STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-141
Application of a STUDENT WITH A DISABILITY, by his 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:
Law Office of Philippe Gerschel, Attorneys for the petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Abigail Hoglund-Shen, 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, in part, her request that respondent (the district) fund the costs of her son's tuition at Strivright/the Auditory Oral School of New York (AOSNY) for the 2024-25 school year.[1] The district cross-appeals from the portions of the IHO decision that found that AOSNY was an appropriate placement for the student, that equitable considerations favored the parent, and as to pendency. The appeal must be sustained in part. The cross-appeal must be sustained in part.
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 this case and the IHO decision will not be recited here in detail. Briefly, a committee on preschool special education (CPSE) convened on April 4, 2024, found the student eligible for special education as a preschool student with a disability, and recommended that the student attend a special class in an integrated setting, and receive one 30-minute session per week of individual speech-language therapy, two 30-minute sessions per week of group speech-language therapy, one 30-minute session per week of individual occupation therapy (OT), and two 30-minute sessions per week of group OT (Parent Ex. B at pp. 1, 13). The April 2024 CPSE also recommended that the student receive the same special education program and services during July and August 2024 (id. at p. 13). The IEP indicated the recommended services were to be provided at a childcare location selected by the parent (id. at p. 1). The parent selected the Strivright program at AOSNY to implement the student's April 2024 preschool IEP (Parent Ex. D at p. 2).
A CSE convened on June 26, 2024 for the student's kindergarten IEP process, found the student eligible for special education for the 2024-25 school year as a student with a speech or language impairment, and recommended that the student attend a 12:1+1 special class for core academic subjects, and receive three 30-minute sessions per week of individual OT, three 30-minute sessions per week of individual speech-language therapy, and special transportation (Parent Ex. L at pp. 1, 14-15, 20- 21). The June 26, 2024 IEP had an implementation date of September 1, 2024 and the recommended services had a projected start date of September 1, 2024 (id. at pp. 14-15).
On August 28, 2024, the parent signed a contract with AOSNY to enroll the student for the 2024-25 school year (Parent Ex. F). The contract indicated the costs of the student's program consisted of: a classroom placement for September through June at a cost of $91,300; a $300 registration fee; and $24,000 for the student's related services, consisting of three 30-minute sessions per week of OT and three 30-minute sessions per week of speech-language therapy (id.). The total cost of the student's attendance was $115,600 for the 2024-25 school year (id.)
In a letter, dated September 10, 2024, the parent, through her attorney, expressed her disagreements with the recommendations made by the June 2024 CSE , her intention to unilaterally place the student at AOSNY if the student's needs were not properly addressed by the district, and her intention to seek public funding for the costs of the student's tuition at AOSNY (Parent Ex. C).
A. Due Process Complaint Notice
In a due process complaint notice, dated September 10, 2024, the parent alleged that the CSE's decision to remove the student from a 12:1+2 special class in an integrated setting and recommend that he be placed in a 12:1+1 special class was inappropriate (Parent Ex. A at p. 4-5). The parent described the student's needs and asserted that he required a class with supports for his specialized auditory processing and cognitive delays and opined there could be "serious harm done to [the student's] ability to make progress in school" if the student received a program that was less supportive than a 12-month 12:1+2 special class (id. at p. 4). The parent stated that, due to the defects in the student's June 2024 IEP, she unilaterally placed the student at AOSNY for the 2024-25 school year (id. at p. 6). As relief, the parent requested an order finding that the district's failure to recommend an appropriate program resulted in a denial of a free appropriate public education (FAPE) for the 2024-25 school year, finding that the June 2024 IEP failed to properly address the student's delays for the 2024-25 school year, finding that the June 2024 IEP was inappropriate because it removed the student's summer program, and awarding direct funding for the cost of the student's attendance at AOSNY for the 2024-25 school year (id.).
B. Impartial Hearing Officer Decision
Following a prehearing conference on October 21, 2024, an impartial hearing convened and concluded before an IHO with the Office of Administrative Trials and Hearings (OATH) on November 25, 2024 (Tr. pp. 1-25).
The IHO issued an interim decision on pendency, dated November 25, 2024, finding that the student's April 4, 2024 preschool IEP was basis of pendency for this matter (IHO Interim Decision pp. 1-2). The IHO found that the student's placement during the pendency of this proceeding consisted of a special class in an integrated setting at AOSNY, three 30-minute sessions per week of speech-language therapy, and three 30-minute sessions per week of OT, with services delivered as part of a 12-month school year (id. at p. 2).
In a decision dated January 24, 2025, the IHO found that the district provided no evidence of the appropriateness of its program and placement for the student and, thus, the district denied the student a FAPE for the 2024-25 school year (IHO Decision at p. 4). The IHO went on to find that the parent presented sufficient evidence to demonstrate that her unilateral placement of the student was appropriate to meet his individual needs (id.). However, the IHO determined that the unilateral placement was for a 10-month school year, not a 12-month school year and, even if it were for a 12-month school year, there was insufficient evidence in the hearing record to meet the parent's burden of demonstrating that the student required a 12-month school year to prevent substantial regression (id. at pp. 4-5). Regarding equitable considerations, the IHO noted the parent asserted the district should have recommended a 12-month school year program for the student and that the evidence in the hearing record "suggest[ed] that the [p]arent placed the [s]tudent in a 10-month program" (id. at p. 5). The IHO then determined that the parent had been billed for a 12-month school year, but the student only attended AOSNY from September 5, 2024 until June 24, 2025, which was consistent with a 10-month school year (id.). The IHO reduced the parent's award based on the student's actual attendance from $115,600 for 12-months of instruction to $96,333.33 for the student's "actual attendance" for 10-months (id.). In conclusion, the IHO ordered the district to fund or reimburse the parent for the student's tuition at AOSNY in an amount not to exceed $96,333.33 (id. at p. 6).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in reducing the tuition award because she erred in finding the parent sought tuition for the 12-month school year, instead of the 10-month school year. The parent asserts that the contract the parent signed with AOSNY shows that the parent contracted for the student's attendance for the 10-month school year, from September 2024 through June 2025. The parent also alleges that the student's related services, which were listed in the contract between the parent and AOSNY, were to be provided for 40 weeks, consistent with a 10-month school year. The parent requests that the IHO's decision be amended to accurately reflect the cost of tuition for the 10-month 2024-25 school year, which was $115,600.
The district submits an answer and cross-appeal. In its cross-appeal, the district asserts that the IHO erred in awarding pendency at AOSNY. The district argues that because pendency does not lie in a "brick and mortar" institution, the IHO should not have identified AOSNY as part of the student's pendency placement. The district also cross-appeals from the IHO's finding that the parent demonstrated the appropriateness of AOSNY. The district argues that the evidence in the hearing record does not sufficiently establish that the program at AOSNY was specially designed to meet the student's needs. Finally, with respect to equitable considerations, the district argues that the IHO correctly reduced the parent's award because the parent specifically challenged the district's failure to provide a 12-month program to the student and the parent implicitly represented that AOSNY was a 12-month program in her due process complaint notice. The district further asserts that the hearing record is unclear as to whether the parent contracted with AOSNY for 12-month services as according to the AOSNY progress reports and the testimony of the AOSNY director, the student attended AOSNY during the summer.
In an answer to the district's cross-appeal, the parent argues that she is entitled to pendency at AOSNY because the student's April 2024 IEP was implemented at AOSNY at district expense. The parent also argues that she met her burden of proof to demonstrate the appropriateness of the unilateral placement at AOSNY and that equitable considerations favor the parent.
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]).[2]
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
The parties do not dispute the IHO's finding that the district denied the student a FAPE for the 2024-25 school year. Accordingly, this finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
A.Preliminary Matters
1.Pendency
I first turn to the parties' arguments regarding pendency. The district asserts in its cross-appeal that the IHO's November 25, 2024 interim decision on pendency should be amended to remove reference to AOSNY, because pendency refers to the educational program and not a specific "'bricks and mortar'" location. According to the parent, the student's educational program was last implemented at AOSNY and the student's placement should, therefore, continue at AOSNY.
The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[3] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]). A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]).
Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]). However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]).
The parties do not dispute that the student's April 2024 CPSE IEP serves as the basis of pendency for this matter. Review of the April 2024 CPSE IEP shows that it recommended the student be placed in a special class in an integrated setting at an "early childhood program selected by parent," along with related services of speech-language therapy and OT (Parent Ex. B at p. 13). In a letter dated April 4, 2024, the district confirmed that the student's April 2024 CPSE IEP would be implemented at Strivright, which, as noted above, was synonymous with AOSNY (Parent Ex. D at p. 2).
Unaddressed by either party is the fact that, at the time of the filing of the due process complaint notice in this matter on September 10, 2024, the student was no longer a preschool student with a disability and was, instead, a school age student for the 2024-25 school year (Parent Ex. L at p. 1).
Although State regulations do not require that a student who had previously been identified as a preschool student with a disability remain in a preschool program for which he or she is no longer eligible by reason of age (8 NYCRR 200.16[h][3][i]; see 8 NYCRR 200.5[m]), SROs have long noted that the IDEA makes no distinction between preschool and school-age children and consequently, if a student is no longer eligible to remain in a particular preschool program, the district remains obligated to provide the student with "comparable special education services during the pendency of an appeal from the CSE's recommendation for [the student's] first year of education as a school age child" (Application of a Child with a Handicapping Condition, Appeal No. 91-25; see Henry v. Sch. Admin. Unit No. 29, 70 F. Supp. 2d 52, 61 [D.N.H. 1999] [holding that when a student has aged out of a particular program, the district "must fulfill its stay-put obligation by placing a disabled student at a comparable facility"]; Application of a Student with a Disability, Appeal No. 16-020; see also Makiko D. v. Hawaii, 2007 WL 1153811, at *10 [D. Haw. Apr. 17, 2007]; Laster v. Dist. of Columbia, 394 F. Supp. 2d 60, 65-66 [D.D.C. 2005]; Letter to Harris, 20 IDELR 1225 [OSEP 1993]).
As noted above, pendency is not based on a particular location but is focused on the general level and type of services (see Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents., 629 F.2d at 753, 756). Thus, notwithstanding that the student "aged out" of the programs available at the preschool location, the April 2024 CPSE IEP remained the student's pendency IEP (see L.B. v. New York City Dep't of Educ., 2022 WL 220085, at *3 [S.D.N.Y. Jan. 25, 2022]).
Accordingly, in this instance, beginning with the filing of the due process complaint notice, the student was entitled to receive comparable special education services to the services recommended in the April 2024 CPSE IEP, more specifically a special class along with related services consisting of one 30-minute session per week of each group and individual speech-language therapy and group and individual OT (Parent Ex. B at p. 13).
Additionally, of note, the special education programs and services recommended in the April 2024 CPSE IEP were itinerant services intended to be provided in an "early childhood program selected by parent" (see Parent Ex. B at p. 13). However, early childhood programs are specific to preschool students and pendency does not operate to allow or require a student who is school age to remain in a preschool program (8 NYCRR 200.16[h][3][i]; see 8 NYCRR 200.5[m]). Accordingly, it would not be expected for the services to continue to be provided in an early childhood program selected by the parent. Once a student becomes school age, the student is entitled to attend the public schools in the district at no cost (Educ. Law § 3202[1]) and the pendency provision does not require the district to continue the student in a program selected by the parent or deprive the student of a free education as a school-aged student (see Application of the Dep't of Educ., Appeal No. 20-163 [finding a notation in an IEP that itinerant services were to be provided in an early childhood program was not part of the student's educational program for purposes of pendency and the district was required to implement the itinerant services in a location determined by the district).
Accordingly, based on the above, while the parent is correct that the district funded AOSNY to implement the student's April 2024 CPSE IEP, the recommendation for an early childhood program selected by the parent, as made in the April 2024 IEP, was no longer available after the student aged out of preschool services and the IHO erred in directing the student's placement at AOSNY during the pendency of this proceeding.
- Unilateral Placement
I next turn to the merits of the parties' dispute regarding the appropriateness of the parent's unilateral placement of the student at AOSNY for the 2024-25 school year.
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
Although not in dispute on appeal, a brief discussion of the student's needs provides context to resolve the issue of whether AOSNY was an appropriate unilateral placement for the student for the 2024-25 school year. As noted above, the student's IEP for the 2024-25 school year was developed on June 26, 2024 (Parent Ex. L at p. 20). The student subsequently attended a summer program at AOSNY for July and August 2024, as recommended by the CPSE (Parent Ex. B at p. 1). The student's AOSNY providers completed progress reports at the end of the summer session and developed a learning plan for the student moving forward (Parent Exs. H; J). Thus, the evidence in the hearing record that best describes the student's needs at the beginning of the 2024-25 school year are the AOSNY educational, speech-language therapy, and OT progress reports dated August 15, 2024 (summer progress reports) and the student's AOSNY learning plan dated August 19, 2024 (learning plan) (id.).
According to the August 2024 learning plan, the student presented with auditory processing difficulties as well as cognitive, social/emotional, fine motor, and language delays (Parent Ex. H at p. 1). In addition, the student's attending and focusing skills were "weak" and the student exhibited difficulty with self-regulation, problem solving, and perseverance (id.). The August 2024 learning plan indicated that evaluative was data taken on the student and that he "ha[d] not met expected milestones [for his age as] determined by referencing [the] Brigance, CTOPP- 2, and informed clinical opinion" (id. at pp. 1; 3-4).[4] The learning plan also stated that the "[student] ha[d] not met expected milestones at 60 months of age determined by referencing of Transdisciplinary Play Based Assessment (TBPA2), Fisher's Auditory [Problems] Checklist and informed clinical opinion" (id. at p. 3). Lastly, the learning plan stated "[u]sing the PDMS II as a guideline, [the student] present[ed] with visual motor delays" and he had difficulty copying diagonal lines, a square, and a triangle (id. at p. 5).[5] The learning plan indicated "[u]sing the Handwriting without Tears Workbook" the study could copy simple alphabet letters but had difficulty with "K, M, N, and S" (id. at p. 5).
Academically, the AOSNY summer progress reports and the August 2024 learning plan indicated that the student knew most, if not all, of his uppercase and lowercase letters and was learning to write his name (Parent Ex. H at p. 1; J at p. 1). The student scored below average on phonemic awareness skills and was aware of some sounds but had a hard time hearing initial sounds in words (Parent Ex. H at p. 1; see Parent Ex. J at p. 1). The learning plan stated that the student would benefit from a direct multisensory approach (Parent Ex. H at p. 1).
Regarding math skills the August 2024 educational progress report indicated that the student differentiated between opposites such as big/little, opened/closed and empty/full (Parent Ex. J at p. 1). The student rote counted to 10 and counted objects to 10 applying one-to-one correspondence (id.).
In the area of communication, the educational progress report described the student as having a "significant word bank" and reported he spoke using multiple sentences containing five to six words each (Parent Ex. J at p. 2). The student's word clarity was described as "good" but the report noted he required reminders and prompts to communicate his needs and wants (id.). According to the progress report, the student had a hard time maintaining a conversational exchange and he tended to "go off topic" when someone tried to talk about something he did not bring up (id.). It was reported that the student generally responded to questions in multi-word utterances and spokes in longer utterances when initiating conversation/commenting but lacked correct sentence order and syntax (id. at p. 6).
According to the 2024 learning plan the student was not able to consistently follow two-to-three step unrelated instructions, a 42-month receptive language skill, and he did not understand 13,000 words or answer "what happens if" questions consistently (Parent Ex. H at p. 4). Expressively, the educational report noted that the student did not recite verses, short stories, and songs without aid (id.). The student demonstrated the ability to name colors, a 60-month skill, but could not independently answer questions about a story told to him (id.). The learning plan indicated that the student displayed an inconsistent ability to identify rhyming words and could not create rhymes, a 54-month skill (id.). The plan also indicated that the student relayed experiences but typically excluded salient details and required adult prompting (id.). According to the learning plan, the student's articulation and phonology skills were age appropriate and he demonstrated the ability to produce most consonants accurately in all positions, but exhibited errors with the following sounds: /l/, /s/, /r/, /th/ (id.).
The August 2024 learning plan reported that "[the student] present[ed] with a delayed response time, difficulty with dichotic listening skills, reduced temporal processing skills, as well as challenges with auditory attention and auditory comprehension" (Parent Ex. H at p. 1). According to the August 2024 educational progress report, the student understood concrete concepts that he had previous information about, but demonstrated difficulty with abstract information and could not respond to higher order thinking questions such as predicting, inferencing, and problem solving (J at p. 1). According to the learning plan the student required wait-time to respond to simple 'wh' questions, and could "be very literal," and had difficulty visualizing information (Parent Ex. H at p. 1). The student also displayed "difficulty relating remote events" and in responding to questions about stories read aloud (id.). The student reportedly needed consistent one-on-one support, directions broken down, and encouragement to attempt tasks (Parent Ex. J at p. 1).
The learning plan concluded that the student's auditory processing skills were significantly delayed (Parent Ex. H at p. 4). The learning plan reported that the student did not pay attention (listen) to instruction 50 percent or more of the time, did not listen carefully to directions, needed instructions repeated, said "huh" and "what" at least five or more times per day, and was easily distracted by background sounds (id.). The plan concluded that the student had difficulty with the following auditory processing skills: attention, auditory-visual integration, comprehension, discrimination, identification, performance, recognition, sensitivity, and sequential memory (id.). The learning plan also identified speech-language problems and created goals for the student pertaining to these needs (id.).
Socially the August 2024 educational and speech-language progress reports characterized the student as "sweet," "friendly," and interested in engaging with peers but noted that his "social cues [we]re weak" (Parent Ex. J at p. 1, 5). The student demonstrated poor eye contact and required coaching on how to initiate interactions with peers more appropriately (id. at p. 1). The student's play skills were described as developing, moving from "symbolic, to limited imaginative play" (id.). The student could sustain play in a group with the support of someone helping him be flexible and he was able to participate in two-to-three back and forth exchanges when playing with modeling and prompting support (id. at p. 1).
The OT progress report, dated August 15, 2024, described the student as cooperative, and reported that he transitioned smoothly into therapy sessions (Parent Ex. J at p. 8). The student followed simple directions well, but struggled with multi-step instructions, requiring extended time for challenging exercises (id.). The student was described as having a low arousal level and fluctuating attention (id.). The progress report also indicated that the student exhibited delays in fine motor and visual motor skills, along with poor muscle strength and coordination, with low muscle tone and weakness in his upper extremities (id.). The progress report specifically noted that the student often leaned on the table and slouched due to decreased trunk strength (id.). In addition, the student reportedly displayed hand muscle weakness, loosely grasped markers, and required support to use a more efficient grip (id.). The progress report indicated the student's scissor skills were emerging and he could cut along a straight line with minimal assistance but that his skills still needed "significant improvement" (id.).
According to the OT progress report, the student also displayed difficulty with motor planning and sequencing tasks, needing guidance to complete them (Parent Ex. J at p. 8). The report noted the student had difficulty with balance and coordination due to delayed sensory processing skills (id.). In addition, the report indicated the student showed progress with sensory inputs but remained hesitant about new tactile materials (id.). The student was able to tolerate swings and movements with encouragement, although he still experienced slight gravitational insecurity (id.). The progress report also indicated that the student had significant delays in daily living skills and struggled with tasks such as dressing and undressing (id.). The report noted that the student could use a spoon to feed himself but had trouble holding utensils properly and often became frustrated with messy eating (id.). Overall, the progress report indicated that the student continued to require focused support to improve his upper body strength, fine motor skills, and sensory processing abilities (Parent Exs. J at p. 8; P ¶ 15).
The hearing record also included affidavit testimony, as to the student's needs, presented by the AOSNY director, the student's speech-language pathologist at AOSNY, and the AOSNY supervisor of OT and PT (Parent Exs. M; P; Q).
Regarding specially designed instruction the director testified through sworn affidavit that the student required: a multisensory approach to learning, steps broken down, frequent comprehension checks, repetition, extra wait time, prompts to follow directions, and coaching for weak social cues (Parent Ex. M ¶¶ 13, 14). The director also demonstrated that when presented with a story in a multisensory way, with repetition and comprehension checks and wait time, the student attended to a story (id. ¶ 13). More specifically, the director testified that the student needed reminders at times in order to follow routines and additional prompting and directions broken down when following directions (id. ¶ 14). The director indicated that the student's social cues were weak, and he required coaching in order to initiate and interact appropriately with his peers (id.). The student also demonstrated difficulty with topic maintenance and required prompting to engage in a conversational exchange and had a hard time relating about remote events and required repetition (id.).
Regarding speech-language therapy, the speech-language pathologist indicated in her affidavit that the student's auditory skills were delayed, and the student needed repetition to follow directives including multiple critical elements, functional cues, or temporal/sequential terms (Parent Ex. Q ¶ 7). The speech-language pathologist also testified that the student required models and verbal prompts, redirection, modeling, cueing and prompts to respond to "wh" questions (id. ¶¶ 7-8). The speech-language pathologist also indicated that the student required modeling and cueing to engage in play sessions due to delays in pragmatic and social skills (id. ¶ 8).
Additionally, the OT/PT supervisor testified that the student required visual demonstrations and cues, extended time to complete tasks, ongoing redirection, guidance and cues for hand grasp and motor planning, motivation and encouragement (Parent Ex. P ¶¶ 10-11, 13, 15-16). The OT/PT supervisor indicated that the student required ongoing redirection to tasks secondary to losing focus and lack of motivation to collate tasks especially when motor was challenging (id.¶ 10). The student was also described as requiring cueing for proper grasp patterns and drawing, and guidance for motor planning, sequencing tasks, and navigating his environment (id.¶¶ 11-13).
2.Services Provided by AOSNY
According to the 2024-25 AOSNY program description submitted into evidence, "AOSNY was created to meet the specialized educational and clinical needs of children with hearing loss as well as auditory processing delays" (Parent Ex. N at p. 1). The program description reflected that the teachers and therapists were "trained in the auditory-oral method of facilitating skills" and "how to modify and tailor the curriculum to meet the auditory and linguistic needs of [the] students" (id.). The program description also stated that the currculum was "designed using an auditory/oral approach to build . . . listening and processing skills in a hierarchical approach" (id.). According to the director's sworn testimony, "[the AOSNY] physical building [wa]s designed to address the acoustic needs of students with hearing loss and auditory processing delays so that students who ha[d] auditory processing challenges c[ould] access the sounds properly" (Parent Ex. M ¶ 28; see Parent Ex. N at p. 1). In addition, she reported "the signal noise ratio of [the AOSNY] classrooms [were] specifically designed to benefit students with listening challenges" (Parent Exs. M ¶ 28; see Parent Ex. N at p. 1).
The AOSNY director testified that, at the time of her affidavit in November 2024, the student was enrolled in a full day 12:1+2 special class kindergarten program with all related services and transportation provided by AOSNY for the 2024-25 school year (Parent Ex. M ¶¶10, 11, 16; see Parent Ex. F). According to the director, the student's first attendance date was September 5, 2024 and his expected final day of school was June 24, 2025 (Parent Ex.; M ¶¶34, 38; see Parent Ex. G).
The hearing record included an AOSNY 2024-25 class schedule (Parent Ex. O).[6] According to the schedule, the AOSNY school day consisted of: a 30-minute welcome morning sign-in ("auditory device listening checks, RULER check-in, play"), a 30-minute circle time (morning meeting, calendar, schedule, weather, theme, news, phonemic awareness), a 45-minute literacy session, a 30-minute outside/gym play/gross motor session, a 50-minute thematic/academic lesson (receptive & expressive language skills, science, social studies, auditory, syntax, etc.), a 40-minute lunch and library period, a 30-minute specials period (social skills/sunshine circles, music, STEAM, visual arts, yoga/sensorimotor groups, syntax, auditory groups), a 30-minute session of academic small group centers (math, handwriting, literacy, language, auditory center, art, STEAM, independent work tailored to student's needs/fine motor/sensory), a 10-minute movement/gross motor break, a 40-minute math session, a 20-minute snack/book of the week period (following along with a story-building on literacy and language skills, and a 10-minute afternoon meeting (recap, recall and planning/goodbye song) (id.).
According to the undated provider credentials submitted into evidence by the parent, all the teachers and related service providers who delivered services to the student during the 2024-25 school year were appropriately credentialed (Parent Ex. K at pp. 1-2, 4). The special education teacher who taught the student's 12:1+2 special class for the 2024-25 school year was appropriately certified to teach students with disabilities (birth to grade 2) (Parent Exs. K at p. 2; M ¶18). The student's speech-language therapy provider during the 2024-25 school year was a New York State licensed speech-language pathologist (Parent Ex. M ¶ 20). According to the speech-language pathologist's November 20, 2024 affidavit she provided three 30-minute speech-language therapy sessions to the student weekly during the 2024-25 school year (Parent Ex. Q ¶¶ 3, 5). The OT provider who provided services to the student during the 2024-25 school year was a State certified occupational therapist and was supervised by a physical therapist who provided testimony by affidavit (Parent Exs. K at p. 4; P ¶¶ 4, 8). The occupational therapist provided the student with two 30-minute sessions of OT per week (Parent Ex. P ¶ 8).
The district asserts in its cross-appeal that the parent's documentary evidence regarding the auditory supports provided by AOSNY, including the design of the school building, was vague and the school's learning plan did not explain how the modifications worked or how they helped the student specifically. The district further asserts that, although the AOSNY program description noted the school offered "'auditory groups'" to assist students and an "'auditory group'" was listed on the class schedule, there were no details about the skills covered in the auditory group or how the group met the student's needs. In addition, the district asserts that, although the AOSNY director testified that school staff was trained in the auditory-oral method of facilitating skills, there was no explanation of the method or how it was used with the student. The district contends that there was no evidence presented to show that the "remote mic technology," recommended for the student based on the AOSNY auditory processing screening, was implemented.[7] The district also asserts that the AOSNY progress reports lacked sufficient detail of how the program met the student's needs and that there was no evidence regarding how many sessions of speech-language therapy and OT were provided.
In an answer to the district's cross-appeal, the parent asserts there should be no dispute that she met her burden, especially considering that the program and school placement implemented by the parent were identical to those created and funded by the district for the prior school year and for summer 2024. The parent also asserts that the hearing record included evidence that AOSNY addressed the student's needs, citing to the AOSNY progress notes, learning plan, and three affidavits from people trained to work with similar students. The parent also notes that neither the district nor the IHO had any questions for the parent or the parent's witnesses.
The IHO found that the parent presented sufficient evidence to conclude that the unilateral placement was appropriate to meet the student's individual needs (IHO Decision at p. 4).
The August 2024 progress reports cited by the parent predate the 10-month 2024-25 school year, which started in September 2024. The August 2024 AOSNY learning plan also predates the 10-month 2024-25 school year; however, it includes goals to be worked on for the school year at issue (Parent Exs. H; J). The affidavits cited by the parent were sworn to by the AOSNY providers in November 2024, approximately two-and-a-half months after the school year began (Parent Exs. M; P; Q).
In her affidavit, the director of AOSNY provided a general description of the school, as well as her role as director (Parent Ex. M ¶¶ 5-9). Next, she described the student's needs, which matched those described in the AOSNY August 2024 progress reports and learning plan, with additional information regarding the student's auditory processing gleaned from an October 2024 AOSNY auditory processing screening (Parent Ex. M ¶¶ 12-15; see Parent Ex. I). The AOSNY director then identified the student's service providers and their qualifications, described the school curriculum, and reiterated that the school building was designed to address the acoustic needs of students with hearing loss and auditory processing delays (Parent Ex. M ¶17-22, 24, 27-28). The director explained that AOSNY employed "a one-of-a-kind evidence-based literacy program called Foundations" that was geared toward addressing the specific literacy and processing needs of students with listening challenges (Parent Ex. M ¶ 29; see Parent Ex. N at p. 1). In addition, she explained that the school used the University of Florida Institute (UFLI) curriculum and AOSNY reading specialists customized an Orton-Gillingham based curriculum to meet student needs (Parent Ex. M ¶ 29; Parent Ex. N at p. 1).
In addition to the literacy program described above, AOSNY's program description indicated that the school used "Multisensory Math," characterized as Orton-Gillingham based math instruction, and that the school used "my math," and "Spots for M.A.T.H." programs, which aligned with the Common Core Standards for Mathematics (Parent Ex. N at p. 1). The math program followed a concrete-representational-abstract instructional sequence and used explicit language to make math concepts accessible to AOSNY students (id.). The program description also indicated that the school provided social skills groups, to help students learn how to identify their needs and manage their emotions and behavior; auditory groups, to systematically provide clarification strategies and training through the auditory hierarchy; and syntax groups, to systematically teach students appropriate syntax and morphology (id. at p. 2). According to the program description, "Each student's team work[ed] on their individual expressive and receptive language and auditory goals based on language and auditory hierarchies. These language and auditory skills are incorporated into all daily activities, including lessons, circle-time, small-group instruction, and center/choice time activities" (id.).
The second affidavit referenced by the parent was from the student's AOSNY speech-language pathologist for the 2024-25 school year (Parent Ex. Q). The speech-language pathologist recounted the student's needs and reported that she provided the student with three 30-minute sessions of speech-language therapy per week in school (Parent Ex. O ¶¶ 5-7). The third affidavit was from a physical therapist who served as the AOSNY OT/PT supervisor (Parent Ex. P). The physical therapist described her supervisory duties and noted that she supervised the occupational therapist who provided the student with OT for two 30-minute sessions per week during the 2024-25 school year (Parent Ex. P ¶ 5-8). The OT/PT supervisor described the student's needs (id. ¶¶ 5-15). Both the speech-language pathologist and the OT/PT supervisor cited to the August 2024 progress reports as evidence of the student's progress (Parent Exs. P ¶16; Q ¶ 9).[8] In addition, they both stated that to ensure consistency of goals the teachers and therapists collaborated on an ongoing basis and there was ongoing communication with the student's mother regarding carryover activities (Parent Exs. P ¶17; Q ¶ 10).
The August 2024 AOSNY learning plan included literacy goals for the student to increase phonemic awareness and proficiency in rhyming and sound manipulation; to learn each upper and lowercase letter and corresponding sound with automaticity; to become proficient in the formation of upper and lowercase letters; to master 20-30 sight words; to decode short vowel sounds with common spellings and some regularly spelled one-syllable words; and to develop reading comprehension skills (Parent Ex. H at pp. 1-2). The learning plan also included math goals related to number identification and sequence; counting; understanding addition and subtraction concepts; understanding simple patterns; solving word problems; understanding place value; describing and comparing attributes; identifying and describing shapes as well as analyzing, comparing, sorting, and composing shapes; and classifying objects (id. at p. 3). OT goals targeted the student's motor planning, writing skills, and ability to focus and attend (id. at p. 5). With regard to auditory processing, the learning plan included goals for the student to increase auditory discrimination, sequencing, closure, comprehension, attention, filtering, discourse and inferencing skills (id. at pp. 2-3). The learning plan included additional goals that targeted the student's ability to consistently follow 2-3 step unrelated instructions, answer "how" and "what happens if questions," include salient details when retelling experiences, use tenses and conjunctions correctly, recall a sequence provided auditorily, and create rhyming words (id. at p. 4).
According to the AOSNY director, the student's progress was measured through daily session notes, quarterly progress monitoring, consistent meetings with teachers and support staff, and observation of the student in the classroom (Parent Ex. M ¶ 26). Although no progress reports or daily session notes for the 2024-25 school year were entered into evidence, the AOSNY director reported the student "ha[d] already shown signs of progress and [wa]s benefitting from being placed in [the AOSNY] program"; however, the student had continuing special education needs warranting a continuation of the student's related services and placement, as well as full time transportation to and from school (id. ¶¶ 30, 31). According to the director, the student received all of his services in person, his first attendance date at AOSNY was September 5, 2024, and his attendance was expected to continue through June 24, 2025 (id. ¶38).
The parent testified that, "[t]he well-tailored instruction and learning environment provided by AOSNY was crucial to his ability to make progress in the prior school year and currently. If he were to have any reduction in this support, I would be seriously concerned about him falling further behind" (Parent Ex. R ¶ 8).
Overall, while the parent's presentation of evidence could have been more robust, the hearing record shows that AOSNY understood the student's special education needs, the school and parent believed that the school was supportive of those needs, and AOSNY identified annual goals for the student and delivered specially designed instruction through both a special class and related services. As an example, the hearing record indicates the school used a multisensory curriculum for literacy and math, the August 2024 learning plan included annual goals directed at the student's needs in the areas of academics, speech-language, and physical development, and OT provided sensory integration, and the speech-language pathologist used coaching, visuals, repetition and various other strategies to meet the student's needs (Parent Exs.H; J; M; N at p. 1; P; Q).
C.Equitable Considerations
The parent appeals from the IHO's decision to reduce relief based on equitable considerations, specifically the confusion as to whether the student received 10-month or 12-month services. The district responds requesting that the IHO's reduction be upheld and that any relief also be denied due to the parent's failure to provide the district with notice of the unilateral placement 10 business days prior to the start of the school year.
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).
Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger, 348 F.3d at 523-24; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
Initially, the IHO appears to have made some factual errors in reducing tuition based on the parent's contract with AOSNY. The IHO determined that the parent was billed for the 12-month school year while the student only attended AOSNY for the 2024-25 ten-month school year (see IHO Decision at p. 5). However, it must be noted that for summer 2024, the student was placed at AOSNY by the district pursuant to the April 2024 CPSE IEP (Parent Exs. B; D). As a preschool student with a disability, the student was entitled to continue to receive special education and related services under the CPSE through summer 2024 (see Educ. Law §§ 3202[1]; 4410[1][i]; 8 NYCRR 200.1[mm][2]). This is consistent with the parent's 2024-25 school year contract for the student's enrollment at AOSNY, which provided a tuition amount for the student's classroom placement from September 2024 through June 2025 (Parent Ex. F). Thus, the IHO erred in reducing the parent's tuition award on the basis of the contract between the parent and AOSNY.
However, the district is also correct in its argument as to equitable considerations, as the parent did not provide the district with notice of the unilateral placement and their intention to seek funding from the district until after the start of the 2024-25 school year, submitting it on September 10, 2024, the same date that the parent filed the due process complaint notice in this matter (see Parent Exs. A; C). The hearing record does not include any evidence that the district attempted to resolve the parent's dispute after receiving the September 2024 notice letter. Accordingly, in this instance, the untimely notice warrants a reduction in funding only for the time period during which the parent should have but did not notify the district. Overall, as the student was in school for approximately four days before the notice was sent, with an additional 10 days for the notice period, the hearing record supports a reduction of 14 days out of the 2024-24 school year, assuming a 180-day school year; in short, equitable considerations merit a 7.7 percent reduction in the total cost of tuition. The district is ordered to fund the student's cost of tuition for the 2024-25 school year at AOSNY, in the amount of $106,698.90 (computed as $115,600 less $8,901.20).
VII. Conclusion
Neither party appealed from the IHO's determination that the district failed to offer the student a FAPE for the 2024-24 school year. As determined by the IHO, the parent's unilateral placement of the student at AOSNY was an appropriate placement for the student. However, the IHO erred in reducing relief based on the parent's contract with AOSNY as set forth above. Additionally, equitable considerations warrant a reduction because the parent did not timely notify the district of the parent's intent to unilaterally place the student at AOSNY for the 2024-25 school year. Finally, no further relief would be warranted under pendency as the IHO erred in determining that the district was required to accede to the parent's choice of school for the purpose of implementing the student's preschool programming pursuant pendency.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED
IT IS ORDERED that the IHO's interim decision on pendency, dated November 25, 2024, is modified by vacating any references to AOSNY;
IT IS FURTHER ORDERED that the IHO's decision, dated January 24, 2025, is modified by reversing the portion which reduced the requested relief based on the terms of the parent's contract with AOSNY; and
IT IS FURTHER ORDERED that the district shall fund the student's cost of tuition at AOSNY for the 2024-25 school year, in the amount of $106,698.90.
Footnotes
[1] During the hearing, the attorney for the parent noted that some documentation produced by AOSNY referred to the student's placement as "Strivright Auditory Oral School of New York" (Tr. p. 13; Parent Ex. H at p. 1). The letterhead for a number of documents, including the parent's contract with the school, progress reports, a sample AOSNY class schedule, and the student's learning plan all identify the school as "Strivright," with "Auditory Oral School of NY" written underneath (Parent Exs. F at p. 1; H at p. 1; I at p. 1; J at p. 1; O at p. 1)
[2] 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).
[3] In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (see Ventura de Paulino, 959 F.3d at 532-36).
[4] The hearing record does not identify which Brigance assessment was used. The CTOPP-2 is presumed to refer to the Comprehensive Test of Phonological Processing, Second Edition.
[5] The PDMS II is presumed to refer to the Peabody Developmental Motor Scales, Second Edition.
[6] The schedule includes a notation that "[t]his sample schedule is adjusted per student's needs. Timing is subject to change" (Parent Ex. O).
[7] According to the district's answer and cross-appeal, the parent argued, in her due process complaint notice, that the student required a SEIT provider. The district also asserts that both the April 2024 CPSE IEP and the June 2024 CSE IEP documented the student's need for SEIT services and that AOSNY did not offer any SEIT services. Although the April 2024 CPSE IEP stated that "When peers are playing a game that requires imagination [the student] has difficulty processing the story line and he needs the [SEIT] and classroom teacher to help him understand … " the IEP did not recommend SEIT services nor did the June 2024 CSE IEP (Parent Ex. B at pp. 4, 32 L at pp. 14-15). In fact, the district's April 4, 2024 letter to the parent confirmed that SEIT services were being removed and replaced by a special class in an integrated setting (Parent Ex. D at p. 2) and the June 2024 IEP noted that the parent felt the student made progress in prekindergarten when his program was switched from SEIT services to a smaller classroom (Parent Ex. L at p. 21).
[8] 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]). Accordingly, while the student's progress at AOSNY is a relevant factor to consider, the lack of information as to the student's progress during the 2024-25 school year does not necessarily result in a finding that the program was not appropriate.