STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-120
Application of a STUDENT WITH A DISABILITY, by his parents, 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 Law Offices of Regina Skyer and Associates, L.L.P., attorneys for petitioners, by Daniel Morgenroth, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Cynthia Sheps, 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. Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) reimburse them for the costs of their son's tuition at the Fusion Academy of Brooklyn (Fusion) 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 will not be recited here in detail.
The student attended a district school from kindergarten through sixth grade, at which time he began to experience social/emotional deterioration (Parent Ex. L ¶ 6). During the 2021-22 school year (seventh grade), the student struggled with increasing depression and in April 2022, he experienced a major psychotic depression accompanied by command hallucinations (id. ¶ 7). In the summer 2022, the student began home instruction and was "monitored and engaged with" a psychiatrist and attended outpatient psychotherapy with a social worker (id. ¶¶ 8-9).
In an email dated August 24, 2022, the parent sent the district a signed application for home instruction and a HIPAA release form for the 2022-23 school year (Parent Ex. E at pp. 1, 8). In the application, the student's psychiatrist wrote that the student was under her care for "major depressive disorder with psychotic features" (id. at p. 4). The psychiatrist wrote that the student's symptoms of depression and anxiety had worsened in the winter, with the student exhibiting social withdrawal, school absences, and auditory hallucinations and "if [the student] [wa]s unable to tolerate in person school, it [wa]s medically necessary for him to receive home instruction to perform at his fullest academic potential" (id.). During the 2022-23 school year (eighth grade), the student received two hours per day, four days per week of home instruction, and in September 2022 a private neuropsychological evaluation of the student commenced (Parent Exs. C; F at pp. 1, 2; L ¶ 10).
In an email sent to the district dated September 23, 2022, the parents requested that the CSE conduct an evaluation of the student to create an IEP with appropriate programming recommendations (Parent Ex. C). Further, the letter stated the student was under the care of a psychiatrist from whom they were in the process of gathering a psychiatric assessment, as well as a summary letter from the social worker to send to the CSE (id.). The letter also served as consent to conduct any evaluations or assessments deemed necessary by the district, as well as consent to speak to staff at the student's former district school, and to speak to the private psychiatrist and social worker (id.). According to the parent, the district did not respond to the request for a CSE evaluation of the student (Parent Ex. L ¶¶ 12-14).
The parent indicated that for the 2023-24 school year (ninth grade), the student attempted to return to the district high school, but his emotional needs precluded him from attending and there were no special education program, services, or interventions in place for that school year (Parent Ex. L ¶ 15).
The private neuropsychological evaluation of the student concluded on October 3, 2023 after four assessment dates (Parent Ex. F at p. 1). According to the parent, "[a]s the evaluation progressed, it became clear that [the student] required a highly specialized school that could provide him with one-to-one instruction" (Parent Ex. L ¶ 11).
In a letter dated October 5, 2023 sent by the parents' attorney to the district, the parents claimed that the district failed to refer the student to the CSE despite knowing the student's history of depression and home instruction, and failed to respond to the parents' September 23, 2022 letter requesting a CSE evaluation (Parent Ex. B at pp. 1-2). The parents provided 10-day notice to the district of their unilateral placement of the student at Fusion for the 2023-24 school year and intent to seek funding from the district unless the district "conduct[ed] all evaluations, h[eld] a review meeting, create[ed] a valid IEP, and recommend[ed] and secure[d] an appropriate specialized program that c[ould] meet [the student's] social and emotional needs" (id. at p. 2).
On October 11, 2023, the parents registered the student to attend Fusion for the 2023-24 school year beginning on October 17, 2023 (Parent Exs. G; H at p. 1).[1] The enrollment contract stated the student had contracted for 25 sessions of the following classes: algebra I semester 1, biology semester 1, English 9 semester 1, foundations of personal fitness semester 1, and Japanese I semester 1 (Parent Ex. H at p. 1).
The student began attending Fusion on October 17, 2023 (Parent Ex. L ¶ 19). On or about February 8, 2024, the student stopped attending Fusion per the advice of his medical team to take a break from school because the student was experiencing progressive worsening of nausea and vomiting caused by social anxiety especially when he went outside and was in social settings (id. ¶ 22).[2]
The student re-enrolled at Fusion for the 2024-25 school year (Parent Ex. L ¶ 22).
A. Due Process Complaint Notice
In a due process complaint notice dated August 21, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A). Specifically, the parents alleged that the district: failed to locate and identify the student as a student with a disability; deprived the parents' meaningful participation when it failed to convene an IEP meeting after they requested one and after they provided a 10-day notice; and failed to evaluate and develop an IEP for the student (id. at p. 2). The parents also claimed that the student's placement at Fusion was appropriate because it addressed the student's academic and social/emotional needs and was reasonably calculated to enable the student to receive educational benefits and that there were no equitable considerations that would bar funding (id. at p. 3). As relief, the parents requested that the district fund the costs of the student's tuition at Fusion for the 2023-24 school year (id. at p. 2).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on September 26, 2025 and concluded on January 10, 2025 after three days of proceedings included a prehearing conference and a status conference (Sept. 26, 2024 Tr. pp. 1-13; Tr. pp. 1-56).[3] During the impartial hearing, the district representative agreed with the parent that it denied the student a FAPE for the 2023-24 school year (Tr. p. 17).
In a decision dated January 14, 2025, the IHO found that the district conceded during the impartial hearing that it failed to offer the student a FAPE for the 2023-24 school year (IHO Decision at pp. 3-4). Regarding the unilateral placement of the student at Fusion, the IHO determined that the parents did not meet their burden to prove that Fusion offered an educational program that met the student's needs (id. at pp. 5-7). The IHO found that there was no evidence regarding the specific instructional methods or modifications tailored to the student, or details about the student's specific program or services (id. at p. 5). The IHO also determined there was no evidence with respect to how the program offered by Fusion supported the student's social and emotional needs or of his progress in any areas of need (id. at pp. 5-6). The IHO also found that the student's withdrawal from Fusion in February 2024 due to his social anxiety was further evidence that the student's social and emotional needs were not being supported by Fusion, especially considering the severity of these needs (id. at p. 6). The IHO also held that the student's attendance at Fusion was "concerning and weigh[ed] against a finding of appropriateness" (id.).
The IHO then addressed equitable considerations and determined in the alternative that if he were to award tuition funding for Fusion, he would have reduced the total award by $2,160 for the "Mastery" sessions in addition to a 10 percent reduction for the lack of a 10-day notice letter (IHO Decision at pp. 7-8).[4] Regarding the "Mastery" sessions, the IHO determined because the student missed approximately 33 percent of his classes prior to his eventual withdrawal from Fusion in February 2024, that it would be inequitable to hold the district liable for the additional fee of $135 per "Mastery" session for the 16 missed classes the student needed to receive credit for the courses for a total of $2,160 (id. at p. 8). Regarding the 10-day notice letter, the IHO determined the October 5, 2023 letter was sent to the district less than 10 business days prior when the student began attending Fusion on October 17, 2023 (id. at p. 7). The IHO determined that by such time, the parents would not have been able to withdraw the student from Fusion and receive a full refund even if the district had offered an appropriate placement for the student (id.).
As relief, the IHO denied the parents' requested relief for tuition funding at Fusion for the 2023-24 school year and ordered the district to request parental consent to evaluate the student within 35 days of the date of the IHO decision and convene a CSE within 35 days of receiving the evaluations or 60 days from the date of the IHO decision if consent was not provided by the parent (IHO Decision at p. 8).
IV. Appeal for State-Level Review
The parents appeal, alleging that the IHO erred in determining: the evidence was insufficient to establish the appropriateness of Fusion; that Fusion was inappropriate because it did not address the student's social and emotional needs; that there was a lack of evidence of the student's progress at Fusion; and that equitable considerations did not warrant full reimbursement. As relief, the parents request an award for full tuition reimbursement at Fusion of the 2023-24 school year.
In an answer, the district denied all the parents' allegations and requests that the undersigned affirm the IHO's decision denying tuition reimbursement for the 2023-24 school year.
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]).[5]
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
At the outset, the district does not appeal from the IHO's determination that it denied the student a FAPE for the 2023-24 school year and neither party appeals from the IHO's award directing the district to obtain parental consent to evaluate the student and reconvene the CSE to create an IEP based on the updated evaluations (IHO Decision at pp. 3-4, 8). Accordingly, these determinations have become final and binding upon 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]).
A. Unilateral Placement
The parents appeal the IHO's finding that the unilateral placement at Fusion was not specially designed to meet the student's unique needs, did not meet the student's social/emotional needs, and there was no evidence of the student's progress at Fusion.
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, 142 F.3d at 129). 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., 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).
1. Student's Needs
A discussion of the student's needs provides context for the issue to be resolved, namely, whether Fusion delivered specially designed instruction to the student to address his unique needs during the 2023-24 school year.
As noted above, a clinical neuropsychologist conducted a private neuropsychological evaluation of the student over several dates in fall 2022, concluding in October 2023 (October 2023 neuropsychological evaluation) (Parent Ex. F at p. 1).[6] The October 2023 neuropsychological evaluation stated during the COVID-19 pandemic the student started to experience significant symptoms of depression, anxiety, and auditory hallucinations (id.). Additionally, the student began to experience suicidal ideation, significant self-isolation and sat and faced the corner of the room during this time (id.). Further, the student had experienced symptoms of social isolation, social anxiety, paranoia, and psychosis, and had significant difficulty getting through the school day due to his emotional functioning, internal distraction, and comfort level (id. at p. 2). In addition, the neuropsychologist indicated the student's social worker reported that the student was easily overwhelmed and distracted and needed repetition and small group support (id.).
The October 2023 neuropsychological evaluation stated, "with psychological and psychopharmacological interventions," the student's symptomology had improved, but significant emotional challenges continued including significant school related anxiety and isolative behaviors (Parent Ex. F at pp. 1-2). It was reported that the student had been participating in psychotherapy with the social worker for a year and half shortly after he stopped attending school (id. at pp. 1-2). The October 2023 report stated the student's psychotherapy had recently been reduced from three to two sessions per week, with therapy focused on developing coping skills and management of his symptoms of depression and anxiety (id.). The student was closely followed by a psychiatrist and was prescribed three medications to address psychiatric symptomology (id. at p. 2). The October 2023 neuropsychological report stated the psychiatrist remarked that the student's then-current affect was "less flat," but she expressed concern about the student's "negative psychiatric symptoms and potential for psychosis" (id.).
The neuropsychologist assessed the student's cognitive, academic, executive functioning, and social/emotional skills through parental interview, review of records, behavioral observations during testing, and administration of standardized assessments and rating scales (Parent Ex. F at p. 1). The student's overall cognitive abilities were within the average range with a full-scale IQ of 100 (id. at pp. 3, 9). The student demonstrated variability in his cognitive abilities ranging from high average (working memory index standard score 115) to very low (processing speed index standard score 77) (id.). On an objective test measuring sustained visual attention skills the student's performance was not indicative of clinically significant attention challenges, and he demonstrated high average working memory skills (id. at pp. 4, 10).
In terms of executive functioning, the October 2023 neuropsychological evaluation indicated the student exhibited variable executive functioning and organizational skills (Parent Ex. F at pp. 4-5). The student "displayed relatively consistent abilities" in the low average range across measures of verbal fluency, and "difficulty across timed tests of visual scanning, visual-motor sequencing and motor speed measuring cognitive flexibility" (id. at pp. 4-5, 10-11). Rating scales of executive functioning completed by the student's parents indicated an elevated score in the "[s]hift" domain, which according to the neuropsychologist, "often require[d] a higher degree of external structure" for the student "to complete long-term assignments, recall necessary materials, and take notes in class" (id. at pp. 5, 12-13). The neuropsychologist stated the student employed better attention when provided breaks (id. at p. 5). The student was not able to always identify and implement a self-generated plan on tasks he experienced as challenging (id.). The neuropsychologist stated the student would perform best when provided with a structured plan to approach a task or a framework with which to learn novel material and would benefit from appropriate scaffolding to initiate, organize, and plan task approaches leading to efficiency and accuracy of his work (id.).
In terms of academic achievement, the October 2023 neuropsychological evaluation found that the student exhibited average word reading, decoding, decoding fluency, orthographic fluency, and reading fluency skills as well as high average reading comprehension skills (Parent Ex. F at pp. 5, 9-10). To further evaluate the student's reading comprehension skills, the Nelson Denny Reading Test- Form I was administered (id. at pp. 5, 10). Generally, the student progressively answered more questions when provided more time to answer them, highlighting how extra time was necessary to accommodate for the student's slow processing and to allow him to display his knowledge within reading without the constraint of time (id.). In writing, the October 2023 neuropsychological evaluation found that the student demonstrated average essay composition, sentence composition, spelling, and writing fluency skills (id. at pp. 6, 10). In math, the student's skills were consistently in the average range in numerical operations, math problem solving, and math fluency (id. at pp. 6, 9-10).[7], [8]
The October 2023 neuropsychological evaluation assessed the student's social/emotional functioning via observation, and parent and self-report behavior rating scales (Parent Ex. F at p. 6). The neuropsychologist stated that the student presented as a reserved, soft-spoken, and cooperative young man; at times, he appeared self-conscious about his abilities and responded quickly (id.; see Parent Ex. M ¶ 20). Parent rating scales indicated that the student exhibited significant symptoms of anxiety and social withdrawal and some symptoms of odd or idiosyncratic behaviors (Parent Ex. F at p. 6). The student's self-report indicated significant challenges with anxiety, depression, attention problems, interpersonal relations, low self-esteem, a sense of inadequacy, and a negative attitude toward school (id.). Additionally, the student indicated some symptoms of somatization and poor self-reliance (id.). Finally, the Screen for Child Anxiety Related Disorders (SCARED) found the parent's and student's responses were indicative of panic disorder or significant somatic symptoms, generalized anxiety disorder, separation anxiety, and significant school avoidance (id.; see Parent Ex. M ¶ 20).
In conclusion, the neuropsychologist stated that the student's overall cognitive abilities were average, but he experienced challenges in his speeded processing, complex attention, and executive functioning (Parent Ex. F at p. 6; see Parent Ex. M ¶ 21). Throughout testing the student was provided with supports such as scaffolding, rephrasing, and repetition, and "worked best when provided with sufficient time and support to problem solve" (Parent Ex. F at p. 7). The neuropsychologist offered the student diagnoses of generalized anxiety disorder, history of major depressive disorder with psychotic features, and attention-deficit/hyperactivity disorder (ADHD), predominately inattentive presentation, and stated that the student "continue[d] to demonstrate significant symptoms of anxiety and school refusal" (id.). The neuropsychologist stated, "continued psychological and psychopharmacological intervention [wa]s imperative to address [the student's] ongoing social and emotional challenges" (id. at p. 8).
Additionally, the neuropsychologist recommended the student attend a small, structured, and specialized learning environment that offered a small student-teacher ratio, individualized instruction, and scaffolding coupled with appropriate academic challenge and stimulation (Parent Ex. F at p. 7). Furthermore, the neuropsychologist stated due to increased stressors and social/emotional challenges, consideration should be given to an even smaller and more individualized program (id.; see Parent Ex. M ¶ 23). Additional recommendations included 1.5x extended time for exams, testing in a quiet room, and allowing the student to answer in the test booklet. (Parent Ex. F at pp. 7-8). Recommendations to address executive functioning included previewing assigned reading material and upcoming class lectures, providing access to a syllabus for each academic class to preview material a week in advance to minimize anxiety, enhance organization, and improve comprehension (id. at p. 8). Further recommendations included providing written checklists of steps required to complete a task, frequently reviewing learned material while making overt connections to previously learned content, and allowing short breaks of one to two minutes when working (id.).
2. Fusion
Turning to the parties' dispute over the appropriateness of student's unilateral placement, the IHO determined that the hearing record lacked evidence about the specific instructional methods or modifications used with the student or details about the student's specific program or services, and how those were tailored to meet his unique educational and social/emotional needs (IHO Decision at pp. 5-6). Further, the IHO found the student's withdrawal from Fusion in February 2024 and poor attendance provided further evidence that the student's social/emotional needs were not being met by the nonpublic school (id. at p. 6). The IHO determined the record lacked information about the student's progress, how classes were taught or designed to address the student's needs, and any challenges that were addressed by the student's teachers (id.). The parents appeal the IHO decision and contend that the Fusion program met the student's unique learning and social/emotional needs, and progress information was provided in the form of report cards. Generally, the district argues that the hearing record did not include sufficient evidence to show that Fusion provided the student with specially designed instruction to meet his unique needs.
In direct testimony by affidavit, the director of education at Fusion (director of education) testified that Fusion was a private middle and high school that provided all classes in a "one student, one teacher" learning environment (Parent Ex. N ¶¶ 1, 6). According to the director of education, all teachers at Fusion had a "minimum of a bachelor's degree in the area that they [we]re teaching" (id. ¶ 12). All student schedules were similar to a college program; each semester was "either 25 sessions or 30 sessions long" and students attended the same classes on Monday/Wednesday and Tuesday/Thursday or Friday each week, with each schedule individualized based on classes students needed in order to graduate (Tr. pp. 45-46; Parent Ex. N ¶ 9).[9] The director of education testified that if a student missed more than five sessions per class per semester, they had to take additional "mastery sessions" to complete the course to either understand the content or to make up for absences (Tr. pp. 45-46). Additionally, the director of education stated that the "1:1 support provide[d] individualized instruction that allow[ed] [Fusion staff] to differentiate support based on the student's needs" (id. ¶ 13).
According to the director of education, at Fusion all student's social needs were "addressed holistically" within the program, and each student had "individualized goals" for academic, social and emotional skills (Parent Ex. N ¶ 13). The director of education testified that every student at Fusion attended a homework café, which consisted of several tables and a teacher monitor (id. ¶ 10). There were two different homework cafés, one where students socialized and discussed work, and another that was silent (id.). The homework café teacher supported students with homework, if needed, and checked to make sure the students completed their homework before they checked out of the café (id.). In addition, the homework café monitor helped develop students' self-advocacy by helping the students draft an email to a teacher or confer with other students if they had questions about the homework (id. ¶¶ 10, 13). The director of education's affidavit testimony stated that during homework café students had the opportunity to socialize with other students and if a peer issue arose the teacher monitor addressed it immediately or communicated to other teachers through the management system so those teachers could provide additional support and reinforcement (id. ¶ 13). Other social opportunities were provided during lunch where students had access to yearbook, music, and videogame clubs (id. ¶ 11). The program also provided a community minds class, which helped prepare students to engage in appropriate social interactions, and a life skills class that helped students prepare for more independent living (i.e., complete resumes, write professional emails, prepare a budget) (id. ¶¶ 14-15).
Turning to the student's placement, for the 2023-24 school year, the student attended 10-hours per week of instruction and six sessions per week of homework café beginning October 17, 2023 through ending February 8, 2024 (Parent Exs. H at p. 1; I; L ¶ 22). The student's class schedule for Mondays and Wednesdays included one-hour classes for English 9, two homework cafés, lunch, Japanese I, and foundations of personal fitness, with his day beginning at 9:30 a.m. and ending at 3:30 p.m. (Parent Ex. I). On Tuesdays and Thursdays, the student's schedule indicated he arrived at 9:30 a.m. and left at 1:30 p.m. and he had one-hour classes of algebra I, homework café, biology, and lunch (id.). The student did not attend classes on Fridays (id.). The student's course grades in December 2023 ranged from A+ (Japanese, foundations of personal fitness, and biology) to B- (English) and C- (algebra) (Parent Ex. K at p. 1). In February 2023, the student's grades were all within the A+ to B+ range with his English grade rising to an A and algebra rising to a B+ and Japanese falling from A+ to an A (id. at p. 2).
While the director of education testified that each student at Fusion had individualized goals for academic, social, and emotional success, they were not in evidence in the hearing record, or outlined in direct testimony by affidavit or live testimony for this specific student (Parent Ex. N ¶ 13; see Tr. 1-69; Parent Exs. A-N).
Regarding specially designed instruction, the director of education testified that the student needed teachers to provide explicit instruction, break material down into small chunks, check for understanding, and allow for questions (Parent Ex. N ¶ 29). The student benefited from one-to-one instruction in small, quiet classrooms because it accommodated his anxiety and attention difficulties (id. ¶ 30). Additionally, the student "greatly benefited" from the color-coded notes his teacher prepared and provided to him prior to the lessons which improved the pacing of his classes and the quality of his homework because he had notes he could reference (id. ¶ 35). The student completed assignments when teachers provided check-ins and prompting (id. ¶ 30).
The director of education stated that the Fusion's individualized program addressed the student's emotional needs because the student had a number of people he could reach out to for support including the homework café teachers, other students, and teacher leader (who acted as an advocate, held the student accountable, communicated when interventions were needed, and served as a liaison between parents and school) (Parent Ex. N ¶ 34). The director of education testified that the student's teachers could provide extended time for assignments and due dates since it was individual instruction, and the student would not fall behind other students (Tr. p. 36). The director of education did not know if the student was provided scheduled breaks, but the student was "obviously allowed" to take a break if needed (id.).
The parent's affidavit indicated that Fusion reported the student's growth through parent teacher conferences, check-ins, progress reports, and report cards (Parent Ex. L ¶ 28). The parent stated the student made "tremendous progress" and benefited from the one-on-one instructional model because it enabled the student to learn with reduced anxiety and less distractions (id. ¶ 23).[10] Additionally, the parent reported that the student received immediate feedback, clear and repeated instruction broken into manageable chunks, frequent teacher check-ins, and a modified instructional pace to support the student's ability to process and internalize concepts (id. ¶¶ 24, 25, 27).
While the evidence in hearing record shows that the student's executive functioning skills were one of the factors impacting his school performance and he was passing his courses when he attended Fusion, the issue of greatest significance and identified repeatedly in the hearing record as the overarching concern was the student's school refusal and social/emotional difficulties, and the evidence in the hearing record did not show how staff at Fusion addressed these needs.[11] The parents' due process complaint notice and referral letters to the CSE indicated that the student had severe depression that was not being addressed by the district (see Parent Exs. A-C). The evidence shows that the student's social/emotional needs prompted the family to request home instruction for the 2022-23 school year, request a CSE evaluation in September 2022, and unilaterally placed the student at Fusion due to his "growing emotional needs" which "precluded him from attending" school (Parent Exs. B at p. 2; C; E at pp. 1, 4).
In addition, the neuropsychologist testified that the October 2023 neuropsychological evaluation was conducted because the student was experiencing significant symptoms of depression, chronic anxiety, auditory hallucinations, suicidal ideation, and self-isolation (Parent Ex. M ¶ 14). The October 2023 neuropsychological report detailed the student's psychiatric history and offered the diagnoses of generalized anxiety disorder, history of major depressive disorder, with psychotic features, and ADHD, predominately inattentive type (Parent Ex. F at pp. 1-2, 7). In addition, "given [the student's] significant social-emotional concerns," the neuropsychologist recommended a small, structured, specialized learning environment that was "even smaller and more individualized" due to "increased stressors and significant social-emotional challenges" the student was experiencing (id. at p. 7). The parent's testimony by affidavit further detailed the student's social/emotional difficulties, which eventually resulted in the parents placing the student at Fusion (Parent Ex. L ¶¶ 4, 6-11, 15, 17).
The district argues in its answer that Fusion offered no specific program that addressed the student's emotional and behavioral needs. The IHO determined that while the director of education provided information regarding general supports provided to all students, he did not provide information regarding how the student's social/emotional needs were specifically addressed other than the student had classes with one teacher and one student in a quiet setting, and access to teachers at school if he needed support (IHO Decision at p. 5; Parent Ex. N ¶¶ 30, 34).[12] According to the IHO, the one-to-one instruction provided at Fusion arguably "would benefit any student, disabled or not, and there [wa]s no evidence of how [the s]tudent's program was specially designed to meet their unique needs" (IHO Decision at p. 5). The parents argue that the student's success in his classes during the time he was at Fusion supported that Fusion was appropriate. However, the specific strategies and supports, if any, Fusion utilized to address the student's school refusal and anxiety were not in evidence in the hearing record (see Tr. pp. 1-69; Parent Exs. A-N). Moreover, the director of education testified the student was doing well at the beginning of the school year, but as time went on, the student began to struggle a lot and needed a "more intensive support environment" resulting in the student not attending the program in the spring of 2023-24 (Tr. p. 40).
The parents contend in their appeal that the IHO recognized the way in which Fusion was specially designed to accommodate the needs of the student and had many supportive aspects; however, there is no evidence the student utilized such supports or how the supports addressed his social/emotional needs. While a "zen den" was available, there was no discussion about if the student accessed this space or if it was helpful for this student (see Tr. pp. 10-56; Parent Exs. B-N). In addition, the director of education testified that during homework café, the student focused on completing homework and did not provide any information on socialization that may have occurred for the student despite homework café being a time for socialization, if the student chose (Parent Ex. N ¶¶ 13, 35). The student's schedule did not indicate enrollment in the community minds or life skills class that Fusion offered to address social skills (Parent Ex. I). Though the parents indicate that during the homework café and through access to clubs and field trips the student learned how to advocate for himself, there is no evidence describing how this occurred during the time he attended Fusion (see Parent Ex. N ¶ 10). There is similarly no evidence in the hearing record describing that the student asked for help when he had questions regarding his work or how the access to clubs and field trips supported his socialization needs, especially when the student was eventually removed from school due to social anxiety (see Tr. pp. 10-56; Parent Exs. B-N).
Finally, as alluded to by the IHO in the discussion of related services, the hearing record is silent on whether counseling services were provided at Fusion to address the student's significant social/emotional concerns and difficulty attending school, or if Fusion and the student's psychiatrist and therapist (outside providers) had any communication regarding his needs (see Tr. pp. 10-56; Parent Exs. B-N). The parents cite to Application of a Student with a Disability, Appeal No. 21-142 to support their argument and argue that the student in this case received consistent outside support from his psychiatrist and therapist and therefore the IHO's concern regarding how Fusion was addressing the student's social/emotional needs is abated. However, in Application of a Student with a Disability, Appeal No. 21-142, there was evidence in the hearing record that described how that the student's mental health treatments supported his academic learning and the individualized program at Fusion, which provided the student in that case with adequate supports to benefit from his instruction (Application of a Student with a Disability, Appeal No. 21-142).[13] However, unlike in Application of a Student with a Disability, Appeal No. 21-142, where there was a recommendation for the student's outside providers to collaborate with the student's school personnel and there was evidence that the pace of instruction was adjusted while the student continued to access therapeutic and psychiatric support throughout the school year, but in this case there is no indication that the student's providers outside of Fusion were in contact with or advising the student's Fusion personnel to tailor the student's programming to address his social/emotional needs (see Tr. pp. 10-56; Parent Exs. B-N). The evidence is silent on what psychotherapeutic treatments the student had received, what, if any, communications were had between the program and the outside providers, whether any strategies were discussed or implemented by Fusion, and whether such therapeutic interventions had any effect on the student's classroom participation and school attendance, given the student's "significant school related anxiety" (Parent Ex. F at p. 2; see Tr. pp. 10-56; Parent Exs. B-N). This is supported by the director of education's testimony that in spring 2024 the student required more social/emotional support than what was being provided at Fusion, and while he testified that he collaborated with the parents, there was no indication the Fusion staff collaborated with the student's outside providers (see Tr. pp. 39-40). The director of education testified during the impartial hearing he was unaware of any outside services the student received during spring 2024 (Tr. p. 45). Additionally, although the parents argue on appeal that the neuropsychologist was the one that recommended Fusion as appropriate and the October 2023 neuropsychological evaluation was the only evaluation they had to base their decision off of, the neuropsychologist also testified that "even the 1:1 at Fusion was thought to be a challenge for [the student] and ended up being challenging also for him" (Tr. pp. 25, 27-28).[14]
The IHO found the student's attendance and eventual withdrawal from Fusion weighed against a finding that the private school offered an appropriate program to meet the student's unique needs, particularly his social/emotional needs (IHO Decision at p. 7). The parents argue that the 1:1 instruction at Fusion was necessary to motivate the student to come back to school and diminish his emotional vulnerabilities, anxiety, executive functioning challenges, and attentional needs; however, the evidence shows that the student continued to have school avoidance and anxiety surrounding going to school, which, as discussed above, did not appear to be addressed by Fusion with or without support from the outside providers. The parent stated via affidavit testimony that due to an increase in nausea and vomiting caused by social anxiety, especially when the student went outside or was in social settings, the student's medical team advised the family to have the student "take a break from school" in February 2024 (Parent Ex. L ¶ 22). While documentation regarding the student's attendance in the program was not in the hearing record, the student was assigned 16 mastery sessions to make up for absences beyond the allowed 25 absences for the five classes he was enrolled in from October 17, 2023, through February 8, 2024, which was 33 percent of the student's scheduled classes (Parent Ex. J; see IHO Decision at p. 7). Although the parents argue that the student made social/emotional progress while at Fusion, both at home and in the community, the documented absences coupled with the lack of specificity regarding how the student progressed does not support a finding that Fusion provided the student with an appropriate program that met his social/emotional needs and allowed him access to his education (see Parent Ex. L ¶ 28).
The parents allege that the fact that the student was unable to attend his regular public school in 2023-24, though he tried, and because the district had not provided any placement alternatives nor in any way endeavored to respond to the parents' CSE referral request shows that Fusion was appropriate at the time the placement decision was made. However, although the student attended more classes at Fusion than when he attended his public school, the student still had multiple absences and school anxiety, which ultimately resulted in him being prematurely withdrawn from Fusion in the middle of the 2023-24 school year. Additionally, the argument that the student could not attend his regular public school in 2023-24 goes to whether the district offered a FAPE which, as noted above, is not in dispute in this appeal. The argument does not address question of whether Fusion offered the student an appropriate unilateral placement that addressed his special education needs.
Considering the totality of the circumstances, there is insufficient basis to disturb the IHO's determination that the parents did not meet their burden to prove that the student's unilateral placement at Fusion was appropriate.
VII. Conclusion
Having found no basis to disturb the IHO's determination that the parents failed to prove that Fusion offered an educational program that met the student's individual special education needs, especially regarding his social/emotional needs, the necessary inquiry is at an end.
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] Fusion 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).
[2] The hearing record is silent on what instruction the student received from February 2024 through the end of the 2023-24 school year.
[3] The prehearing conference transcript dated September 26, 2024 is paginated pages 1-13; however, the status conference held on November 21, 2024 and the impartial hearing held January 10, 2025 are paginated consecutively beginning at page 1 and continue through page 56 (see Sept. 26, 2024 Tr. pp. 1-13; Tr. pp. 1-56). Since the pages for the prehearing conference, the status conference and the impartial hearing are not all consecutive, and for clarity of the hearing record, the prehearing conference transcript will state the date of September 26, 2024 and be proceeded by the relevant pages. Any citations to the status conference or impartial hearing will not be preceded by a date.
[4] The IHO noted that mastery sessions were additional sessions that addressed instances in which a student had inadequate attendance to receive credit for a course (IHO Decision at p. 6).
[5] 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).
[6] The hearing record and evaluation report did not explain the gap of time between the December 2022 and October 2023 evaluation dates. In affidavit testimony, the neuropsychologist stated the student was initially evaluated over several sessions in September, October, and December 2022, with an "update" completed in October 2023 (Parent Ex. M ¶¶ 1, 13, 17).
[7] In contrast—and unsupported by the evaluation report—the neuropsychologist's affidavit testimony stated the student performed "at or below expectations" on academic skills with weakness in the areas of writing, math and reading fluency (compare Parent Ex. F at pp. 5-6, 9-10, with Parent Ex. M ¶ 19).
[8] The Wechsler Individual Achievement Test: Fourth Edition (WIAT-4) was administered and the student obtained standard scores of 103 (word reading), 103 (pseudoword decoding), 104 (decoding fluency), 100 (orthographic fluency), 114 (reading comprehension), 94 (math problem solving), 90 (numerical operations), 98 (sentence composition), 97 (essay composition), and 113 (spelling) (Parent Ex. F at pp. 9-10). The Kaufman Test of Educational Achievement, Third Edition (KTEA-3) assessed the student's fluency skills and he obtained standard scores of 101 (silent reading fluency), 103 (writing fluency), and 95 (math fluency) (id. at p. 10).
[9] Students received individualized physical education with a gym, yoga studio and dance studio available at the school (Parent Ex. N ¶ 11). Additionally, students participated in two field trips each month, either engaging in community service or enjoying recreational activities (id.).
[10] The district argues that the hearing record does not support that the student made progress at Fusion because, as noted by the IHO, the report cards contain no information as to the curriculum of each class, or how the class was taught or designed to address the student's unique needs. However, it is well settled that 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). However, while not dispositive, a finding of progress is, nevertheless, a relevant factor to be considered in determining whether a unilateral placement is appropriate (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]).
[11] The parents argue on appeal that the student's passing grades warrant a finding of progress and that Fusion was appropriate at the time the unilateral placement decision was made; however, as discussed below, the hearing record lacked evidence showing that Fusion's programming consisted of specially designed instruction that addressed the student's severe social/emotional needs and school avoidance, which resulted in the student having multiple absences and eventual withdrawal from Fusion in February 2024. The parties' arguments on appeal regarding progress neither significantly add to nor detract from the IHO's conclusions in this case.
[12] With respect to the parents' argument that the IHO erred in finding that the director of education's testimony was more conclusionary than informative, the parents further describe the supports Fusion offered all students to show that the director of education's testimony was not conclusory. However, as addressed further below, these were only generalized descriptions of the supports offered and do not provide any information regarding how the student accessed the supports or how the supports helped the student access his education. Accordingly, I agree with the IHO and the parents do not point to sufficient evidence in the hearing record to overturn the IHO.
[13] In its answer, the district also indicates a clear contrast between Application of a Student with a Disability, Appeal No. 21-142 and this matter and accurately notes that in Application of a Student with a Disability, Appeal No. 21-142 the student remained engaged in virtual learning and progressed through instruction in all his classes, unlike the student in this matter, where there is no evidence that Fusion offered any alternative instruction other than in-person instruction to the student (Application of a Student with a Disability, Appeal No. 21-142 at pp. 20-21). Although the hearing record does not indicate whether the student was previously successful in homeschool instruction or if virtual learning was appropriate for the student, this does not negate that the student was unable to stay engaged and continue his program at Fusion like the student in Application of a Student with a Disability, Appeal No. 21-142, as the student eventually withdrew from Fusion in February 2024 (Parent Ex. L ¶ 22).
[14] The neuropsychologist testified in a written affidavit that shortly after completing the initial evaluation he recommended the parents look at Fusion Academy because of its supportive program and the student's need for one-to-one instruction due to his slowed processing speed and anxiety (Parent Ex. M ¶¶ 24, 25). Further, the neuropsychologist testified that he had hoped that the student would be able to be in a small special education program, but he subsequently changed his recommendation to individual support at Fusion because the student was not ready to enter a classroom and even the one-to-one at Fusion was a challenge for the student (Tr. pp. 27-28). The neuropsychologist stated that it was not the size of the class, but rather "the makeup of the class and the therapeutic nature of the class that was more important" (Tr. p. 29). While there is evidence of 1:1 support for the student's academics at Fusion (some of which the IHO noted had to be made up in mastery sessions due to lack of attendance), there is no evidence that Fusion provides therapeutic support that was tailored to the student's needs.