL/OYYL's "'curriculum was instituted recently'" (id. at p. 4). In response to a request from the CSE for information from the school about their curriculum, the March 2024 IEP indicated that TOL/OYYL "only supplied a list of books" (id.). The March 2024 IEP indicated that the student "ha[d] not had adequate instruction in secular studies in his current or previous private religious school" (id.). Although the supervisor testified that the information about TOL/OYYL's curriculum included in the March 2024 IEP was "incorrect" and that the teacher referenced in the March 2024 IEP was not the student's "direct instructor or provider" (Tr. pp. 107, 108, 110, 122; see Parent Ex. C at p. 3), as noted above, the IHO discounted testimony of the supervisor as not credible.
As for related services provided at TOL/OYYL, according to the March 2024 IEP, the student had "received his IESP mandated speech therapy and SETSS," although no progress reports were shared with the CSE "despite multiple requests" (Parent Ex. C at p. 3). The March 2024 IEP indicated that the student "ha[d] not received his mandated counseling services," nor had he received either PT or OT as recommended in his previous IESP (id. at p. 5). During the hearing, the parent and supervisor testified that the student had an individual paraprofessional and received related services at school including OT, PT, counseling, and speech-language therapy (Tr. p. 82; Oct. 30, 2024 Tr. p. 12). Once again, however, although the supervisor disputed the statements in the March 2024 IEP (see Tr. pp. 139-41, 144-46, 149-50, 179, 181, 183, 202-03; Parent Ex. C at pp. 5-6), the IHO did not find the supervisor credible. Moreover, while the supervisor referred to "entries and signatures and verifications with session notes" to support her belief that the student received related services (Tr. pp. 181, 183), no such sessions notes were entered into evidence.
The IHO weighed the evidence in the hearing record, found that the IEP contradicted evidence presented regarding the curriculum purportedly used in the TOL/OYYL program and the related services delivered to the student, and, in light of the contradictions, found that the parent did not establish the appropriateness of the unilateral placement (see IHO Decision at p. 9). Based on the foregoing, although my reasoning may have differed in certain respects, given the deference owed to the IHO's credibility finding and the contradictory evidence in the hearing record regarding the instruction and services provided to the student at TOL/OYYL, I find insufficient basis in the hearing record to disturb the IHO's determination that the parent failed to meet her burden to prove that the unilateral placement was appropriate.
VII. Conclusion
Having found insufficient basis in the hearing record to disturb the IHO's finding that the parent failed to demonstrate that the unilateral placement of the student at TOL/OYYL was appropriate for the student for the 2023-24 school year, the necessary inquiry is at an end and there is no need to reach the issue of whether equitable considerations support an award of tuition reimbursement (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).
THE APPEAL IS DISMISSED.
Footnotes
[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[2] All of the student's services were recommended to be provided in English (Parent Ex. B at p. 10).
[3] TOL/OYYL has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[4] The letter bore the typed name of the parent in place of a written signature and referenced the parent's attorney as being authorized to proceed on the parent's behalf (Parent Ex. J at p. 2). The letter in evidence is accompanied by a facsimile cover sheet (id. at p. 1). The cover sheet described the letter as a "Request for Evaluation" for the 2023-24 school year (id.).
[5] The December 2023 letter was titled "TEN DAY NOTICE" (Parent Ex. K at p. 2). The letter again bore the typed name of the parent in place of a written signature and referenced the parent's attorney as being authorized to proceed on the parent's behalf (id.). The letter in evidence is accompanied by a fax cover sheet (id. at p. 1).
[6] Transcripts of proceedings that took place on July 25, September 16, and September 26, 2024 are consecutively paginated with each other (see Tr. pp. 1-210); however, the transcript of the proceeding that took place on October 30, 2024 is separately paginated and, therefore, citations to the final transcript will be preceded by the date (see Oct. 30, 2024 Tr. pp. 1-43).
[7] Specific to the issue of FAPE for the 2023-24 school year, the IHO found that it was undisputed that the district did not have an IEP or IESP in place at the start of the school year (IHO Decision at p. 6). The IHO noted that the student was parentally placed for the 2022-23 school year and, although the district was obligated to reconvene a CSE, it was not obligated to develop an IEP until the parent notified the district that she wanted a public school placement (id. at pp. 6-7). However, the IHO held that the district bore the burden to prove that it offered the student a FAPE and the district "failed to do that in this instance," as the district did not present any evidence or testimony explaining the failure to convene a CSE for the 2023-24 school year (id. at p. 7).
[8] The supervisor testified that she did not know the terms of employment—school employee or independent contractor—of the evaluator who conducted the student's TOL/OYYL psychoeducational evaluation (see Tr. pp. 66-70). The IHO noted this in weighing the supervisor's credibility (see IHO Decision at pp. 8-9), as discussed below.
[9] In contrast, according to an "[a]ssessment of [c]urrent [f]unctioning" set forth in a TOL/OYYL report, the parent provided input on the student's adaptive behaviors including communication, daily living skills, and socialization skills using "[t]he Vineland-3," and the results suggested that the student's "overall level of adaptive functioning" was lower than reported in the psychoeducational evaluation, falling below the first percentile (Parent Ex. H at p. 8).
[10] To be sure, a review of the appropriateness of a unilateral placement is not restricted to only the evidence available to the parent at the time she made the unilateral placement decision insofar as implementation of the programming and services and the student's progress are relevant to the analysis (see Khanimova v. Banks, 2025 WL 722876, at *6 [S.D.N.Y. Mar. 6, 2025], citing C.L., 744 F.3d at 836). Nevertheless, evaluative information about the student's needs gathered several months into the schoolyear at issue would tend to be relevant to a review of the student's progress or lack thereof at the unilateral placement rather than establishing the student's underlying needs that the parent was required to establish were met by the unilateral placement.
[11] It is well settled that, while relevant a factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]), a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364).
[12] The parent argues that the parent was not able to cross-examine any members of the CSE, yet there is no indication in the hearing record that the parent was prevented from calling a member of the CSE as a witness.
[13] The March 2024 IEP also included information from the November 2023 classroom observation that the student "was removed from his . . . class for 22 minutes during the time of the observation" due to his behavior (Parent Ex. C at p. 5). The March 2024 IEP also indicated that the parent expressed concern about the student's frequent removal from class (id.). When the parent testified, she indicated that the parent concerns listed in the IEP regarding the student's behavior were accurate (Oct. 30, 2024 Tr. p. 29).