Application of a Student with a Disability

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-169

Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education

Appearances:

The Law Office of Elisa Hyman, P.C., attorneys for petitioner, by Elisa Hyman, Esq.

Liz Vladeck, General Counsel, attorneys for respondent, by Jared B. Arader, 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 found that respondent (the district) offered the student a free appropriate public education (FAPE) for the 2022-23 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 student's educational history, the procedural history of the case, and the IHO's decision will not be recited in detail.  Briefly, the student received services through the Early Intervention Program due to delays in speech-language and social development (Parent Ex. I at p. 2).  The student was subsequently found eligible for special education as a preschool student with a disability in July 2019 and in July 2020 the student received a diagnosis of autism spectrum disorder (Parent Exs. C at pp. 8-9; I at pp. 3, 4).  For the 2019-20 and 2020-21 school years, the student was parentally placed in a nonpublic preschool in "a small mixed class with typical peers and children with IEPs, with a teacher and two assistants" (Parent Pendency Ex. A ¶ 21; Parent Exs. C at p. 14; I at p. 3).^[1]  On April 14, 2021, a CSE convened for the student's "Turning Five IEP" and found the student eligible for school-age special education as a student with autism (Parent Ex. C at pp. 8, 10; see Parent Pendency Ex. A ¶ 36).  The April 2021 CSE recommended that the student receive 10 periods per week of integrated co-teaching (ICT) services for both English language arts (ELA) and math, one 30-minute session per week of group speech-language therapy, one 30-minute session per week of individual speech-language therapy, two 30-minute sessions per week of individual occupational therapy (OT), and one 30-minute session per week of group counseling (Parent Pendency Ex. A ¶ 41; Parent Exs. C at p. 10; I at p. 3).  The CSE also recommended four 60-minute sessions per year of parent counseling and training for the parents (Parent Ex. I at p. 3).  The parents disagreed with the CSE's recommendations and, rather than sending the student to the district school for the 2021-22 school year, enrolled the student in a 20:1+2 early childhood class at a nonpublic school where she received 1:1, push-in special education services (Parent Ex KK ¶¶ 32-43).

A CSE convened on May 18, 2022 and, after determining that the student was eligible for special education services as a student with autism, developed an IEP with an implementation date of September 1, 2022 (see Dist. Exs. 2; 3 at p. 1).  The May 2022 CSE recommended that the student receive ICT services in all core academic classes for a total of 20 periods per week, as well as related services of: one 30-minute-session per week of individual counseling services, one 30-minute session per week of group counseling services, two 30-minute sessions per week of individual OT, one 30-minute session per week of individual speech-language therapy, and one 30 minute session of group speech-language therapy (Dist. Exs. 2 at pp. 23-24; 15 at p. 2).  The May 2022 CSE also recommended parent counseling and training for one 30-minute session to be held quarterly (Dist. Ex. 2 at p. 24). 

By prior written notice dated June 10, 2022, the district informed the parent of the May 2022 CSE's recommendations (Dist. Ex. 3 at pp. 1-3).  According to the prior written notice, the May 2022 CSE felt that ICT services would meet the student's needs, while allowing her to remain in the least restrictive environment (LRE) with positive role models, as well as "with the support of a special education teacher full time in class" (id. at p. 2).  By a school location letter dated June 10, 2022, the district informed the parent of the assigned public school site for the student for the 2022-23 school year (id. at p. 5).    

The parent entered into an agreement dated July 1, 2022 with Special Edge Support (Special Edge) for the provision of "[s]pecial [e]ducation [t]eacher [s]ervices," or "SEIT/SETSS services at enhanced market rates" to the student from July 1, 2022 through June 30, 2023 (Parent Ex. R at pp. 4-5).^[2]  The agreement indicated that Special Edge would invoice the district at the agency's "[p]endency [r]ate" in the event the district was ordered or agreed to provide services under pendency (id. at p. 5).

On or around August 26, 2022, the parent filed a due process complaint notice alleging the district failed to offer the student a FAPE for the 2019-20, 2020-21, and 2021-22 school years (Parent Ex. C at p. 4).  In a decision dated May 10, 2023, an IHO found the district denied the student a FAPE for the school years at issue and ordered tuition reimbursement for the parent's unilateral placements, compensatory services, and independent educational evaluations (IEEs) (id. at pp. 34-36).  The IHO also ordered reimbursement for an independent psychological evaluation and for private health insurance costs borne by the parent to secure applied behavior analysis (ABA) services (id. at pp. 34-35).

A. Due Process Complaint Notice

In a due process complaint notice dated May 23, 2023, the parent, through her attorney, alleged that the district denied the student a FAPE for the 2022-23 school year, and the parent asserted numerous contentions in support of her position (Dist. Ex. 1).  The parent requested that an IHO find that the district denied the student a FAPE "during each [school year] at issue," and that the district be ordered to fund or provide compensatory education, including compensatory education for a failure to implement pendency services (id. at p. 11).  The parent indicated that an award of compensatory education "should and/or may include a bank of 1:1 instruction and related services, including speech and OT, as an alternative" (id.).  The parent also asked that the district be ordered to "fund an increase in 1:1 instruction and related services, as well as home-based services" (id. at p. 12).  The parent asked that the district be ordered to reimburse or fund the costs of private school tuition, as well as transportation, evaluations, and any services the parent may have unilaterally obtained, if necessary (id.). 

B. Impartial Hearing Officer Decision

An IHO was appointed by the Office of Administrative Trials and Hearings (OATH), and after four preliminary appearances between June 26, 2023 and September 20, 2023 (see June 26, 2023 Tr. pp. 1-29; Tr. pp. 1-128),^[3] the parties convened before the IHO for a pendency hearing on October 5, 2023 (Tr. pp. 129-96). 

The IHO issued an interim order on pendency dated November 1, 2023 (Interim Decision).  The IHO found that an interim pendency order from a prior due process proceeding regarding the student served as the basis for pendency in this matter, as it was an "interim agreement between the parties which established the [s]tudent's pendency program, as set forth in the July 7, 2020 IEP" (id. at p. 8; see Parent Ex. D; see also Parent Pendency Ex. B).  During the pendency of the proceedings, the IHO ordered the district to provide 10 hours per week of 1:1 SEIT services, two 30-minute sessions per week of 1:1 speech-language therapy, one 30-minute session per week of 2:1 speech-language therapy, and three 30-minute sessions per week of 1:1 OT for a 10-month period (id. at p. 9).  The IHO further ordered the district to provide summer services consisting of three hours per week of 1:1 SEIT services, and two 30-minute sessions per week of 1:1 OT (id.). 

After additional status conferences over the course of three appearances between October 30, 2023 and December 13, 2023 (Tr. pp. 197-303), the parties appeared before the IHO for an impartial hearing on the merits spanning 10 dates between February 14, 2024 and June 20, 2024 (Tr. pp. 304-1628). 

During the hearing, the IHO requested that the parent submit a proposed order to clarify the parent's "actual claims for relief" (Tr. pp. 1489-91; IHO Exs. II; III).  The parent indicated that she was seeking compensatory pendency services from a prior impartial hearing, spanning a time period of July 1, 2022 until May 10, 2023 (IHO Ex. III at p. 1).  The parent also sought compensatory pendency services for unimplemented pendency services related to this matter, spanning a time period from May 22, 2023 until June 30, 2023, as well as another bank of compensatory hours spanning from July 1, 2023 until June 30, 2024 (id. at pp. 1-2).  Additionally, the parent sought compensatory services for 1,050 hours of ABA services (representing 25 hours per week) to be used at home or in school, one hour per week of BCBA supervision, and one hour per week of parent training with a BCBA (IHO Ex. III at p. 2).  Finally, the parent sought a finding that the district violated Section 504 of the Rehabilitation Act (id. at p. 3).

In a final decision dated February 13, 2025, the IHO found that the district met its burden in establishing that it offered a FAPE to the student for the 2022-23 school year (IHO Decision).  The IHO found that the May 2022 IEP was appropriate to confer an educational benefit to the student in the LRE (id. at pp. 21, 26).  The IHO credited the school psychologist's testimony, including her testimony that the May 2022 IEP appropriately described the student, that an ICT class would be the LRE and provide the student with individualized support, that the student's receipt of SEIT services had resulted in progress, and that the related services were recommended to address the student's need for in school support (id. at pp. 21, 27-28). The IHO also credited the school psychologist's testimony that the May 2022 CSE had no information that the student had behavioral concerns, but the IHO noted that the management needs in the May 2022 IEP included sufficient strategies to help keep the student focused and regulated (id. at p. 30).  With respect to toileting concerns, the IHO found that the May 2022 CSE had very limited information regarding the nature and extent of the student's toileting needs at the time of the CSE meeting (id. at p. 31).  The IHO found that, even if the student needed assistance with toileting, a paraprofessional "could [have] easily be[en] added" to the May 2022 IEP at any time during the relevant school year, if necessary (id. at pp. 31-32).  The IHO also found that there was insufficient evidence in the hearing record of substantial regression by the student that would justify a need for 12-month programming for the student (id. at p. 29). 

The IHO also found that the goals in the May 2022 IEP were appropriate, addressed the student's areas of need, and that each goal had an explanation as to how it would be reached and how progress would be measured (IHO Decision at pp. 24-25).  The IHO found that the parent's concern that the student was "skipping kindergarten" due to a district policy of enrolling students in grade levels based on their age and date of birth, was without merit (id. at pp. 25-26).  The IHO further found that the May 2022 CSE's decision to create "goals that were considered kindergarten oriented [was] a testament to [the CSE's] ability to individualize [the s]tudent's goals based upon [the student's] specific needs" (id. at p. 26).  The IHO additionally found that the district could have implemented the May 2022 IEP, as the IHO credited the district teacher's testimony that a first grade ICT class was available, and that the district school had sufficient staff to implement the student's recommended related services (id. at p. 32).  

The IHO also found that the May 2022 CSE met its procedural requirements under the IDEA, and the parent was afforded the opportunity to participate in the May 2022 CSE meeting (IHO Decision at pp. 21-22).  The IHO noted that there was no indication in the May 2022 IEP that the parent raised concerns regarding the recommendations of an ICT class placement, counseling, OT, speech-language therapy, or parent counseling and training (id. at p. 22).  The IHO also found that the May 2022 CSE had sufficient evaluative information to develop an appropriate program for the student (id. at pp. 22-24). 

With respect to the parent's claims under Section 504, the IHO found that, as the district offered the student a FAPE for the 2022-23 school year, the parent's claims were without merit (IHO Decision at pp. 33-35).  With respect to the parent's request for compensatory pendency services for unimplemented pendency, the IHO declined to consider the parent's request (id. at p. 35).  The IHO found the claim to be premature, as the district still had the opportunity to provide pendency services until the matter came to a final decision (id.).  The IHO also found that there was no evidence to support the request, as the interim pendency order in this matter was never offered into evidence during the impartial hearing, and, as such, the request was denied, but the IHO noted that the parent had the ability to file a due process complaint notice in the future to raise this claim (id.). 

With respect to the parent's request for compensatory pendency services from a prior impartial proceeding, covering the time period from July 1, 2022 until May 10, 2023, the IHO denied the parent's request for compensatory pendency services for July and August 2022 (IHO Decision at pp. 35-36, 39).  The IHO noted the student should have received three hours per week of individual SEIT services for a period of six weeks and that evidence in the hearing record indicated that during summer 2022 the student received 10 hours of SEIT services per week at preschool (id. at p. 39).  With respect to summer services for OT, the IHO found the student should have received one hour per week of individual OT for six weeks and, as there was no evidence in the hearing record that the student received this, the IHO awarded the student six hours of compensatory OT services (id. at pp. 40, 41).  With respect to the parent's request for compensatory services for the 10-month portion of the school year, which included requests from September 7, 2022 to May 10, 2023 for 10 hours per week of individual SEIT services, one hour per week of individual speech-language therapy, 30-minutes per week of group speech-language therapy, and 90-minutes per week of individual OT, the IHO denied the parent's request for SEIT services, as evidence and testimony in the hearing record indicated that the student had received 10 hours per week of SEIT services during that time period (id.).  With respect to speech-language therapy and OT, the IHO awarded compensatory services for the amount requested, as there was no evidence in the record to show that the student received the related services (id. at pp. 40-42).  The IHO ordered that all of the compensatory pendency services were to be used by the student within three years of the date of the order, or the services would expire (id. at p. 42). 

Finally, the IHO indicated that she had reviewed the parties' remaining contentions and found them to be either unnecessary to the decision, to be without merit, to be beyond her jurisdiction, or to be without a sufficient basis in the record to warrant a finding and award of relief (IHO Decision at pp. 40-41).  The IHO thereby denied any relief not discussed in the decision and dismissed any remining claims by the parent (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding that the district met its burden in establishing that it offered a FAPE to the student for the 2022-23 school year.  The parent, through her attorney, makes several arguments in support of her position, that broadly revolve around allegations regarding:  the inappropriateness of the recommendations of the May 2022 IEP; the lack of parent participation in the decision making process; predetermination by the May 2022 CSE; procedural deficiencies of the May 2022 IEP; the inability of the assigned school site to implement the recommendations in the May 2022 IEP; and procedural misconduct by the IHO during the impartial hearing.  The parent also asks that additional evidence be accepted and considered on appeal.  The parent requests that the IHO decision be reversed and a finding be entered that the district did not offer a FAPE to the student; that an additional award of compensatory education (inclusive of pendency violations) be issued; and that the parent be reimbursed $1,500. 

In an answer, the district contends that the IHO correctly determined that the district offered the student a FAPE for the 2022-23 school year.  Among other arguments, the district contends that the May 2022 CSE had adequate evaluative information before it, and there is nothing in the record to suggest that the May 2022 CSE required additional information in order to make an informed decision.  With respect to the parent's contention related to the composition of the May 2022 CSE, the district contends that the school psychologist was knowledgeable and qualified. The district further contends that the school psychologist did not provide retrospective testimony, and that neither of the district witnesses' testimony contradicted the IHO's finding that a 20-hour per week ICT class was a "full time ICT program."  The district further contends that the May 2022 CSE did not engage in predetermination, and that the Office of State Review lacks jurisdiction over the parent's section 504 claim.  The district asks that the parent's appeal be dismissed in its entirety.^[4]

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]

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

VI. Discussion

A. Preliminary Matters

1. Scope of Review

Initially, the scope of the parent's appeal is limited to those issues explicitly raised within the request for review.  As a general matter, it has long been held that a memorandum of law is not a substitute for a pleading (see 8 NYCRR 279.4, 279.6; see also Davis v. Carranza, 2021 WL 964820, at *11 [S.D.N.Y. Mar. 15, 2021]; Application of a Student with a Disability, Appeal No. 19-021; Application of the Dep't of Educ., Appeal No. 12-131).  Thus, any issues not raised in the request for review have been deemed abandoned and any arguments included solely within the memorandum of law have not been properly raised and will not be considered herein.  Accordingly, the parent did not properly raise the allegations that a reduction in the student's speech-language therapy denied the student a FAPE, and likewise did not properly raise that the IHO had an unwaivable conflict of interest in the matter, and, as such, these contentions will not be further reviewed (see 34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]).

Additionally, with respect to the parent's contentions on appeal regarding section 504, courts have recognized that the Education Law makes no provision for State-level administrative review of IHO decisions with regard to section 504 (see A.M. v. New York City Dep't of Educ., 840 F. Supp. 2d 660, 672 & n.17 [E.D.N.Y. 2012] [noting that "[u]nder New York State education law, the SRO's jurisdiction is limited to matters arising under the IDEA or its state counterpart"], aff'd, 513 Fed. App'x 95 [2d Cir. 2013]; see alsoF.C. v. New York City Dep't of Educ., 2016 WL 8716232, at *11 [S.D.N.Y. Aug. 5, 2016]).  Therefore, as an SRO lacks jurisdiction to review any portion of the parent's claims regarding section 504, such claims will not be further addressed. 

Finally, to the extent that the parent contends that the district's systemic policies resulted in the denial of a FAPE to the student, generally, "systemic violations [are] to be addressed by the federal courts," as opposed to "technical questions of how to define and treat individual students' learning disabilities, which are best addressed by administrators" (Levine v. Greece Cent. Sch. Dist., 2009 WL 261470, at *9 [W.D.N.Y. Feb. 4, 2009][noting that the Second Circuit has "consistently distinguished systemic violations to be addressed by the federal courts, from technical questions of how to define and treat individual students' learning disabilities, which are best addressed by administrators"] aff'd, 353 Fed. App'x 461 [2d Cir. Nov. 12, 2009]; see also Application of a Student with a Disability, Appeal No. 11-091).  Neither the IHO, nor I for that matter, have plenary authority to consider and make determinations  as to issues related to  district implementation policies and processes that affect all students.  Thus, these contentions will not be further addressed. 

2. Additional Evidence

Moving to the parent's requests to submit additional evidence into the hearing record, the parent submits a copy of a prior IHO decision involving the student, as well as pieces of published research related to birth dates and identification of students with disabilities.  Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]).  Here, counsel for the parent indicates that the documents that are being offered as additional evidence on appeal were "erroneously excluded" from the hearing record by the IHO, and, therefore, explicitly indicates that the documents offered could have been, and in fact were, offered at the time of the impartial hearing.  Additionally, upon my review of the documents, I find that the prior IHO decision that is being offered as additional evidence, while not admitted during the impartial hearing, was admitted during the pendency hearing, and is in the hearing record for that purpose (see Parent Pendency Ex. B).  The other additional exhibit is not necessary to render a decision, and, as such, will not be considered. 

3. IHO Qualifications

Next, I consider the parent's general contention that the IHO lacked qualification to serve as an IHO.  In her request for review, the parent fails to specify how or why the IHO lacked qualification and does not cite to the hearing record (cf. 8 NYCRR 279.8[c][3]).  Nevertheless, after carefully reviewing the entire transcript of the impartial hearing, which spanned eighteen dates, including the IHO's interaction with the parties and the text of her forty-two page decision, I find no evidence to support the parent's broad contention.  The parent's disagreement with the conclusions reached by the IHO does not provide a basis for arguing the IHO lacks proper qualifications or competence.

4. Credibility

Turning to the parent's claims that the IHO erred by finding the district's witnesses credible, generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076).

The parent argues that the IHO erred in finding the district's school psychologist credible because the school psychologist testified that the May 2022 IEP was partially based on information from two staff members from Bais Yakov when the student had not yet attended Bais Yakov at the time of the May 2022 CSE meeting.  A review of the hearing record indicates that the parent testified that the student's "then-classroom teacher" attended the May 2022 CSE meeting (Parent Ex. KK ¶ 49).  The attendance page from the student's May 2022 IEP identifies by name the student's SEIT provider, classroom teacher, and director of student services who all participated in the May 2022 CSE meeting (Dist. Ex. 2 at p. 32).  In an affidavit, the school psychologist testified that "2 staff from Bais Yakov" and the student's SEIT provider attended the May 2022 CSE meeting (Dist. Ex. 15 ⁋ 8).  The school psychologist further identified the individuals' names, which match the names on the attendance page of the student's May 2022 IEP (compare Dist. Ex. 2 at p. 32, with Dist. Ex. 15 ¶ 8).  While there is evidence in the hearing record that indicates the student did not attend Bais Yakov prior to the May 2022 CSE meeting and therefore the school psychologist's affidavit may have misidentified the individuals as staff of Bais Yakov, I decline to find under the circumstances of this case that such a minor mistake warrants overturning the IHO's credibility findings absent any showing that it made a significant difference or compels a contrary conclusion.  The school psychologist may have misidentified the employer for these individuals, but there is no dispute that the identified individuals participated in the May 2022 CSE meeting and were the student's instructors at the time of the May 2022 IEP.   

Additionally, I am not persuaded by the parent's argument to discredit the school teacher's testimony due to her correcting her testimony regarding the availability of an ICT class during the 2022-23 school year (see Dist. Ex. 14 ⁋ 7; Tr. pp. 518-19, 526, 533-35, 620).  Thus, I do not find a sufficient basis to disturb any of the IHO's findings of credibility as there is no showing of material errors that compel a contrary conclusion.   

B. May 2022 CSE Process

Before resolving the parties' disputes as to whether the programming recommended by the May 2022 CSE was substantively appropriate, the parent's alleged procedural violations must be addressed. 

1. Informed Consent for Reevaluation

The parent contends that the IHO erred in finding that the district offered the student a FAPE because the 2022 reevaluation conducted by the district was in violation of the IDEA's procedures, namely, that the district failed to establish that it obtained informed consent from the parent and failed to provide the parent with prior written notice concerning the reevaluation.^[6]  The social history update, which appears to be the first assessment conducted as part of the district's reevaluation, stated that "Due process rights were reviewed and a copy of the Procedural Safeguards and the Family Guide to Special Education services were emailed to the mother" (Dist. Ex. 10 at p. 1).  The report further stated that "Consent for this re-evaluation was given" (id.). 

Moreover, in the memorandum of law in support of the request for review, counsel for the parent asserts that "[i]n the spring of 2021, [school psychologist] obtained [the parent's] consent for a reevaluation" (Mem. of Law at p. 6).  Indeed, in reviewing counsel's cited portion of the parent's testimony by affidavit, the parent stated that "[d]uring the 2021-[22] school year, the [district] requested the opportunity to reevaluate [the student] and I[, the parent,] agreed" (Parent Ex. KK ⁋ 47).  Therefore, based on the parent's own testimony, and affirmed by the counsel for the parent in the memorandum of law, the allegation that the district did not obtain informed consent to reevaluate the student is without merit.    

With respect to the parent's contention that there was no prior written notice related to the student's reevaluation, even if it was established that a prior written notice was not sent to the parent regarding the reevaluation, the hearing record shows that the district social worker discussed the reevaluation with the parent before it was completed and there is no indication in the hearing record that such a failure to provide prior written notice interfered with the parent's ability to participate in the development of the student's educational program.^[7]  The district's alleged failure to provide a prior written notice does not rise to the level of a denial of FAPE as this did not impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or cause a deprivation of educational benefits (see 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).

2. CSE Composition

On appeal, the parent contends that the IHO should have found that the CSE "was infirm under the IDEA" as the district representative/school psychologist lacked the qualifications to be a district representative due to her alleged lack of knowledge regarding the size of the recommended ICT class, the district's autism programs, the function of a SEIT, applicable academic standards, positive behavioral supports, and extended-school-year assessment and recommendation.  Further, the parent asserts that there should have been a speech-language therapist and OT provider at the May 2022 CSE meeting.

The IDEA requires a CSE to include the following members: the parents; one regular education teacher of the student (if the student was, or may be, participating in the regular education environment); one special education teacher of the student or, where appropriate, not less than one special education provider of the student; a district representative;^[8] an individual capable of interpreting instructional implications of evaluation results; at the discretion of the parent or district, other persons having knowledge or special expertise regarding the student, "including related services personnel as appropriate"; and if appropriate, the student (20 U.S.C. § 1414[d][1][B]; see 34 CFR 300.321[a]; 8 NYCRR 200.3[a][1]).

Upon review of the hearing record, I find no reason to disturb the IHO's finding that the May 2022 CSE meeting included all required participants, and thus, conformed to the procedural requirements of the IDEA (IHO Decision at p. 21).  Here, the school psychologist testified that she participated in the May 2022 CSE meeting in the roles of school psychologist, district representative, and member able to interpret the instructional implications of the evaluative information before the committee (Tr. p. 677; Dist. Exs. 2 at p. 31; 15 at p. 1).  In addition, the May 2022 IEP indicated that the parent, a district special education teacher, the director of student services, the student's classroom teacher, and the student's SEIT provider participated at the meeting (Dist. Ex. 2 at pp. 31-32).   

While regulations indicate that the district representative must be someone who is "qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district" (8 NYCRR 200.3[a][1][v]; see 20 U.S.C. § 1414[d][1][B][iv]; 34 CFR 300.321[a][4]), I am not persuaded by the parent's contentions that the school psychologist did not satisfy this requirement.  The school psychologist testified that she had worked for the district for 20 years, that she had been a school psychologist on a CSE for 15 years, and that she held certifications in both special education and school psychology (Dist. Ex. 15 at p. 1).  She further explained that she was a special education teacher prior to becoming a school psychologist and that she was certified as a special education teacher (Tr. pp. 670-71).  The school psychologist testified extensively over the course of several appearances, and while she conceded that she did not know by memory certain academic standards or the full continuum of services the district could offer, she also testified that she had resources available to her regarding applicable academic standards, the continuum of services available, and information about tests contained in a psychological evaluation (Tr. pp. 984-86).  

Additionally, with respect to the parent's contentions that the May 2022 CSE was not properly composed because it should have included the student's speech-language and OT providers, the student's related service providers are not members of the CSE that are specifically identified in State regulation.  Rather, the parent was free to invite the student's related service providers as individuals that she deemed to have knowledge or special expertise about the student, and the district would have been required to consider any input they offered during the meeting, had the parent secured their attendance.  Alternatively, the related service providers could have been invited by the district representative had the parent made the request, which there is no indication in the hearing record that she did.  

Accordingly, there is an insufficient basis in the hearing record to support the parent's claims that the district violated the requirements for including the requisite members of the CSE.            

3. Parent Participation/Predetermination

The parent contends on appeal that the IHO should have determined that the district and May 2022 CSE engaged in predetermination, as well as deprived the parent from participating in the development of the May 2022 IEP for the student. 

The IHO found that, with respect to parent participation, the parent's concerns were "noted throughout the [May 2022] IEP," and that this suggested that "an interactive process transpired between the parties" (IHO Decision at pp. 21-22).  The IHO noted that the parent specifically raised concerns regarding the student's need for positive role models, need for help with transitioning from a preferred task to a non-preferred task, and need for better social skills, as well as concerns regarding the student's toileting needs and the potential for the student to become overwhelmed by her environment (id. at p. 22). 

The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. §1415[b][1]).  Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]).  Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see E.H. v. Bd. of Educ., 361 Fed. App'x 156, 160 [2d Cir. 2009]; E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *17 [E.D.N.Y. Aug. 19, 2013] [holding that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"]; DiRocco v. Bd. of Educ., 2013 WL 25959, at *18-*20 [S.D.N.Y. Jan. 2, 2013]; P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] ["[a] professional disagreement is not an IDEA violation"]; Sch. For Language and Commc'n Development v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] [finding that "[m]eaningful participation does not require deferral to parent choice"]).

Regarding predetermination, the consideration of possible recommendations for a student prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting (T.P., 554 F.3d at 253; A.P. 2015 WL 4597545, at *8-*9; see 34 CFR 300.501[b][1], [3]; 8 NYCRR 200.5[d][1], [2]).  The key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP" (T.P., 554 F.3d at 253; see D.D-S., 2011 WL 3919040, at *10-*11; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [E.D.N.Y. 2009], aff'd, 366 Fed. App'x 239 [2d Cir. Feb. 18, 2010]).  Districts may "'prepare reports and come with pre[-]formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions'" (DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18 [S.D.N.Y. Jan. 2, 2013] [alternation in the original], quoting M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 506; [S.D.N.Y. 2008]; see B.K. v. New York City Dep't of Educ., 12 F. Supp. 3d 343, 358-59 [E.D.N.Y. 2014] [holding that "active and meaningful" parent participation undermines a claim of predetermination]).

Based on my review of the May 2022 IEP, and the hearing record as a whole, I find no basis to disturb the IHO's findings regarding parent participation.^[9]  As the IHO noted, the May 2022 IEP included the parent's concerns and comments expressed during the May 2022 CSE meeting (Dist. Ex. 2 at pp. 4, 5, 6, 8, 30).  Specifically, the IEP reflected the parent's report that the student was "on par" academically and her concerns that the student needed positive role models and help with transitioning between tasks (id. at pp. 4-5).  According to the May 2022 IEP, the parent indicated that the student had made "slow" progress with regard to her social/emotional skills and reported that the student could be "self-directed," "rigid," fixated on tasks, and unresponsive (id. at p. 6).  The parent's opinion that the student needed to work on her social skills, cooperative play, and emotional regulation was included in the IEP (id.).  Next, the IEP noted the parent was concerned that the student presented with social anxiety because she worried peers would not want to play with her and would make fun of her (id.).  In addition, the May 2022 IEP included parent reported concerns regarding the student's pragmatic skills, nonverbal communication, difficulty greeting others, recognizing social cues, and making eye contact (id. at p. 5).  It also reflected the parent's report that the student exhibited improvement in her grasp, but that this was inconsistent (id. at p. 8).  The IEP also included parent feedback which indicated the student presented with sensory sensitivity, could be overwhelmed by the environment, could be fixated on sounds, and was easily distracted (id.).  It further indicated that the parent reported the student was hyperactive when overstimulated and needed breaks as a result (id.).  The parent's concerns regarding the student's toileting skills were also recorded in the May 2022 IEP (id.). 

Given the breadth of information included in the May 2022 IEP from the parent, including her comments and concerns related to multiple aspects of the student's development, I do not find a sufficient basis to disturb the IHO's determination that the May 2022 CSE meeting was an interactive process that involved the parent.  Further, while the parent may have disagreed with some of the May 2022 CSE's ultimate recommendations for the student, such disagreement does not constitute a lack of parental participation or predetermination by the district.  In addition, even if the school psychologist pre-wrote some pieces of the May 2022 IEP, this was not impermissible, as long as the parent was afforded active and meaningful participation, and the district had an open mind as to the content of the student's IEP (see T.P., 554 F.3d at 253; B.K., 12 F. Supp. 3d at 358-59; see also D.D-S., 2011 WL 3919040, at *10-*11; R.R., 615 F. Supp. 2d at 294).  The school psychologist testified that she "filled in" specific program recommendations on the May 2022 IEP during the May 2022 CSE meeting (Tr. p. 1242), that the May 2022 CSE explored all concerns of the participants at the meeting, and that the May 2022 CSE collaborated with attendees regarding which goals to include on the IEP, even asking participants if anyone felt that there were additional goals that needed to be targeted (Tr. p. 1444; see also Tr. pp. 902-03, 973-74).

4. Sufficiency of Evaluative Information

Next, I turn to the parent's contention that the May 2022 CSE had insufficient information to develop the IEP because the reevaluation failed to include a variety of assessments and assess the student in all areas of potential need.  The IHO found that the May 2022 CSE had appropriate information that reflected the student's present levels of academic achievement and functional performance, and that the participants at the May 2022 CSE meeting had personal knowledge of the student (IHO Decision at p. 23). 

Regulations require that a district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]).  A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).  Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see S.F., 2011 WL 5419847 at *12 [S.D.N.Y. Nov. 9, 2011]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).  In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]).  A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]).  An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

Here, the May 2022 CSE reviewed and discussed a March 30, 2022 social history update, a March 31, 2022 OT progress report, a March 31, 2022 SEIT report, an April 4, 2022 psychoeducational assessment, a psychoeducational addendum, an April 6, 2022 letter from the student's physician, and a May 5, 2022 speech and language progress report (Dist. Exs. 3 at pp. 1-2; 4; 5; 7; 8; 10; 11; 15 at pp. 1-2). 

In terms of the student's cognitive functioning, the hearing record shows that a district school psychologist conducted a psychoeducational evaluation of the student in April 2022 (Dist. Exs. 4; 5).  Administration of the Stanford-Binet Intelligence Scales - Fifth Edition (SB-5) in April 2022 yielded a nonverbal IQ of 113, which fell in the high average range; a verbal IQ of 91, which fell in the average range; and a full scale IQ of 102, which fell in the average range (Dist. Exs. 4 at pp. 1-2; 5 at p. 1).  The school psychologist indicated that the 22-point discrepancy between the student's verbal and nonverbal IQ scores, suggested she had less difficulty on tasks that required nonverbal reasoning than tasks that required verbal reasoning (Dist. Ex. 4 at p. 2).  The school psychologist noted that the student demonstrated strengths in visualization of meaningful stimuli, visual discrimination, visual processing, spatial ability, and planning ability (id.).

In addition to intelligence testing, the school psychologist assessed the student's academic achievement using the Wechsler Individual Achievement Test, Fourth Edition (Dist. Exs. 4 at p. 3; 5 at p. 1).  According to the school psychologist, the student earned a standard score in the average range on the word reading and alphabet writing fluency subtests, and a high average standard score on the math problem solving subtest (Dist. Ex. 4 at p. 3).  With regard to reading, the school psychologist reported the student was able to identify the letters of the alphabet, letter sounds, and initial consonant digraphs, but had yet to read words (id. at p. 3).  In terms of writing, the school psychologist noted the student's letter formation was legible but large and that she struggled to write within the line/space (id.).  The school psychologist reported that the student made occasional number and letter reversals but that they were not atypical for the student's age (id. at p. 1).  Turning to mathematics, the school psychologist reported the student could rote count, identify numbers and shapes, read picture graphs, demonstrate an understanding of "'more,'" "'less,'" and "'longest'" as well as numerical order, and solve one-step word problems involving addition and subtraction with picture cues (id.). 

It was also indicated that, at the time of the March 2022 SEIT progress report, the student was five years old and repeating preschool in order to improve her play skills (Dist. Exs. 2 at p. 2; 6 at p. 1).  She received 10 hours of SEIT services weekly, as well as speech-language therapy and occupational therapy (id.).

The May 2022 CSE reviewed additional information regarding the student's academic abilities reported in a March 2022 SEIT report (Dist. Ex. 6).  According to the SEIT report the student's reading skills were at a prekindergarten level and she was able to recognize and name letters in her name and demonstrated phonemic awareness by coming up with words that started with a given letter sound, but her ability to identify other letters and rhyming words was inconsistent (Dist. Ex. 6 at p. 1).  The SEIT report indicated that in writing the student had improved her pincer grasp and was able to write her first name legibly, though she sometimes struggled with letter formation and benefitted from tracing (id.).  The student enjoyed coloring and painting, but was often overly critical of her artwork, and she benefitted from her SEIT expressing empathy and encouragement (Dist. Exs. 2 at pp. 3, 5, 8; 6 at p. 1).  The student was able to follow positional directions, and her cutting skills were emerging (Dist. Exs. 2 at p. 3, 7; 6 at p. 1).

In math, the SEIT report noted the student was able to count objects 1-20, demonstrating 1:1 correspondence, add objects 1-5 with minimal support, and enjoyed participating in number-related activities (Dist. Ex. 6 at p. 2).  According to the SEIT report, the student recognized numbers up to 11 when given "visual numerals," but had difficulty identifying numbers 12-19 (id.).  In addition, the student was able to recognize colors and shapes, follow two-step directions, identify parts and a whole, and successfully made a two-step pattern with minimal support (id.).  The SEIT report described the student's learning style, noting that she benefitted from hands-on, experience-based learning and visual aids, modeling, and redirection, and that she required sensory breaks to stay regulated (id.).

In the area of physical development, the SEIT report indicated the student was "very" active and enjoyed physical activities such as climbing, swinging, and riding tricycles (Dist. Ex. 6 at p. 3).  In addition, the report noted the student's mobility, balance, and coordination were on grade level, and she was in overall good health (id.).     

The March 2022 OT progress report provided the May 2022 CSE with additional information regarding the student's motor development (Dist. Ex. 7).  According to the OT progress report, the student was assessed in February 2022 using the Peabody Developmental Motor Scales – Second Edition grasping and visual motor integration subtests (id.).  According to the evaluating occupational therapist, the student scored at the 63rd percentile on the grasping subtest and the 37th percentile on visual-motor integration subtest, resulting in an overall fine motor quotient of 103, which fell at the 58th percentile (id. at p. 1).  In addition, informal observation during therapy sessions, as well as teacher and parent input, were used to evaluate and assess the student's progress (Dist. Exs. 2 at p. 6; 7 at p. 1).

According to the progress report, in OT the student was working on improving her fine motor skills, bilateral coordination, and upper extremity strength as well as her sensory processing to improve her attention in the classroom setting (Dist. Ex. 7 at p. 1).  The progress report noted the student was able to use a pincer grasp when picking up small objects but employed a fisted grasp when fatigued, or when trying to accomplish a task hurriedly; thus, requiring verbal reminders to use a more mature and functional pincer grasp (id.).  The progress report indicated the student employed an emerging tripod grasp when coloring and noted that she was beginning to be able to isolate movement at the wrist and fingers, and move a crayon in an up and down direction (id. at pp. 1-2).  The progress report stated the student was able to accurately copy shapes and connect dots, and that therapy focused on increasing intrinsic hand strength and in-hand manipulation skills (id. at p. 2).  According to the OT progress report, the student showed improvement in activities requiring bilateral coordination, such as stabilizing paper while coloring and cutting with scissors (id.).  She was able to cut accurately along lines and was developing the ability to cut shapes with minimal verbal cues (id.).  The OT progress report noted the student's accuracy decreased with fatigue, and activities such as wheelbarrow walking, playing catch with a weighted ball, and opening and closing pop tubes were used to increase the arm strength needed to successfully engage in bilateral tasks (id.).  The report further noted the student's ability to perform activities of daily living that required bilateral coordination, such as buttoning and zippering her coat, had emerged (id.).

In terms of visual perceptual and visual motor skills, the OT progress report stated the student was able to identify all uppercase letters, and complete puzzles and block designs (Dist. Ex. 7 at p. 2).  The report noted that the student was working on increasing her ability to visually scan a surface from left to right and top to bottom when searching for a picture, such as when playing "ISpy," which also helped to improve the student's figure ground skills (id.).  Activities such as simple mazes, dot-to-dots, and copying block designs, were utilized to develop the student's visual perceptual skills (id.).

According to the OT progress report, the student's ability to maintain attention during circle time had improved, though she occasionally needed verbal cues to do so (Dist. Ex. 7 at p. 2).  The report indicated that, as reported by the parent, the student exhibited difficulty regulating her emotions at home due to overstimulation from auditory and visual stimuli (id.).  In addition the student had difficulty tolerating various tactile activities, such as hair brushing (id.).

Turning to the student's speech-language and communication needs, according to the May 2022 speech-language progress report  the student was receiving speech-language therapy for three 30 minute sessions per week in the classroom, focusing on improving her pragmatic language skills, since there were no concerns regarding her receptive and expressive language skills (Dist. Ex. 8 at p. 1).

The progress report reflected that the student demonstrated scores above average in most areas that were formally assessed by the Clinical Evaluation of Language Fundamentals – Preschool, Second Edition (CELF P-2) (Dist. Ex. 8 at p. 1).  The student exhibited vocabulary skills within normal limits but it was noted that she was unable to understand and express the relationships between some words (id. at pp. 2-3).  The student was able to follow many one and two-step directions with great ease, indicating strong receptive skills (id. at p. 3).

In the area of pragmatic skills, the speech-language progress report indicated the student had shown "significant improvements" in using appropriate communication in social situations (Dist. Ex. 8 at p. 3).  However, according to the report, the student struggled to respond to greetings and often did not respond when her name was called, which could be interpreted as rude, making it difficult to build and maintain friendships (id.).  The student exhibited delays in her nonverbal communication skills, conversational skills, ability to interpret social cues, and her ability to respond to information (id.).

The speech-language progress report characterized the student's intelligibility as "good" but noted she exhibited a frontal lisp affecting the /s/ and /z/ phonemes (Dist. Ex. 8 at p. 3).  Given cues and modeling, the student was able to correct her speech sounds (id.).

Finally, turning to information regarding the student's social, emotional, behavioral, and attention needs, according to the April 2022 psychoeducational evaluation report, the student was evaluated using the Behavior Assessment System for Children -Third Edition (BASC-3) and the Vineland Adaptive Behavior Scales 3 (Dist. Exs. 4 at p. 1; 5 at p. 1).  According to the Vineland-3, based on parent responses, the student's overall adaptive functioning score was 70, which fell in the low range, at the second percentile (Dist. Exs.4 at p. 2; 5 at p. 1).  Specifically, the student's score of 77 in the communication domain fell in the moderately low range at the sixth percentile, her score of 65 in daily living skills fell in the low range at the first percentile, and her score of 70 in the socialization domain fell in the low range at the second percentile (Dist. Exs. id. at pp. 2-3, 5; 5 at p. 1).

Based on the student's teacher's responses on the BASC-3, the student exhibited age appropriate classroom behavior, self-control, and attention (Dist. Exs. 4 at pp. 3-4; 5 at pp. 1-2).  Based on the teacher ratings, all areas measured were noted to be within the age-appropriate range except depression, for which the student scored in the "at risk" range (id.).  However, the parent's responses yielded "at risk" ratings in hyperactivity, aggression, anxiety, somatization, attention problems, withdrawal, adaptability, and externalizing problems; and "clinically significant" ratings in depression, atypicality, social skills, activities of daily living, internalizing problems, behavioral symptoms index, and adaptive skills (Dist. Exs. 4 at pp. 4-5; 5 at pp. 1-2).

The March 31, 2022 SEIT progress report provided additional information regarding the student's social/emotional development and behavior (Dist. Ex. 6).  The SEIT report indicated the student was at times "in her own world" and exhibited difficulty engaging in shared attention (id. at pp. 1, 2).  According to the report, the student had made progress in social development, but it remained a primary area of concern, as she had difficulty interacting with peers and was self-absorbed in her play (id.).  The March 2022 SEIT report stated that the student often engaged in solitary play and struggled with shared attention, requiring SEIT facilitation to interact with peers (id.).  The student had difficulty sharing, taking turns, and working cooperatively with peers (id.).  The report reflected that the student benefitted from coregulation techniques to manage her emotions and social interactions (id.).  The SEIT report also noted that the student was able to negotiate with a peer given adult support, but at times she became overwhelmed, retreating to a "calming center" to read a book (id. at pp. 1, 2-3).  The student was "very distracted" by external visual stimuli, and she required adult redirection (id. at p. 1).  The student responded well to a calm soothing voice, validation, and adult modeling of play and interactions (id.).  At the May 2022 CSE meeting, the parent expressed concerns regarding the student's self-directed behavior, social skills, play skills, and emotional regulation (Dist. Ex. 2 at p. 6).     

The school psychologist testified that the spring 2022 reevaluation was initiated by the district, and she decided what testing and assessments needed to be conducted as part of it (Tr. pp. 678-80).  She confirmed that she conducted the psychoeducational evaluation of the student and that no one else from the district conducted an assessment as part of the reevaluation process (Tr. p. 680).  The school psychologist explained that she determined a psychoeducational evaluation was the only assessment needed for the reevaluation because the district was planning to get progress reports from the student's related service providers and teacher that would provide "a better understanding of [the student's] functioning at school" (Tr. p. 680).  Although State regulations require input from the parent in identifying what additional evaluative data may be needed (8 NYCRR 200.4[b][5][i],[ii]), to the extent that the parent may be asserting a procedural violation due to the school psychologist's  decision to conduct a psychoeducational evaluation as the sole standardized assessment for the student, it would not support a finding that the district denied the student a FAPE unless it impeded the student's right to a FAPE, significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (see 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).

Taking into account the foregoing, the evidence in the hearing record reflects that the May 2022 CSE had information before it related to the student's academic and cognitive needs, as well as information related to the student's needs as they pertained to functioning at her private school, and her overall needs with respect to OT, speech-language development, social/emotional development, attention, and behavior,  Additionally, as the IHO noted in her decision, the school psychologist who conducted the psychoeducational evaluation of the student, the student's parent, the student's teacher and the student's director of student support , as well as her SEIT provider, were all in attendance at the May 2022 CSE meeting, and could likewise provide further information based on their personal knowledge of the student (Dist. Ex. 2 at pp. 31-32). 

While the parent contends that the May 2022 CSE and district failed to conduct a litany of assessments^[10] for the student in anticipation of the May 2022 CSE meeting, "[t]he IDEA does not compel a school district to perform every sort of test that would arguably be helpful before devising an IEP" (Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 373 F. Supp. 2d 292, 299 [S.D.N.Y. 2005]), and the district's failure to conduct these evaluations does not render the IEP legally inadequate, in light of the breadth of information available from the documents, as well as the available perspectives from those in attendance at the CSE meeting (see Phillips v. Banks, 2024 WL 1208954, at *2 [2d Cir. Mar. 21, 2024]). Thus, I find no sufficient basis to disturb the IHO's findings that the May 2022 CSE had sufficient information based on the student's reevaluation and other materials available to it in order to appropriately assess the student in all areas related to her suspected disabilities. 

C. FAPE – May 2022 IEP

1. Special Factors – Interfering Behaviors

Next, the parent contends that the IHO should have found that the district denied the student a FAPE because the May 2022 IEP failed to address the student's behaviors and did not recommend positive behavioral strategies.

Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP.  Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., 361 Fed. App'x 156, 160 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172).  State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider developing a behavioral intervention plan (BIP) for a student that is based upon a functional behavioral assessment (FBA) (8 NYCRR 200.4[d][3][i], 200.22[a]-[b]). 

The district's failure to develop a BIP in conformity with State regulations does not, in and of itself, automatically render the IEP deficient, as the IEP must be closely examined to determine whether it otherwise addressed the student's interfering behaviors (see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 80 [2d Cir. 2014]; F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 6-7 [2d Cir. Jan. 8, 2014]; M.W. v. New York City Dep't of Educ., 725 F.3d 131, 139-41 [2d Cir. 2013]; R.E., 694 F.3d at 190).

As noted above, with regard to the student's behavior, the documents reviewed by the May 2022 CSE showed a discrepancy between the student's classroom teacher's perception of her behavior and the parent's perception of her behavior, with the parent identifying numerous "at risk" and "clinically significant behaviors" not noted by the teacher (compare Dist. Ex. 4 at pp. 3-4, with Dist. Ex. 4 at p. 4; see Dist. Ex. 2 at p. 32).  However, the student's SEIT reported the student had difficulty interacting with peers, a tendency to be self-absorbed, and a propensity to become overwhelmed at times (Dist. Ex. 6).

The May 2022 CSE determined that the student did not need a BIP and did not need strategies, including positive behavioral interventions, supports or other strategies to address the student's  (Dist. Ex. 2 at p. 9).  As noted above, the lack of a BIP does not automatically result in a denial of a FAPE to a student and it must be determined whether the IEP otherwise contains strategies to address the student's behaviors.  The IHO found that the management needs section of the student's IEP provided sufficient details regarding the tools recommended to keep the student focused and regulated including the use of prompting, sensory breaks, adult acknowledgement, and adult redirection (IHO Decision at p. 30).  The IHO also credited the school psychologist's testimony that the school had discretion regarding how to implement the strategies designed to address the student's management needs since they were provided within the classroom setting (id.).  Accordingly, the IHO found that the tools and resources recommended to address the student's management needs were appropriate (id.). 

A review of the management needs section of the May 2022 IEP shows that it described the resources that benefited the student in the classroom (Dist. Ex. 2 at p. 8).  More specifically, with regard to the student's behavior, the IEP indicated the student benefited from adult acknowledgment and encouragement when she was frustrated; hands-on, experience-based activities; visual aids to spark her interest and curiosity, sensory breaks and proprioceptive exercise to calm her; a quiet calming area to go to when she was feeling overwhelmed; being spoken to in a soothing voice; adult redirection; validation; prompting; and adult modeling (id.).  In addition, the May 2022 IEP included an annual goal that targeted the student's ability to identify and verbalize her feelings, to identify triggers of her feelings, to develop coping strategies to address her emotions, and to generalize her coping strategies across settings (id. at p. 19).  The May 2022 CSE also recommended individual and group counseling services for the student to address the student's social and behavior needs as well as OT and speech-language therapy (id. at p. 24).

The district school psychologist, who attended the May 2022 CSE meeting, testified that the strategies detailed in the management needs section of the May 2022 IEP were based on information provided to the CSE and designed to address the student's behavioral needs (Tr. pp. 746-47; Dist. Ex. 15 ¶ 17).  Additionally, the school psychologist testified that when making a decision about whether the student had behaviors that impacted her progress the district looked at whether the student was able to respond to redirection and verbal prompts from teachers and, as she recalled,  the student was able to do so (Tr. p. 1246).  She further testified that the May 2022 CSE looked at whether the student's behavior impacted her overall participation in the program and her academic progress (Tr. p. 1247).  The school psychologist testified that based on the student's SEIT progress report, the May 2022 CSE determined that there were no behavior al concerns that warranted data collection prior to the meeting (Tr. pp. 1239-40, 1252).

Therefore, as the May 2022 CSE discussed and considered the student's behavioral needs, and addressed the student's behavioral needs through the strategies identified in the management needs section of the May 2022 IEP, the development of a behavior goal, and the recommendation for counseling services, I find no sufficient basis to disturb the IHO's finding in this regard.   

2. Annual Goals

The parent contends that the IHO should have found that the goals in the May 2022 IEP were insufficient because they were vague, did not contain benchmarks, failed to adequately address the student's academic skills and areas of functional delays, and were not aligned with kindergarten or first grade standards.

The IHO found that the goals in the May 2022 IEP were appropriate (IHO Decision at pp. 24-26).  The IHO found that the testimony of the school psychologist indicated that the student was assessed in order to see if the student had age-appropriate skills, and that the May 2022 CSE took into consideration that the student had repeated a preschool program and did not attend kindergarten (id. at p. 24).  The IHO noted the school psychologist's testimony that some of the goals recommended for the student were considered "kindergarten goals," but that the goals were based upon what the May 2022 CSE believed the student needed in order to "move forward," and that the May 2022 IEP was prepared considering the student's attendance in first grade (id. at p. 25).  The IHO further found that each goal in the May 2022 IEP detailed how it would be implemented, and included a corresponding method as to how it would be measured (id.). 

An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 CFR 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]).  Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 CFR 300.320[a][3]).

Here, the student's May 2022 IEP included 16 annual goals to address her needs in the areas of reading, writing, math, following directions, attention, communication, social skills, sensory processing, and speech (Dist. Ex. 2 at pp. 10-22).  The school psychologist testified that the student's goals were developed based on what the CSE determined at the time was needed by the student to move forward in her academics (Tr. pp. 915-16).

A review of the goals shows that to address the student's needs in reading, the CSE recommended goals that targeted her ability to identify all capital and lower case letters and their corresponding sounds, identify high frequency kindergarten-level sight words, and read CVC words (Dist. Ex. 2 at pp. 10-12).  To address her needs in writing, the CSE recommended goals that targeted the student's ability to identify and write her full name with correct capitalization; write a narrative, opinion, or informational piece by creating a representational illustration and a sentence to go with the illustration; improve her fine motor skills by using appropriate tripod grasp when writing; and write letters/numbers/words on paper while holding paper down with her other hand (id. at pp. 13, 20).  In math, the student's goals were to count forward and backward to 20 by ones, when provided with a number line, to solve addition and subtraction word problems, and add and subtract within 5 by using objects or drawings to represent the problem (id. at pp. 14, 16).  To address her difficulty with attention and following directions, the student's goals were to initiate tasks, follow directions across the curriculum, and sustain attention when engaging in tasks across the curriculum (id. at pp. 15-16).  To address her needs in social/emotional skills the CSE recommended goals that targeted the student's ability to identify and verbalize her feelings; identify triggers of her feelings of frustration, anger, and/or feeling overwhelmed; develop coping strategies to address her emotions; and generalize her coping strategies across settings (id. at p. 19).  To address her communication skills, the student's goals were to demonstrate turn taking skills, maintain eye contact through verbal exchanges, and attend to "speaker/listener responsibilities" during verbal exchanges (id. at p. 18).  To address her sensory processing needs, the student's goals were to process and modulate auditory and visual sensory information from the environment effectively to become more task oriented, and to work with various textures and scents while participating in educational activities (id. at p. 21).  Finally, to address her speech intelligibility, the CSE recommended a goal that focused on the student's ability to demonstrate appropriate placement of her tongue when attempting to produce the /s/ and /z/ phonemes (id. at p. 22).

Additionally, despite the parent's contentions otherwise, the May 2022 CSE was not required to create short-term instructional objectives or benchmarks for the student, as the student was not deemed eligible for the State alternate assessment program, and she was not a preschool student with a disability (see 8 NYCRR 200.4[d][2][iv]; see 20 U.S.C. §1414[d][1][A][i][I][cc]; 34 CFR 300.320[a][2][ii])..

In light of the foregoing, I find that the student's goals were specific, clear, and included all required components.  All of the student's goals included criteria to measure whether the goal was achieved; methods for how the student's progress would be measured including class activities, observations, and performance assessment tasks; and a schedule for when progress would be measured.  Therefore, I find no sufficient basis to disturb the IHO's findings in this regard.

3. Integrated Co-Teaching

The parent contends that the IHO erred in finding that the district offered the student a FAPE because the IHO improperly relied on retrospective testimony by the school psychologist that the May 2022 IEP recommended a "full-time ICT program," while the May 2022 IEP actually contained a recommendation for an ICT class placement for all core academic classes, which the parent equates to 20 hours a week.  The parent additionally contends that the recommendation for a "part-time" ICT class was not substantively appropriate, given the student's prior educational program that included 10 hours of individual SEIT services, as well as individual ABA services, as the ICT class did not provide a comparable ratio or quality of instruction.  The parent contends that the IHO should have found that the district "did not meet its burden to establish it meaningfully considered any 1:1 instruction or ABA" for the student.   

State regulation defines ICT services as the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students and states that the maximum number of students with disabilities receiving ICT services in a class shall be determined in accordance with the students' individual needs as recommended on their IEPs, provided that the number of students with disabilities in such classes shall not exceed 12 students and that the school personnel assigned to each class shall minimally include a special education teacher and a general education teacher (8 NYCRR 200.6[g]).

The hearing record shows that in addition to the 20 periods per week in an ICT class, the May 2022 CSE recommended the student receive related services of counseling, OT, and speech-language therapy, for a total of three hours per week of individual and small-group related services (Dist. Ex. 2 at p. 24).  According to the May 2022 IEP, the CSE considered and rejected the student's placement in general education with SETSS and related services because the student needed the support of a special education teacher; and considered and rejected placement in a 12:1 or 12:1+1 special class because they were too restrictive and minimized the student's opportunities to engage with and learn from "positive role models" (id. at pp. 30-31).

The school psychologist testified that the decision to recommend placing the student in an ICT class was based on her progress and needs at the time (Tr. pp. 987-88).  In addition, the school psychologist noted that the ICT placement was recommended because the student benefitted from her SEIT services, which indicated that she could make progress "under that dynamic" (Tr. p. 988).  The school psychologist testified that in the ICT class, the student would have had "full time" access to the special education teacher (Tr. p. 990).  The school psychologist testified that the recommendation of 20 periods per week of ICT was based on the time spent in core academic subjects, and did not include "specials, like art, music, gym, dance", which were provided at each school's discretion, and were "based on scheduling" (Tr. pp. 990-91).  Further, the school psychologist explained that the ICT class was the "least restrictive environment" for the student to gain access to the general education curriculum and receive the "full time" support of both a general education and a special education teacher during school hours (Tr. p. 1439). 

The parent testified that at the time of the CSE meeting she believed that the student needed "full day" one-to-one support (Tr. pp. 1162-63).  In addition, the special education teacher who was the student's SEIT provider for the 2021-22 and 2022-23 school year testified that at the time of the May 2022 CSE meeting, it was her opinion that the student would not have been able to manage a large ICT or general education setting, and that she continued to need one-to-one services using "strategies like ABA and Floortime" and a small, general education class (Parent Ex. JJ¶ 58).  She further testified that the student continued to struggle with appropriate peer interactions, socialization, executive function, emotional regulation, toileting, and feeding during the 2022-23 school year, which interfered with her progress (id.).  The SEIT provider testified her experience with the student during the 2022-23 school year underscored her opinion that the May 2022 CSE's recommendation for ICT services would have been "disastrous;" however the experience she referenced postdated the CSE meeting (id.).

Here, the hearing record shows that at the time of the May 2022 CSE meeting the student was attending a 20:1+2 general education preschool class where she received SEIT services for 10 hours per week.  While the SEIT noted the student had difficulty with peer interactions and occasionally became overwhelmed, there is no evidence in the hearing record that the student had difficulty participating in the general education class when the SEIT was not present.^[11]  To the contrary, the student's general education teacher's responses on the BASC-3 indicated that the student's performance was within the average range for all areas measured except depression, where the teacher's rating placed the student in the "'At Risk'" range.  Moreover, according to the April 2022 psychoeducational evaluation, the classroom teacher reported the student exhibited typical classroom behavior and a level of self-control similar to others the same age; did not act any more aggressive than others the same age; did not avoid social situations and appeared to be capable of developing and maintaining friendships; maintained a level of attention similar or better than that of others the same age; possessed sufficient social skills and generally did not experience debilitating or abnormal social difficulties; generally exhibited strong expressive and receptive communication skills; and displayed a strong ability to seek out and find new information independently (Dist. Ex. 4 at pp. 3-4).  In addition, the student's full-scale IQ was in the average range, and she demonstrated emerging academic skills (Dist Exs. 4 at pp. 2, 3; 6 at pp. 1-2).

Based on the above, the hearing record supports the IHO's conclusion that the CSE's recommendation for ICT services was appropriate given the standardized testing results and information from  the student's private school available to it at the May 2022 CSE meeting, and would also allow the student access to her nondisabled peers in the LRE (see Dist. Ex. 2 at p. 23).^[12] [24-280 modified]  Moreover, once a CSE determines that an appropriate class placement for the student is available within the district, the district is not obligated to consider a more restrictive setting, such as 1:1 instruction (see B.K., 12 F. Supp. 3d at 359 [indicating that "once the CSE determined that a 6:1:1 placement was appropriate for [the student], it was under no obligation to consider more restrictive programs"]; E.F., 2013 WL 4495676, at *15 [explaining that "under the law, once [the district] determined . . . the [LRE] in which [the student] could be educated, it was not obligated to consider a more restrictive environment"]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *7-*8 [S.D.N.Y. Mar. 19, 2013] [finding that "[o]nce the CSE determined that [the public school setting] would be appropriate for the [s]tudent, it had identified the [LRE] that could meet the [s]tudent's needs and did not need to inquire into more restrictive options"]).^[13]    Additionally, the parent's preference for a "smaller class size" illustrates a common predicament: that often what is considered "small" in terms of class size is in the eye of the beholder (M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 335 [E.D.N.Y. 2012] [holding "[t]hat the size of the class in which [the student] was offered a placement was larger than his parents desired does not mean that the placement was not reasonably calculated to provide educational benefits"], aff'd, 725 F.3d 131 [2d Cir. 2013]), but a parents' decision to provide a smaller classroom ratio is not in and of itself conclusive evidence of the question of whether a public placement provides appropriate services to meet a student's needs (see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015]).

Overall, I do not find a sufficient basis to disturb the IHO's finding that the May 2022 CSE's recommendations, inclusive of the placement in an ICT class, were appropriate and offered the student a FAPE for the 2022-23 school year. 

4. Parent Counseling and Training

The parent asserts that the IHO erred because the May 2022 CSE's recommendation for parent counseling and training lacked goals and specificity.  The IHO credited the school psychologist's testimony that the May 2022 CSE's recommendation of parent counseling and training was considered support for the family to communicate with the school team and to learn new strategies that the providers might have been using that the parent could use at home (IHO Decision at p. 28).  The IHO also indicated that the May 2022 IEP did not have any noted concern by the parent regarding the recommendation for parent counseling and training (id. at p. 22). 

State regulations require that an IEP indicate the extent to which parent counseling and training will be provided to parents, when appropriate (8 NYCRR 200.4[d][2][v][b][5]).  State regulations further provide for the provision of parent counseling and training for the purpose of enabling parents of students with autism to perform appropriate follow-up intervention activities at home (8 NYCRR 200.13[d]).  Parent counseling and training is defined as "assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's [IEP]" (8 NYCRR 200.1[kk]; see 34 CFR 300.34[c][8]).  The Second Circuit has consistently held that the failure to include parent counseling and training on an IEP does not usually constitute a denial of a FAPE (see L.O., 822 F.3d at 122-23; M.W., 725 F.3d 131, 141-42; R.E., 694 F.3d at 191; see also A.M., 845 F.3d at 538; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 32 [2d Cir. Mar. 16, 2016]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 39 [2d Cir. Mar. 19, 2015]; but see C.F., 746 F.3d at 80-82).

Contrary to the parent's assertions, State regulation does not require an IEP to include annual goals for parent counseling and training (see 8 NYCRR 200.1[kk], 200.13[d]; see also Application of a Student with a Disability, Appeal No. 00-016).  With respect to the parent's vague assertion of a lack of "specificity," the school psychologist testified that parent counseling and training as recommended in the May 2022 IEP "would [have been] support for the family to kind of touch base with the school team to learn strategies that the providers might be using that the parents [could] carry into the home as well" (Tr. p. 945).  This description is in accord with State regulatory requirements, and, therefore, there is no basis to disturb the IHO's findings regarding parent counseling and training. 

5. 12-Month Services/Extended School Year

The parent contends that the May 2022 CSE's failure to recommend extended school year services for the student constituted a denial of a FAPE.  The IHO found that the hearing record contained insufficient evidence of substantial regression that would justify an extended school year recommendation (IHO Decision at p. 29). 

State regulations provide that students "shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression" (8 NYCRR 200.6[k][1]).  "Substantial regression" is defined as "student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1[aaa], [eee]).  State guidance indicates that "an inordinate period of review" is considered to be a period of eight weeks or more (see "Extended School Year Programs and Services Questions and Answers," at p. 3, Office of Special Educ. [Updated June 2023], available athttps://www.nysed.gov/sites/default/files/programs/special-education/extended-school-year-questions-and-answers-2023.pdf).

Here, according to the school psychologist, there was no data presented at the May 2022 CSE meeting that indicated a risk of regression during times when school was not in session, in any areas, including social/emotional skills, executive functioning, sensory integration, or toileting, and therefore, a 10-month program, rather than a 12-month extended school year, was recommended (Tr. pp. 948-49, 991-92; Dist. Ex. 15 at p. 3).  The school psychologist testified that if there were concerns about the student experiencing potential regression, the supporting documentation was "usually provided by the teacher" (Tr. p. 951).^[14]  However, there is no evidence that information concerning regression was provided to the CSE by a teacher of the student or otherwise.  Further, the school psychologist stated that the CSE's decision to recommend a 10-month school year, rather than a 12-month extended school year, was based on assessment, which showed there was "no indication of delays in [the student's] academic skills" (Tr. p. 952).

The school psychologist testified that she was unaware of a normed assessment to determine 12-month extended school year eligibility (Tr. p. 710).  However, the school psychologist noted that the psychoeducational evaluation of the student that she conducted, reflected a student with a "strong cognitive ability with on grade-level or on age-level skills," indicating that the student did not require 12-month extended school year services (id.).  Upon an independent review of the hearing record, I do not find a sufficient basis to disturb the IHO's finding that there was no showing of substantial regression to warrant a finding by the May 2022 CSE that the student required extended school year services.

6. Grade Level Placement

The parent contends that the May 2022 CSE's recommendations were inappropriate, in part, because it was recommended that the student, after repeating a prekindergarten program, enroll in a first grade class, rather than a kindergarten class.  The IHO found that the parent's concerns regarding the student "skipping" kindergarten and enrolling in first grade were without merit (IHO Decision at pp. 25-26). 

State law authorizes a local board of education "[t]o prescribe the course of study by which the pupils of the schools shall be graded and classified, and to regulate the admission of pupils and their transfer from one class or department to another, as their scholarship shall warrant" (Educ. Law § 1709[3]).  Accordingly, matters relating to determining a student's grade level placement and  promotion from grade to grade are committed to the discretion of the district (see Appeal of A.R., 54 Ed. Dep't Rep., Decision No. 16,665 [2014], available athttp://www.counsel.nysed.gov/Decisions/volume54/d16665;Appeal of Y.R., 51 Ed. Dep't Rep., Decision No. 16,270, available athttp://www.counsel.nysed.gov/Decisions/volume51/d16270;see also Kajoshaj v. New York City Dep't of Educ., 543 Fed. App'x 11, 17 [2d Cir. Oct. 15, 2013]).  

Here, the hearing record lacks a sufficient basis to find that the CSE improperly recommended the student's placement in a first grade class, had she enrolled in the district's proposed school site.  As discussed above, the goals recommended by the May 2022 CSE were appropriate in light of the student's areas of need.  Further, the school psychologist testified by affidavit that the she was aware that the student had repeated a prekindergarten class and had not attended kindergarten, but that the student's levels of performance across all domains indicated that the student would have been able to make meaningful progress in an age-appropriate first grade classroom (Dist. Ex. 15 at p. 4).  The school psychologist further confirmed that the CSE took into consideration the student's lack of kindergarten attendance and that an assessment was conducted to see whether the student had age-appropriate skills in comparison to students entering first grade (Tr. p. 1442).  The school psychologist testified that "as a result of the evaluation" the student had "age-appropriate academic skills" (Tr. pp. 715, 1442). 

In light of the foregoing, as the grade-level of the student is left to the discretion of the local district, and the hearing record shows the May 2022 CSE considered whether the student would be appropriately placed in a first grade class and recommended a placement based on the student's individual needs, I find that there is no sufficient basis to disturb the IHO's finding in this regard. 

7. Toileting Concerns

The parent contends on appeal that the IHO improperly shifted the burden to the parent regarding issues concerning the student's possible toileting needs, when the IHO found that the May 2022 CSE lacked information about that concern, and because it was the district's obligation to conduct a thorough assessment of the student.  The parent further contends that the May 2022 IEP was not appropriate, in part, because of the student's difficulties with toileting.

The hearing record reveals that although some toileting concerns were raised by the parent to the May 2022 CSE, the information before it generally was at times contradictory and, at most, consisted of evidence that the student on occasion continued to experience toileting accidents and  incomplete bathroom hygiene in the preschool setting, but the hearing record lacks evidence that the CSE was aware of toileting needs that had required educational programming to address. The hearing record indicates the district's assessment of the student included questions about the student's ADL skills.  Specifically, the social history update indicates that the student's mother provided information regarding the student’s ADLs in response to the social history interview and that the as part of the psychoeducational evaluation the district administered the Vineland-3 and BASC-3 to the parent, both of which solicit information regarding a student's ADLs (Dist. Ex. 4 at pp. 2-4;  5; 6 at p. 1).  According to the March 2022 social history the parent reported that the student had "accidents from time to time" and required assistance with hygiene skills related to toileting (Dist. Ex. 10 at p. 1).  In addition, the parent responses on the Vineland-3 indicated the student’s ability to perform age appropriate everyday tasks was a relative weakness the parent responses on the BASC-3 indicated the student had difficulty performing simple daily tasks in safe and efficient manner (Dist. Ex. 10 at pp. 2-3, 5). 

None of the progress reports completed by the student's private providers and reviewed by the May 2022 CSE, however, mentioned the student's toileting needs.  The OT progress report stated that the student’s ability to perform ADLS that required bilateral coordination, such as buttoning and zippering her coat, had merged but did not comment on any hygiene-related ADLs (Dist. Ex. 7). In addition, although the SEIT described the student's toileting needs and her attempts to address them in her March 2024 affidavit (Parent Ex. JJ ¶¶ 24-26, 28) she did not include this information in either her March 2021 progress report or session notes for the 2021-22 school year (Dist. Exs. 6, 13).  When questioned during the hearing the SEIT first appeared surprised that the student's toileting needs were not included in her progress report but then stated that her need to address the student's toileting hygeine would "definitely not" be included in her session notes because that was something that was "personal" (Tr. pp. 842-45).  When asked if by excluding this information someone reading her notes would not know what she was working on she testified that "[she] guess[ed] session notes [we]re not very comprehensive" (Tr. p. 846).

The IHO found that the May 2022 CSE had very limited information regarding the nature and extent of the student's toileting needs at the time of the May 2022 CSE meeting (IHO Decision at pp. 30-31).  While the IHO credited the parent's testimony that she raised toileting concerns at the May 2022 CSE meeting, the IHO did not credit the SEIT provider's testimony that she did so (id. at p. 31).  The IHO found that the failure to recommend a paraprofessional for the student's toileting needs did not deprive the student of a FAPE, as the CSE had "no reason to know" that the student would have needed a paraprofessional for toileting purposes and because a paraprofessional was "an option that could [have] easily [been] added" to the student's IEP at any time during the relevant school year (id. at p. 32). 

The parent testified that she discussed the student's toileting concerns at the May 2022 CSE meeting (Tr. pp. 1094, 1117; Parent Ex. KK at pp. 8-9).  Specifically, the May 2022 IEP noted that the mother had concerns regarding the student's ability to use the toilet independently (Dist. Ex. 2 at p. 8).  Additionally, according to the March 2022 social history update and as reflected in the May 2022 IEP, the parent denied that the student had any serious or chronic health issues, but did note some toileting concerns including that the student "had accidents from time to time" and required assistance with hygiene skills related to toileting (Dist. Exs. 2 at p. 8; 10 at p. 1).  The IEP did not include a service or goal to address the student's toileting needs. 

The school psychologist testified that toileting was discussed at the student's May 2022 CSE meeting, but she did not recall specifics (Tr. pp. 992-93, 1471).  The school psychologist stated that she was not aware of a service offered by the district to address the student's toileting needs (Tr. p. 786).  However, in response to questioning by the IHO she also testified that a paraprofessional could be considered for the student if she were unable to follow the bathroom schedule at school, or if she required assistance in the bathroom (Tr. p. 1471). 

The IHO found that the May 2022 CSE had very limited information regarding the nature and extent of the student's toileting needs at the time of the May 2022 CSE meeting (IHO Decision at pp. 30-31).  While the IHO credited the parent's testimony that she raised toileting concerns at the May 2022 CSE meeting, the IHO did not credit the SEIT provider's testimony that she did so (id. at p. 31).  The IHO found that the failure to recommend a paraprofessional for the student's toileting needs did not deprive the student of a FAPE, as the CSE had "no reason to know" that the student would have needed a paraprofessional for toileting purposes and because a paraprofessional was "an option that could [have] easily [been] added" to the student's IEP at any time during the relevant school year (id. at p. 32). 

Based on the foregoing, I decline to find a denial of a FAPE based on the May 2022 IEP's failure to address the student's toileting needs.  The hearing record supports a finding that the information before the May 2022 CSE did not indicate that the student had toileting needs that required educational programming in order for her to progress in the general education curriculum and, accordingly there is no basis in the hearing record to warrant disturbing the IHO's determination that the district's failure to include recommendations in the area of toileting did not raise to the level of denying the student a FAPE. 

D. Implementation/Assigned School

The parent contends that the IHO incorrectly found that the assigned school site for the student for the 2022-23 school year could have implemented the recommendations of the May 2022 IEP because the district school teacher "changed her testimony multiple times" as to whether the recommendations could be implemented in a first grade class and her testimony demonstrated her confusion about what grade level was being discussed.  The parent also contends that it was error for the IHO to find that the school site could have implemented the recommendations because of the school teacher's testimony that the student would receive only 20 periods in an ICT class, and because the district school teacher's testimony regarding recommended related services "lacked a foundation or basis in personal knowledge."  The parent also contends that the school site did not have a kindergarten ICT class.

The IHO found that the district could implement the recommendations of the May 2022 IEP based on the school teacher's testimony, which the IHO found credible (IHO Decision at p. 32).  More specifically, the IHO noted the school teacher's testimony that the school site had a first grade ICT class available for the 2022-23 school year, and that the school site would have been able to provide the student's recommended related services due to the available staff during the 2022-23 school year (id.). 

Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88).  The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]).  However, a district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]).  The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP" (M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. 2015]).  Such challenges must be "tethered" to actual mandates in the student's IEP (see Y.F., 659 Fed. App'x at 5).  Additionally, the Second Circuit indicated that such challenges are only appropriate, if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244).  In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP (see Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]).  Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate (K.F., 2016 WL 3981370, at *13; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016]).

Here, the May 2022 IEP recommended that the student be placed in an ICT class for all core classes for 20 periods per week, as well as that the student receive 180 minutes of related services per week which comprised of counseling services, OT, and speech-language therapy (Dist. Exs. 2 at pp. 23-24; 15 at p. 2).

The Second Circuit has explained that when parents have rejected an offered program and unilaterally placed their child prior to implementation of the student's IEP, "[p]arents are entitled to rely on the IEP for a description of the services that will be provided to their child" (P.K. v. New York City Dep't of Educ., 526 Fed. App'x 135, 141 [2d Cir. May 21, 2013]) and that "'[t]he appropriate inquiry is into the nature of the program actually offered in the written plan,' not a retrospective assessment of how that plan would have been executed" (K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 87 [2d Cir. July 24, 2013], quoting R.E., 694 F.3d at 187).  Accordingly, when a parent brings a claim challenging the district's "choice of school, rather than the IEP itself . . . the appropriate forum for such a claim is 'a later proceeding' to show that the child was denied a free and appropriate public education 'because necessary services included in the IEP were not provided in practice'" (F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 9 [2d Cir. Jan. 8, 2014], quoting R.E., 694 F.3d at 187 n.3).  Therefore, if the student never attends the public schools under the proposed IEP, there can be no denial of a FAPE due to the parent's suspicions that the district will be unable to implement the IEP (R.E., 694 F.3d at 195; see E.H., 2015 WL 2146092, at *3).

All of the parent's claims regarding implementation are based upon testimony about the 2022-23 school year, that was provided after the school year had already ended.  However, it is not disputed by the parties that the student never attended the assigned public school site pursuant to the May 2022 IEP.  Any conclusion that the district would not have implemented the student's IEP or that the assigned public school site could not meet the student's needs would necessarily be based on impermissible speculation, and the district was not obligated to present retrospective evidence at the impartial hearing regarding the execution of the student's programming (R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]; F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 9 [2d Cir. Jan. 8, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 87 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 187 & n.3]), and the proper inquiry into the parent's claims is the nature of the program that was offered in the May 2022 IEP, not a retrospective assessment of the program, as the parent contends here (see K.L., 530 Fed. App'x at 87).  Additionally, it bears noting that the parent testified during the impartial hearing that she did not visit the assigned school site prior to the beginning of the 2022-23 school year, although she did so in June 2023 in anticipation of the 2023-24 school year, after the May 2022 IEP had already been rejected (Tr. pp. 1150-56).   Accordingly, the parents assigned school implementation allegations are unavailing and there is no reason to disturb the IHO's finding that the district did not deny the student a FAPE based on these claims.

E. Enforcement of Pendency Decisions

Lastly, the parent contends that the IHO erroneously denied to provide the student with adequate compensatory education based on alleged pendency violations by the district and seeks additional compensatory education services as a remedy for her claim that the district has failed to provide pendency services to the student under prior orders.

Here, the parent's claims for additional compensatory services due to alleged pendency violations relate to the enforcement of the student's pendency entitlement.  It is well settled that neither IHOs nor SROs have authority to enforce prior decisions rendered by administrative hearing officers (see Educ. Law §§ 4404[1][a]; [2]; see, e.g., A.R. v. New York City Dep't of Educ., 407 F.3d 65, 76, 78 n.13 [2d Cir. 2005] [noting that IHOs do not retain jurisdiction to enforce their orders and that a party who receives a favorable administrative determination may enforce it in court]; A.T. v. New York State Educ. Dep't, 1998 WL 765371, at *7, *9-*10 & n.16 [E.D.N.Y. Aug. 4, 1998] [noting that SROs have no independent "administrative enforcement" power and granting an injunction requiring the district to implement a final SRO decision]).  Accordingly, to the extent that the parent seeks enforcement of both of the prior IHOs' orders on pendency, these requests will not be addressed herein.^[15]   The district is reminded that it is required to comply with its pendency obligations for the duration of a due process proceeding from the time a due process complaint is filed until the completion of the proceeding, including appeals (see M.R. v. Ridley Sch. Dist., 744 F.3d 112, 125 [3d Cir. 2014] [finding that school districts must continue funding a student's pendency placement until final resolution of all IDEA proceedings, including appeals]). 

VII. Conclusion

Based on the foregoing, I find that the hearing record supports the IHO's finding that the May 2022 IEP was reasonably calculated to enable the student to receive educational benefit and the necessary inquiry is at an end (Endrew F., 137 S. Ct. at 1001; Gagliardo, 489 F.3d at 112; Frank G. v. Board of Educ., 459 F.3d 356, 364-65 [2d Cir. 2006]). 

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.

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Footnotes

[1] The hearing record suggests that the student received SEIT and related services from the district during this time; however, due to COVID, not at the frequencies mandated by her IEP (Parent Pendency Ex. A¶¶ 20, 24-28; Parent Ex. I at p. 3).  The student also reportedly began receiving in-home ABA services in or around July 2020 (Parent Ex. I at p. 3).

[2] Counsel for the parent later indicated that the services provided by Special Edge were administered pursuant to a pendency placement (Tr. pp. 219-20), and counsel for the district asserted the same information in an opening statement for the impartial hearing (Tr. p. 480).

[3] The transcript of the initial appearance in this matter dated June 26, 2023 is not consecutively paginated with the remaining transcripts in the hearing record.  Therefore, citations to the June 26, 2023 transcript will be preceded by the date (see June 26, 2023 Tr. pp. 1-29). 

[4] The district also asks that its cross-appeal be sustained, but the district has not cross-appealed this matter and has filed only an answer to the request for review. 

[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] State and federal regulations require that a district provide parents of a student with a disability with prior written notice "a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the student or the provision of a [FAPE] to the student" (34 CFR 300.503[a]; 8 NYCRR 200.1[oo]; 200.5[a][1).  Pursuant to State and federal regulation prior written notice must include a description of the action proposed or refused by the district; an explanation of why the district proposed or refused the action; a description of the other options that the CSE considered and the reasons why those options were rejected; a description of each evaluation procedure, assessment, record, or report the CSE used as a basis for the proposed or refused action; and a description of the other factors relevant to the CSE's proposal or refusal (34 CFR 300.503[b]; 8 NYCRR 200.5[a][3]).

[7] As discussed later in this decision, I find that there is no basis to disturb the IHO's finding that the hearing record demonstrated that the parent had the opportunity to meaningfully participate in the development of the student's May 2022 IEP. 

[8] State regulation provides that the district representative shall serve as the chairperson of the committee (8 NYCRR 200.3[a][1][v]).

[9] Moreover, to the extent the parent broadly alleges that the district provided insufficient notice of the May 2022 CSE meeting, even if there was a procedural failure or defect in the notice, there is no showing that it amounted to a denial of a FAPE, particularly here where the parent attended the May 2022 CSE meeting and had the opportunity to participate in the development of the student's educational program.

[10] The parent alleges that the student's reevaluation should have included, among others, an observation, a speech and language therapy evaluation, an OT evaluation, an observation of the student in her then-current school, an assessment to determine if the student would continue to "need ABA and/or 1:1 instruction and how it impacted her functional, social, emotional, behavioral and academic progress," an assessment of the student's toileting skills, an assessment related to the student's diagnosis of autism, an assessment of the student's executive function skills, an assessment to determine if the student regressed during breaks in instruction, and an assistive technology assessment. 

[11] Additionally, although the SEIT stated in her affidavit that after she left the class another 1:1 ABA provider funded through insurance relieved her and therefore the student had fulltime coverage all day, at the hearing she testified that someone came in after her "sometimes, not always" (Tr. pp. 863-64).

[12] Regarding the parent's contention that the IHO impermissibly relied on retrospective testimony from the district's school psychologist that the May 2022 IEP recommended a "full-time ICT program," I note a district cannot rely on after-the fact testimony in order to "rehabilitate a deficient IEP"; however, testimony that "explains or justifies the services listed in the IEP" is permissible and may be considered (see R.E., 694 F.3d at 186-88; see also E.M. v. New York City Dep't of Educ., 758 F.3d 442, 462 [2d Cir. 2014] [indicating that "[b]y way of example, we explained that 'testimony may be received that explains or justifies the services listed in the IEP,' but the district 'may not introduce testimony that a different teaching method, not mentioned in the IEP, would have been used"] [internal citations omitted]; P.C. v. Rye City Sch. Dist., 232 F. Supp. 3d 394, 416 [S.D.N.Y. 2017] [noting that the "few additional details" about the CSE's recommendations described in testimony did not materially alter the written plan or prevent the parents from making an informed decision]).  Here, the IHO indicated that, based on the testimony of the school psychologist, that the ICT placement would allow the student to have "full time" access to a special education teacher (see IHO Decision at pp. 27-28).  The prior written notice regarding the May 2022 CSE's recommendations explicitly indicated that the ICT class would provide the student with " the support of a special education teacher full time in class" (Dist. Ex. 3 at p. 2 [emphasis added]).  As indicated by the May 2022 IEP, the student was recommended to attend an ICT class in all of her core classes (Dist. Ex. 2 at p. 32).  Thus, the school psychologist's testimony is consistent with the May 2022 CSE's recommendation.

[13] Regarding the parent's preference for ABA services, generally, an IEP is not required to specify the methodologies used with a student and the precise teaching methodologies to be used by a student's teacher are usually a matter to be left to the teacher's discretion—absent evidence that a specific methodology is necessary (Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 [2d Cir. Oct. 29, 2014]; A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 [2d Cir. July 29, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 192-94; M.H., 685 F.3d at 257).  As long as any methodologies referenced in a student's IEP are "appropriate to the [student's] needs," the omission of a particular methodology is not necessarily a procedural violation (R.B., 589 Fed. App'x at 576 [upholding an IEP when there was no evidence that the student "could not make progress with another methodology"], citing 34 CFR 300.39[a][3] and R.E., 694 F.3d at 192-94).  Indeed, a CSE should take care to avoid restricting school district teachers and providers to using only the specific methodologies listed in a student's IEP unless the CSE believes such a restriction is necessary in order to provide the student a FAPE.  However, when the use of a specific methodology is required for a student to receive an educational benefit, the student's IEP should so indicate (see, e.g., R.E., 694 F.3d at 194 [finding an IEP substantively inadequate where there was "clear consensus" that a student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee" of the use of this methodology]).  If the evaluative materials before the CSE recommend a particular methodology, there are no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member (i.e. school psychologist) to rely on a broader approach by leaving the methodological question to the discretion of the teacher implementing the IEP (A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017]).

Here, there is no indication in the hearing record that ABA methodology was required in order for the student to receive an educational benefit, and, as such, it was not error for the May 2022 CSE to not recommend ABA in particular, as a methodology.  

[14] Specifically, she reported that typically ongoing progress monitoring is required to prove regression and not a one time-testing session and if there were regression concerns the supporting documentation was usually provided by the student’s teacher (Tr. pp. 949-51).

[15] To the extent that the IHO in this matter ordered compensatory relief related to unimplemented pendency services under the interim pendency order for the prior administrative proceeding involving the student, I note that neither party has appealed that finding, and as such, it is 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]).