STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-043
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:
MSR Legal & Consulting Services, PLLC, attorneys for petitioner, by Oroma Homa Mpi-Reynolds, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Gail 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 cost of her daughter's tuition at Rebecca School, LLC (Rebecca School) 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 parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail. The student was eligible for special education as a student with autism at all relevant times (Dist. Exs. 2 at p. 1; 7 at p. 1).[1]
As of fall 2022, the student attended a community public school for second grade while enrolled in the district's ASD Horizon Program (Dist. Ex. 7 at pp. 1-2).[2] In October and November 2022, the district conducted a social history update, a classroom observation, and a new functional behavior assessment (FBA) after the student's school requested a reevaluation to determine how to best support the student (Dist. Exs. 5 at p. 1; 6 at p. 1; 7 at p. 1; IHO Ex. I at p. 1).[3]
In or around November 2022, a CSE convened for a meeting in which the student's mother participated (see Oct. 8, 2024 Tr. pp. 89-90; Parent Ex. M ¶ 11).[4], [5] During the fall 2022 meeting, the CSE reviewed the aforementioned assessments and recommended that the student be placed in a State-approved nonpublic school (see Oct. 8, 2024 Tr. pp. 91-92, 95-96; Parent Ex. M ¶¶ 11-12).
On or about February 1, 2023, the student was accepted into a State-approved non-public day program at League School, which would be available as of February 27, 2023 (Dist. Ex. 4 at p. 1). On February 9, 2023, the CSE reconvened and developed an IEP, to be implemented on February 27, 2023, reflecting certain changes requested by League School (Dist. Exs. 2 at p. 1; compare Dist. Ex. 4 at p. 1, with Dist. Ex. 2 at pp. 11-12, 19-23). The February 2023 CSE recommended a 12-month program consisting of placement in an 8:1+1 special class at League School; individual and group speech-language therapy; individual and group counseling; individual occupational therapy (OT); parent counseling and training; testing accommodations; and special transportation (Dist. Exs. 2 at pp. 19-25; 3 at p. 1).[6] The February 2023 IEP indicated that the student would benefit from a behavioral intervention plan (BIP) and noted that the student had a BIP (Dist. Ex. 2 at pp. 11, 26).
According to the parent, the student attended League School from February 27, 2023 through August 2023 (Parent Ex M ¶ 15).
On August 22, 2023, the student's mother signed an enrollment contract with Rebecca School, a private school for students "with neurodevelopmental delays in relating and communicating, including [a]utism [s]pectrum [d]isorder" (Parent Exs. E at p. 1; H at pp. 1, 4). Under the contract's terms, the parent would be responsible for paying tuition for the 2023-24 school year unless she cancelled the student's enrollment by written notice no later than September 18, 2023 (Parent Ex. H at pp. 1-2).
In a letter dated August 24, 2023, the parent, through her attorney, challenged the adequacy of the district's recommended program and placement and expressed her intent to unilaterally place the student at Rebecca School for the 2023-24 school year (see Parent Ex. B at pp. 1, 4).
During the 2023-24 school year, the student attended Rebecca School from September 11, 2023 through June 21, 2024 (see Parent Exs. H at p. 1; K).
A. Due Process Complaint Notice
In a second amended due process complaint notice dated August 19, 2024, the parent, through her attorney, alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A at pp. 1-4).[7] According to the parent, the assessments and evaluations used to develop the 2022 and 2023 IEPs were deficient, the resulting IEPs were inappropriate, and the student's placement at League School was inappropriate (see id.). For example, the parent alleged that, although the February 2023 IEP noted the student's need for "'a program that c[ould] address her unique high-functioning academic capabilities,"' "'provide behavioral interventions and therapy,"' and '"provide . . . multimodal therapies to address her sensory processing and executive functioning needs,' the IEP itself d[id] not recommend such strategies and supports," and "League [School] did not offer such strategies and supports" (id. at p. 4). The parent further alleged that "Rebecca School provided specialized instruction and support tailored to meet [the student's] individual needs utilizing instructional methodologies proven to be effective" for the student's "unique type of disability" (id. at p. 5). As relief, the parent sought direct funding of the costs of the student's enrollment at Rebecca School during the 2023-24 school year, including tuition, related services, and fees, as well as reimbursement of all monies paid by the parent to Rebecca School for the 2023-34 school year (id. at p. 6).
B. Impartial Hearing Officer Decision
After multiple status conferences and a hearing dated devoted to the parent's request for an independent educational evaluation (IEE), an impartial hearing on the merits convened before the Office of Administrative Trials and Hearings (OATH) on October 8 and October 16, 2024 (see Oct. 8, 2024 Tr. pp. 50-135; Oct. 16, 2024 Tr. pp. 1-39).[8] The district offered various exhibits, most of which the IHO admitted into evidence, and presented testimony from the school psychologist who participated in the student's 2022 and 2023 CSE meetings (see Oct. 8, 2024 Tr. pp. 65-71, 85-89; Dist. Exs. 2-7).[9], [10] The parent likewise offered various exhibits, each of which the IHO admitted into evidence (see Oct. 8, 2024 Tr. pp. 78-83; Parent Exs. A-N). Among the parent's exhibits were affidavits of the parent herself and the program director at Rebecca School, each of whom appeared for cross-examination during the hearing (see Oct. 8, 2024 Tr. pp. 79-80; Parent Exs. M; N).
In a decision dated December 13, 2024, the IHO found that the district offered the student a FAPE for the 2023-24 school year and denied the parent's request for relief in full (IHO Decision at p. 17). The IHO found that the school psychologist's testimony, together with the documentary evidence in the hearing record, showed that "the CSE had enough information about the student to address her needs appropriately" (id. at 13). More specifically, the IHO found that the CSE reviewed and considered evaluative and assessment data, including the November 2022 FBA, along with information from the student's related services providers, in developing the February 2023 IEP (id. at pp. 13-14).[11]
The IHO found that the February 2023 IEP reflected information regarding the student's levels of performance and the student's academic, developmental, and functional needs; recommended OT, speech-language therapy, and counseling; recommended support for the student's management needs; and included annual goals that targeted skills related to math, literacy, writing, and communication (IHO Decision at p. 15).[12] The IHO further found that the CSE considered other placement options but deemed those alternatives insufficient to support the student's educational needs (id. at p. 16). Thus, according to the IHO, the February 2023 IEP provided comprehensive, thorough, and effective supports to address the student's identified needs and offered the student a meaningful opportunity to progress academically in the least restrictive environment (id.).[13] The IHO noted that "the [s]tudent's progress, the offerings at [League School,] and other events while the student attended [League School], all occurring after the [February 2023 CSE] meeting" could not be considered in evaluating the appropriateness of the IEP, which must be assessed "prospectively from the time that it was created" (id. at p. 13).
Having found that the district offered the student a FAPE for the 2023-24 school year, the IHO declined to address whether Rebecca School was an appropriate unilateral placement for the student or whether equitable considerations supported the parent's request for relief (IHO Decision at pp. 16-17).
IV. Appeal for State-Level Review
The parent appeals. The parties' familiarity with the issues raised in the parents' request for review and the district's answer is presumed and, therefore, the allegations and arguments will not be recited here in detail. The crux of the parties' dispute relates to whether the IHO displayed the requisite impartiality and professional decorum during the hearing and pre-hearing proceedings. The parties further dispute whether the IHO erred in determining that the district offered the student a FAPE for the 2023-24 school year and, thus, in declining to address the appropriateness of Rebecca School as a unilateral placement and equitable considerations.
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 FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[14]
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., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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
A. Conduct of Impartial Hearing/IHO Bias
As an initial matter, the parent contends that the IHO failed to display impartiality and professional decorum during the hearing and pre-hearing proceedings, thus depriving the parent of a full, fair, and impartial process and giving the appearance of a predetermined decision. The parent alleges several instances of IHO bias during the hearing and pre-hearing proceedings, most of which pertain to the IHO's conduct during the district's cross-examination of the parent. According to the district, the IHO acted properly and within her discretion during the proceedings and in rendering her decision; and, to the extent that the parent disagrees with the IHO's conclusions, such disagreement does not provide a basis for finding actual or apparent bias.
State regulations set forth the procedures for conducting an impartial hearing and address, in part, minimal process requirements that shall be afforded to both parties (8 NYCRR 200.5[j]). Among other process rights, each party shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses (8 NYCRR 200.5[j][3][xii]). Furthermore, each party "shall have up to one day to present its case" (8 NYCRR 200.5[j][3][xiii]). State regulation provides that the IHO "shall exclude any evidence that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious" and "may limit examination of a witness by either party whose testimony the impartial hearing officer determines to be irrelevant, immaterial or unduly repetitious" (8 NYCRR 200.5[j][3][xii][c], [d]).
Generally, unless specifically prohibited by regulation, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]). At the same time, the IHO is expected to ensure that the impartial hearing operates as an effective method for resolving disputes between the parents and district (Letter to Anonymous, 23 IDELR 1073). State and federal regulations balance the interests of having a complete hearing record with the parties having sufficient opportunity to prepare their respective cases and review evidence.
It is well settled that an IHO must be fair and impartial and must avoid even the appearance of impropriety or prejudice (see, e.g., Application of a Student with a Disability, Appeal No. 12-066). Moreover, an IHO, like a judge, must be patient, dignified, and courteous in dealings with litigants and others with whom the IHO interacts in an official capacity and must perform all duties without bias or prejudice against or in favor of any person, according each party the right to be heard, and shall not, by words or conduct, manifest bias or prejudice (e.g., Application of a Student with a Disability, Appeal No. 12-064). An IHO may not be an employee of the district that is involved in the education or care of the child, may not have any personal or professional interest that conflicts with the IHO's objectivity, must be knowledgeable of the provisions of the IDEA and State and federal regulations and the legal interpretations of the IDEA and its implementing regulations, and must possess the knowledge and ability to conduct hearings and render and write decisions in accordance with appropriate, standard legal practice (20 U.S.C. § 1415[f][3][A]; 34 CFR 300.511[c][1]; 8 NYCRR 200.1[x]).
The parent asserts that the IHO improperly limited her opportunity to respond during cross-examination and berated her for a technical issue beyond her control.[15] The district argues that, if anything, the IHO's interjections during the district's cross-examination of the parent would have compromised the district's case.
The record shows the following occurrences during the district's cross-examination of the parent: the district's counsel attempted to question the parent regarding a parent exhibit, namely, the enrollment contract with Rebecca School; the parent was unable to open the document on her computer; and, after some time had passed, the IHO directed the district's counsel to move along (see Oct. 16, 2024 Tr. pp. 8-18). The questioning at issue reflected an apparent attempt to elicit an admission from the parent that she signed the Rebecca School enrollment contract before sending a 10-day notice of unilateral placement to the district (see id.).
While the parent implies that the IHO interrupted her testimony during cross-examination, review of the hearing record reveals that the IHO interrupted the district's line of questioning (see Oct. 16, 2024 Tr. pp. 8-18). Indeed, the right to elicit testimony from the parent on cross-examination belonged to the district, not the parent (cf. Application of a Student with a Disability, Appeal No. 23-076 [finding that, while "a witness giving testimony by affidavit [must] be made available for cross-examination," the district waived its right to cross-examine the parent's witnesses by its failure to appear for the hearing]). To the extent that the parent wished to explain the timing of the Rebecca School enrollment contract, the lack of such testimony did not prejudice her request for relief, as the timing of the enrollment contract was not dispositive (see C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 [2d Cir. 2014] [holding that the parents' "pursuit of a private placement," even assuming they had no intention to keep the student in public school, was not a basis to deny their request for tuition reimbursement absent a finding that the parents "obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]; see also Application of a Student with a Disability, Appeal No. 24-606 [stating that "the timing of the parent's contract is not, on its own, determinative of the matter"]).[16] I further note that the IHO offered the parent's counsel an opportunity for redirect examination after the district's questioning concluded, but the parent's counsel declined that opportunity (Oct. 16, 2024 Tr. p. 18).
As stated above, an IHO has broad discretion to maintain control of the hearing process, and the IHO's effort to keep the hearing moving toward a timely conclusion does not lead me to a finding of bias (see, e.g., Application of a Student with a Disability, Appeal No. 22-070 [finding no bias against the parent where "[t]he hearing record d[id] not show that the IHO prevented the parent from putting on a case to support her claims or that she denied the parent's due process rights"]).
Moreover, the hearing record does not support the parent's assertion that the IHO berated the parent but shows that the IHO expressed frustration that the parent's counsel had not adequately prepared her witness (see Oct. 16, 2024 Tr. pp. 10-11).
Indeed, review of the hearing record reveals that the IHO was impatient, critical toward the attorneys, and annoyed over background noise during the parent's testimony (see Aug. 14, 2024 Tr. pp. 31-49; Oct. 16, 2024 Tr. pp. 10-17). Nevertheless, the Supreme Court has held that "expressions of impatience, dissatisfaction, annoyance, and even anger" do not establish bias or partiality" (Litkey v. United States, 510 U.S. 540, 555-56 [1994]). According to the Supreme Court, "judicial remarks . . . that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge" unless "they reveal an opinion that derives from an extrajudicial source [or] such a high degree of favoritism or antagonism as to make fair judgment impossible" (Litkey, 510 U.S. at 555-56). In this case, there is no evidence or allegation that extrajudicial matters influenced the proceedings or the resulting decision. Nor was the IHO's frustration directed solely to the parent and/or parent's counsel. The IHO displayed frustration with the district's counsel as well, particularly during cross-examination of the parent (see Oct. 16, 2024 Tr. pp. 10-17). Thus, while the IHO's demeanor in this case was a poor model of the patience, dignity, and courteousness expected of an IHO, it was not a demonstration of bias against the parent (see, e.g., Application of a Student with a Disability, Appeal No. 22-070 [finding that, although the "IHO should have used better language to explain her frustration with the parent advocate's line of questioning," the IHO did not exhibit bias against the parent]).
The parent further asserts that the IHO offered unsolicited legal advice to the district by instructing the district's counsel to seek a negative inference against the parent during the district's cross-examination of the parent; the IHO offered unsolicited legal advice during the August 2024 status conference by advising the district's counsel regarding the evidence the district should present at the hearing; the IHO allowed the district's witness to submit a document, which the district had not previously disclosed to the parent's counsel, during the hearing; and the IHO made credibility determinations in favor of the district while denying the parent the opportunity to be fully heard. The district asserts that the parent had a full and fair opportunity to present their case at the impartial hearing, which was conducted in a manner consistent with the requirements of due process.
While the parent claims that the IHO improperly allowed the district's witness to submit a document which the district had not previously disclosed, the record shows that the IHO requested the document, namely, the November 2022 FBA, and entered it as an IHO exhibit, not a district exhibit (see Oct. 8, 2024 Tr. pp. 110-12; IHO Ex. I).[17] In fact, the IHO stated on the record that the document would be marked "as an IHO exhibit so it's clear that the [d]istrict didn't submit it on their case" (Oct. 8, 2024 Tr. p. 112). The record further shows that the IHO inquired whether the parent objected to the IHO "calling for that document for clarification and completion [of the record] and marking it an IHO exhibit," and the parent's counsel answered in the negative (Oct. 8, 2024 Tr. pp. 112-13).
As for the August 2024 status conference, the parent cites the following remarks by the IHO to the district's counsel as improper: "[Y]ou have to present the '23/'24 [IEP] and you're going to have to have a witness which says whatever was sent or SESIS and show me. And you have to have a witness about the placement then" (Aug. 14, 2024 Tr. p. 35).
The IHO has a responsibility to develop a complete and adequate hearing record, containing information that is relevant to the matters at issue (see 8 NYCRR 200.5[j][3][vii]). In this case, the parent challenged the adequacy of the November 2022 FBA, as well as the recommended program and placement (see Parent Ex. A at pp. 1-4). Therefore, I cannot conclude that the IHO acted improperly by directing the district to submit evidence concerning the recommended program and placement and requesting a copy of the FBA report (see Parent Ex. A at pp. 1-4; Application of a Student Suspected of Having a Disability, Appeal No. 22-124 [noting the IHO's authority to request evidence "for the purpose of ensuring the completeness of the hearing record"]; see also Application of a Student with a Disability, Appeal No. 22-112 [stating that "[t]he IHO may direct the parties to present evidence supporting their respective positions at the hearing"]).
Although the IHO suggested that the district's counsel request a negative inference based on the parent's inability to reference a particular document during cross-examination, the record shows no indication that the district actually requested a negative inference against the parent, and the IHO's decision includes no mention of a negative inference (see IHO Decision at pp. 4-17; Oct. 16, 2024 Tr. pp. 14-18; IHO Ex. VII).
Moreover, review of the hearing record reveals that the IHO made allowances for the parent's counsel. Specifically, the IHO noted deficiencies in the due process complaint notice, allowed the parent's counsel to amend the due process complaint notice over the district's objection and, during the August 2024 conference, suggested that the parent's counsel amend the due process complaint for a second time (see July 24, 2024 Interim IHO Decision at pp. 1, 3; June 24, 2024 Tr. pp. 11-13; Aug. 24, 2024 Tr. pp. 43-45; IHO Ex. II). Under the circumstances, I cannot conclude that the alleged instances of unsolicited advice reflect favoritism toward the district or bias against the parent or parent's counsel such that the IHO's decision appeared predetermined (cf. Application of the Dep't of Educ., Appeal No. 11-049 [admonishing the IHO for "[p]roviding tactical advice to one of the parties"]).
Contrary to the parent's assertion that the IHO denied the parent the opportunity to be fully heard, the record shows that the parent introduced testimony by affidavit in lieu of direct examination; introduced documentary evidence, some of which the IHO admitted over the district's objection; cross-examined the district's witness through her counsel; and had the opportunity to give live testimony upon examination by her counsel (see Oct. 8. 2024 Tr. pp. 78-83, 103-131; Oct. 16, 2024 Tr. pp. 5-8, 18; Parent Exs. A-N).
Finally, the parent's disagreement with the IHO's credibility determinations and other conclusions does not provide a basis for finding actual or apparent bias (see Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 [2d Cir. 2009] ["Generally, claims of judicial bias must be based on extrajudicial matters, and adverse rulings, without more, will rarely suffice to provide a reasonable basis for questioning a judge's impartiality"]).
Overall, the hearing record demonstrates that the parent had the opportunity to present evidence and arguments in support of her request for relief and that the IHO conducted the impartial hearing in a manner consistent with the requirements of due process see Educ. Law § 4404[2]; 34 CFR 300.514[b][2][i], [ii]; 8 NYCRR 200.5[j]). Accordingly, my review of the hearing record does not lead me to the conclusion that the IHO exhibited bias against the parent or the parent's counsel such that the parent was prevented from developing the hearing record or otherwise deprived of a full and fair opportunity to be heard (see Withrow v. Larkin, 421 U.S. 35, 47 [1975] [holding that administrative hearing officers are entitled to "a presumption of honesty and integrity"]; cf. Application of a Child with a Disability, Appeal No. 04-046 [finding bias on the part of the IHO against the parents' representatives where the hearing record showed that the IHO "repeatedly shout[ed] at persons appearing for" the parents, "to the point where the hearing could not proceed at one point," and "attempt[ed] to bar the parents' advocate from the first day of the hearing" but showed no instances of the IHO yelling at the district's attorney or witnesses).
B. Scope of Impartial Hearing and Review
The parties further dispute whether the IHO erred in determining that the district offered the student a FAPE for the 2023-24 school year and, thus, declining to address the appropriateness of Rebecca School as a unilateral placement and equitable considerations. Before addressing the merits, I must determine whether the particular claim presented on appeal was sufficiently raised before the IHO.
The crux of the parent's argument on appeal is that League School failed to implement a BIP, as recommended in the student's IEP. The parent argues that, despite clear articulation of that non-implementation issue, the IHO erred in disregarding the parent's allegations regarding non-implementation of a BIP at League School; in applying the "retrospective evidence" rule or, in other words, declining to consider occurrences after the February 2023 CSE meeting; and in determining that the district met the requisite burden of proof absent proof that League School implemented a BIP for the student.[18] The district argues that, although it was not obligated to present evidence that League School implemented the student's IEP, the hearing record shows that a BIP was in place at League School.
Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing (Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056). Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[i][7][i][a]; [j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]). Indeed, "[t]he parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function. To permit [the parent] to add a new claim after the resolution period has expired would allow them to sandbag the school district" (R.E., 694 F.3d 167 at 187-88 n.4; see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 [2d Cir. June 18, 2014]).
When a matter arises that did not appear in a due process complaint notice, the next inquiry is whether the district, through the questioning of its witnesses, "open[ed] the door" to the issue under the holding of M.H. v. New York City Department of Education (685 F.3d at 250-51; see also Bd. of Educ. of Mamaroneck Union Free Sch. Dist. v. A.D., 739 Fed. App'x 79, 80 [2d Cir. Oct. 12, 2018]; B.M., 569 Fed. App'x at 59; J.G. v. Brewster Cent. Sch. Dist., 2018 WL 749010, at *10 [S.D.N.Y. Feb. 7, 2018]; C.M. v. New York City Dep't of Educ., 2017 WL 607579, at *14 [S.D.N.Y. Feb. 14, 2017]; D.B. v. New York City Dep't of Educ., 966 F. Supp. 2d 315, 327-28 [S.D.N.Y. 2013]; N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 584-86 [S.D.N.Y. 2013]; A.M. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 282-84 [S.D.N.Y. 2013]; J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, *9 [S.D.N.Y. Aug. 5, 2013]).
Contrary to the parent's contention, the second amended due process complaint notice did not clearly articulate the parent's claim that League School deviated from the student's IEP by its failure to implement a BIP (see Parent Ex. A at pp. 2-4). With respect to behavioral interventions, the second amended due process complaint notice alleged that, "[a]lthough the February 2023 IEP note[d]" the student's need for "'behavioral interventions and therapy,"' "the IEP itself d[id] not recommend such strategies and supports," and "League [School] did not offer such strategies and supports" (Parent Ex. A at p. 4). Rather than conveying a deviation from the February 2023 IEP, such allegations convey disagreement with the substance of the IEP or, more specifically, the CSE's failure to recommend behavioral interventions, a different claim altogether.[19], [20] Thus, the second amended due process complaint notice failed to afford the district notice of the non-implementation claim now presented on appeal.
Despite two amendments to the due process complaint notice and multiple pre-hearing conferences, the parent's belief that non-implementation of a BIP resulted in deprivation of a FAPE had not been clearly articulated at the time the hearing convened on October 8, 2024 (see generally Nov. 9, 2023 Tr. pp. 1-7; Jan. 17, 2024 Tr. pp. 16-20; Feb. 14, 2024 Tr. pp. 1-7; Mar. 13, 2024 Tr. pp. 28-34; April 16, 2024 Tr. pp. 35-40; May 22, 2024 Tr. pp. 41-46; June 24, 2024 Tr. pp. 1-23; Aug. 14, 2024 Tr. pp. 24-29; Parent Ex. A; Due Process Compl. Notice; Amended Due Process Compl. Notice). Nor does the hearing record indicate that the district either agreed to expand the scope of the hearing to include non-implementation of a BIP or "opened the door" to the issue through its questioning of hearing witnesses (see Oct. 8, 2024 Tr. pp. 85-103; Oct. 16, 2024 Tr. pp. 9-18). Although the parent raised the issue in her closing brief, the parent may not expand the scope of the hearing unilaterally (see IHO Ex. VIII at p. 7).[21] Accordingly, the IHO did not err in failing to require proof that League School implemented a BIP or in failing to address the matter (see, e.g., Application of the Dep't of Educ., Appeal No. 21-064 [finding that allegations omitted from the due process complaint notice and amended due process complaint notice were outside the scope of the hearing where such allegations were first raised in the parent's opposition to the district's motion and during the parent's examination of a hearing witness]).
Finally, State regulation provides that an appeal to the Office of State Review must set forth "a clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately," and further specifies that "any issue not identified in a party's request for review . . . shall be deemed abandoned and will not be addressed by a State Review Officer" (8 NYCRR 279.8[c][2], [4]; see Phillips v. Banks, 656 F. Supp. 3d 469, 483 [S.D.N.Y. 2023], aff'd, 2024 WL 1208954 [2d Cir. Mar. 21, 2024]; L.J.B. v. N. Rockland Cent. Sch. Dist., 2024 WL 1621547, at *6 [S.D.N.Y. Apr. 15, 2024]; Davis v. Carranza, 2021 WL 964820, at *12 [S.D.N.Y. Mar. 15, 2021] [upholding an SRO's conclusions that several claims had been abandoned by the petitioner]; M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *23 [S.D.N.Y. Sept. 28, 2018] [upholding dismissal of allegations set forth in an appeal to an SRO for "failure to identify the precise rulings presented for review and [failure] to cite to the pertinent portions of the record on appeal, as required in order to raise an issue" for review on appeal]).
Although the due process complaint notice included a host of other challenges to the recommended program and placement, those issues are not identified in the request for review as grounds for reversal and are therefore deemed abandoned (compare Parent Ex. A at pp. 2-4, with Req. for Rev. at pp. 4-10).
VII. Conclusion
In summary, the parent's arguments and the hearing record, as a whole, do not present a basis to overturn the IHO's determination that the district offered the student a FAPE for the 2023-24 school year. Thus, the necessary inquiry is at an end, and I need not reach the issues of whether Rebecca School was an appropriate unilateral placement for the student or whether equitable considerations supported the parent's request for relief (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).
I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations above.
THE APPEAL IS DISMISSED.
Footnotes
[1] The student's eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[2] The ASD Horizon Program is a specialized program within the district for students "with an educational disability classification of autism, below average to average intelligence with areas of strengths and weaknesses, and academic skills on or near grade level" (Dist. Ex. 7 at p. 1).
[3] The student underwent a psychoeducational evaluation in December 2021 and a neuropsychological evaluation in May 2022 (Dist. Ex. 2 at pp. 2-4).
[4] The district claimed that the fall 2022 CSE meeting took place on November 17, 2022, while the parent claimed that the fall 2022 CSE took place in December (Oct 8, 2024 Tr. p. 90; Parent Ex. M ¶ 11). Neither party offered a copy of the 2022 IEP for admission into evidence.
[5] The transcripts from the impartial hearing in this matter were not consecutively paginated throughout the impartial hearing. For clarity, transcript citations in this decision will refer to the date of the impartial hearing and the page number, such as "Oct. 8, 2024 Tr. p. 1.
[6] According to a prior written notice dated September 26, 2023, the CSE considered the following materials in developing the February 2023 IEP: social history update dated November 1, 2022; classroom observations dated November 8, 2022; and FBA dated November 10, 2022 (District Ex. 3 at p. 2).
[7] The parent previously filed a due process complaint notice dated September 11, 2023, and an amended due process complaint dated July 2, 2024, in which the parent alleged that the district denied the student a FAPE for the 2021-22, 2022-23, and 2023-24 school years (Due Process Compl. Notice at p. 1; Amended Due Process Compl. Notice at p. 1). On or about July 5, 2025, the district moved to dismiss the parent's claims concerning the 2021-22 school year as time-barred under the applicable statute of limitations (Mot. to Dismiss at pp. 1-3, 7). In a decision dated July 24, 2024, the IHO denied the motion with leave to renew, reasoning that the district provided no evidence to support its position (July 24, 2024 Interim IHO Decision at p. 4). The second amended due process complaint sought relief only for the 2023-24 school year (see Parent Ex. A at pp. 1, 5-6).
[8] The IHO was appointed in May 2024, after a prior IHO's recusal (see May 22, 2024 Tr. p. 44; June 24, 2024 Tr. pp. 1-2; IHO Decision at p. 3). The parent offered several exhibits, each of which the prior IHO admitted into evidence, and the prior IHO issued an interim order dated January 8, 2024 (see Dec. 13, 2023 Tr. pp. 10-12; Jan. 8, 2024 Interim IHO Decision).
[9] Only District Exhibits 2 through 7 were admitted into evidence, as the district withdrew proposed District Exhibit 1 (see Oct. 8, 2024 Tr. pp. 65-71).
[10] The same school psychologist conducted the November 2022 social history update, classroom observation, and FBA (see Oct. 8, 2024 Tr. pp. 85-86; Dist. Exs. 5 at pp. 1-2; 6; 7 at p. 1; IHO Ex. I at p. 1).
[11] According to the IHO, the November 2022 FBA assessed a proper scope of behaviors to be addressed in the BIP" (IHO Decision at p. 13).
[12] The IHO found the school psychologist's testimony that the February 2023 IEP included appropriate annual and short-term goals that were specifically tailored to the student needs and measurable to be "credible and sufficient to support the established goals" (IHO Decision at p. 15). The IHO also credited the school psychologist's testimony that the CSE addressed the parent's concerns during the February 2023 meeting (id.).
[13] The IHO's decision contains a mistaken reference to the February 2023 IEP as the "3.29.23 IEP" (IHO Decision at p. 16).
[14] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[15] More specifically, the parent asserts that the IHO interjected during cross-examination, either cutting the parent's responses short or flat-out denying the parent the opportunity to answer the question.
[16] The enrollment contract and the notice of unilateral placement were already entered into evidence and could speak for themselves (see Oct. 8, 2024 Tr. pp. 78-83; Parent Exs. B; H). Thus, considering the IHO's authority to exclude evidence and limit testimony that she "determine[d] to be irrelevant, immaterial, unreliable or unduly repetitious," (8 NYCRR 200.5[j][3][xii][c]-[e]), it was within the IHO's discretion to bar that particular line of questioning altogether.
[17] The district had presented a cover sheet to the November 2022 FBA report but had not presented the complete report (see Oct. 8, 2024 Tr. pp. 67-69, 110-12; Dist. Ex. 6).
[18] Under State law, the burden of proof has been placed 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 Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85).
[19] Even to the extent the allegation contained in the second amended due process complaint notice refers to the League School not offering behavioral strategies and supports (see Parent Ex. A at p. 4), this assertion is really a "substantive attack[] on [the] IEP . . . couched as [a] challenge[] to the adequacy" of the League School's capacity to implement the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 245 [2d Cir 2015]).
[20] Given that the second amended due process complaint notice conveyed disagreement with the substance of the February 2023 IEP rather than a deviation from the IEP, the IHO did not err in declining to consider occurrences after the February 2023 CSE meeting (see R.E., 694 F.3d at 186 [holding that an "IEP must be evaluated prospectively as of the time of its drafting"]; C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, at *13 [S.D.N.Y. Dec. 23, 2013] [stating that "a substantively appropriate IEP may not be rendered inadequate through testimony and exhibits that were not before the CSE about subsequent events"]).
[21] I note that the IHO did not make a specific finding that non-implementation of a BIP at League School was outside the scope of the impartial hearing. The IHO found that the parent's closing brief raised several new issues which could not be considered, but the IHO did not identify non-implementation of a BIP among those issues (see IHO Decision at pp. 11-12).