Application of a Student with a Disability

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-172

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

Appearances:

The Law Office of Elisa Hyman, PC, attorneys for petitioners, by Erin O'Connor, Esq.

Liz Vladeck, General Counsel, attorneys for respondent, by Ezra Zonana, Esq.

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) fund compensatory education services for their son related to the 2024-25 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.  The student was eligible for special education, as a student with multiple disabilities, at all relevant times (see Dist. Exs. 2 at pp. 1, 19; 3 at p. 1).^[1]  The student has received diagnoses including blindness, cleft palate, hydrocephaly, and macrocephaly (Dist. Ex. 5 at p. 1).  

On March 15, 2024, a CSE convened for a meeting and developed an IEP for the student with a projected implementation date of April 17, 2024 (Dist. Ex. 2 at pp. 1, 28).^[2]  At the time of the March 2024 CSE meeting, the student attended a 6:1+2 special class at a New York State "Supported" (State-supported) nonpublic day school for the blind (Dist. Exs. 2 at p. 25; 5 at p. 1).  The March 2024 CSE recommended a 12-month program for the student consisting of a 6:1+2 special class at a State-supported nonpublic day school, adapted physical education, related services, and assistive technology (Dist. Exs. 2 at pp. 19-21, 25; 3 at pp. 1-3).  For related services, the CSE recommended two 30-minute sessions per week of individual occupational therapy (OT); three 30-minute sessions per week of individual physical therapy (PT); three 30-minute sessions per week of individual speech-language therapy; and two 30-minute sessions per week of individual orientation and mobility services, delivered both on and off the school campus (Dist. Exs. 2 at p. 19; 3 at pp. 1-3). Additionally, the CSE recommended specific assistive technology devices, testing accommodations, and special transportation (Dist. Exs. 2 at pp. 20, 22, 25; 3 at pp. 2-3).

On April 3, 2024, the district issued a prior written notice to the parents in both English and Spanish, memorializing the recommendations of the March 2024 CSE, as well as the other placement options considered (compare Dist. Ex. 1 at pp. 1, 45-46, with Dist. Ex. 3 at pp. 1-4).  According to the prior written notice, the March CSE used reports from the student's school, Lavelle School for the Blind (Lavelle), in developing the student's IEP (Dist. Ex. 3 at pp. 3, 9; see Dist. Exs. 4-9).  

A. Due Process Complaint Notice

In a due process complaint notice dated July 2, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. D at pp. 1-2, 12-14, 17).  The issues raised in the parents' due process complaint notice generally fall into the following categories: alleged illegal policies, procedures, and practices by the district, including violations of section 504 of the Rehabilitation Act of 1973 (section 504); procedural flaws in the development of the March 2024 IEP, including the alleged insufficiency of the evaluative information that the CSE relied upon; and substantive deficiencies in the March 2024 IEP itself (id. at pp. 1-4, 13-16).  The parents invoked pendency based on a prior, unappealed IHO decision dated May 26, 2024 (id. at p. 16).  As relief, the parents requested an order directing that the district reconvene the CSE; revise the student's IEP to provide home-based 1:1 instruction and additional related services; and provide compensatory education to make up any services which the student should have received, but did not receive, during the 2024-25 school year, including those which the student did not receive due to the district's failure to implement pendency (see id. at pp. 16-17).^[3]

B. Motion to Recuse, Impartial Hearing and Impartial Hearing Officer Decisions

An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed to preside over the matter (see Aug. 8, 2024 Tr. pp. 1-2).^[4]  On August 8, 2024, a prehearing conference was held, after which the parents filed a motion seeking the IHO's recusal (see Aug. 8, 2024 Tr. pp. 1-42; IHO Exs. I at p. 1; II at pp. 1-2, 8; III at p. 2).  Therein, the parents alleged that the IHO, formerly a lawyer for the district, demonstrated hostility and bias, or at least the appearance of bias, against their counsel (IHO Ex. II at pp. 2-3, 6-8).^[5]  On August 12, 2024, the IHO informed the parties by email that she would continue to preside over the matter and explain her rationale in the decision on the merits (IHO Ex. IV at p. 1).  

A pendency hearing was held on August 16, 2024, after which the IHO issued an interim decision on pendency (see Aug. 16, 2024 Tr. pp. 43, 45; Interim IHO Decision).  According to the IHO's pendency order, the student's pendency program consisted of placement in a 6:1+2 special class at Lavelle, along with educational vision services and teachers for the visually impaired (Interim IHO Decision at p. 2).

The parties reconvened for an impartial hearing on September 19, 2024, which concluded on October 25, 2024, after three days of additional proceedings (see Sept. 19, 2024 Tr. pp. 69-152; Oct. 18, 2024 Tr. pp. 1-43; Oct. 25, 2024 Tr. pp. 44-71).  During the impartial hearing, the parents offered various exhibits, most of which the IHO admitted into evidence (see Sept. 19, 2024 Tr. pp. 99-107, 112-18, 130-31; Parent Exs. C-L; N; O; R; T-V).^[6]  The parents' exhibits included testimony by affidavit from the director of The Language & Learning Lab of NY (Language & Learning Lab), an educational agency through which the student underwent a speech-language therapy evaluation in 2022 (see Sept. 19, 2024 Tr. pp. 118, 130-31; Parent Ex. U ¶¶ 1, 8, 15-16).  The parents' exhibits also included testimony by affidavit from a special education itinerant teacher (SEIT) services provider who previously worked with the student after school (see Sept. 19, 2024 Tr. 118, 130-31; Parent Ex. V ¶¶ 1, 10, 32, 50-51, 55).  Both the director of Language & Learning Lab and the SEIT provider appeared for cross-examination during the impartial hearing (see Sept. 19, 2024 Tr. pp. 133, 139; Oct. 18, 2024 Tr. p. 3; Oct. 25, 2024 Tr. p. 46).  The district presented no witness testimony but offered various exhibits, most of which the IHO admitted into evidence (see Sept. 19, 2024 Tr. pp. 97-107; Dist. Exs. 2-9).^[7]

In a decision dated February 13, 2025, the IHO explained her denial of the parents' recusal motion and determined that the district offered the student a FAPE for the 2024-25 school year (IHO Decision at pp. 19-27, 33-35). 

Regarding recusal, the IHO reasoned that she met all qualification standards to conduct an impartial hearing; that the parents failed to offer any evidence of bias; and that "the [p]arent[s] had a full and fair opportunity to present [their] case at the impartial hearing, which was conducted in a manner consistent with the requirements of due process" (IHO Decision at p. 27).  According to the IHO, neither her threat to dismiss the case, her request that the parents' counsel not appear unless prepared, nor her previous employment with the district established bias in her role as an IHO (id. at pp. 23, 25).^[8]  Thus, according to the IHO, the parents failed to overcome the presumption of honesty and integrity afforded to impartial hearing officers (id. at p. 27).

Regarding the development of the subject IEP, the IHO found that the CSE was duly constituted; that the CSE reviewed recent reports from the student's school; that the school reports provided details regarding all areas of suspected disability; that the parents had a meaningful opportunity to participate at the CSE meeting; and that the parents provided no details to support their predetermination claim (Feb. 13, 2025 IHO Decision at pp. 30-31, 33).^[9]  According to the IHO, the district's failure to list every report that the CSE relied on in its prior written notice, "even if considered a procedural inadequacy, d[id] not rise to the level [of] [] a deprivation of [a] FAPE" (id. at pp. 30-31).  

 Regarding the IEP's substance, the IHO found that the IEP "addressed the [s]tudent's identified needs" and offered him "a meaningful opportunity to progress academically" (IHO Decision at p. 33).  More specifically, the IHO found that the IEP appropriately described the student's then-current "performance and academic, developmental, and functional needs in detail, with information provided by [his] [] teachers and providers"; that the IEP listed the student's management needs; and that "[t]he IEP contained [11] annual goals . . .  addressing comprehension, communication, directives, conceptual understanding, conversation exchanges, physical strength, balance and body awareness, agility," activities of daily living, and orientation concepts (id. at pp. 31-32). 

In addition, the IHO found that the hearing record lacked evidence to support the student's alleged need for "an extensive at home program to make progress" (IHO Decision at p. 34).  According to the IHO, "the parent[s] relie[d] on outdated evaluations from [20]20, [20]21[,] and [20]22," as well as "testimony from individuals who have a pecuniary interest in offering the after-school services," to support their request for 52 weeks of home-based services (id.).^[10]  The IHO found that the testimony of the parents' first witness, the director of Language & Learning Lab, was not germane to the student's current needs, as the witness had not worked with, evaluated, or observed the student since 2021 (id.).  The IHO also noted that the parents' second witness, a SEIT provider who previously worked with the student, "testified that the purpose of the after-school services [wa]s to generalize the skills the [s]tudent [wa]s learning in school to the home environment" (id.).     

Having found that the district offered the student a FAPE for the for the 2024-25 school year, the IHO denied the requested relief altogether (IHO Decision at p. 35).^[11]

IV. Appeal for State-Level Review

The parents appeal.  The parties' familiarity with the issues raised in the parents' request for review is presumed and, therefore, the particular allegations and arguments will not be recited here in detail.  Briefly, the parents contend that the IHO erred in denying their recusal motion; in failing to order 1:1 home-based instruction and increased related services for the student under pendency; in failing to address the parents' section 504 claims; and in determining that the district offered the student a FAPE for the 2024-25 school year.  In appealing the IHO's FAPE determination, the parents raise issues concerning the controlling legal standard; the sufficiency of the evaluative information used to develop the March 2024 IEP; the district's burden of proof; the frequency of the student's related services; the student's progress under his prior IEP; the adequacy of the 2024 IEP annual goals; and the omission of home-based instruction from the recommended program.  The parents ask that an SRO declare that an appropriate program for the student includes 10 hours per week of 1:1 home-based instruction on a 52-week basis, as well as additional OT, PT, and speech-language therapy.  In addition, the parents ask that an SRO award a bank of compensatory services including 520 hours, or 10 hours per week for 52 weeks, of 1:1 home-based instruction; 84 hours, or two hours per week for 42 weeks, of OT; 42 hours, or one hour per week, of PT; and 147 hours, or three and one-half hours per week, of speech-language therapy.  The parents submit additional evidence, absent from the hearing record below, for admission and consideration on appeal.

The district interposed an answer to the parents' request for review.  Therein, the district contends that an SRO should reject the parents' additional evidence; affirm the IHO's determination that the district offered the student a FAPE; affirm the IHO's interim decision on pendency; and deny the requested relief.  With regard to the requested relief, the district argues that SROs are not permitted to usurp the CSE's authority by crafting the student's program going forward; and, even if the district had denied the student a FAPE, the parents' request for compensatory education is not ripe because the parents filed their due process complaint notice on or about the first day of the 12-month school year. 

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.  After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).  "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404).  The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).  Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).^[12]

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

As an initial matter, I must address the scope of review on appeal.         

State regulations governing practice before the Office of State Review provide that a request for review "shall clearly specify the reasons for challenging the [IHO's] decision, identify the findings, conclusions, and orders to which exceptions are taken, or the failure or refusal to make a finding, and shall indicate what relief should be granted by the [SRO] to the petitioner" (8 NYCRR 279.4[a]).  The practice regulations further provide that a request for review must set forth "a clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately," and further specify that "any issue not identified in a party's request for review, answer, or answer with cross-appeal shall be deemed abandoned and will not be addressed by a State Review Officer" (8 NYCRR 279.8[c][2], [4]).        

With regard to pleadings, the practice regulations specifically prohibit incorporation by reference (8 NYCRR 279.8[b]); and it has long been held that a memorandum of law is not a substitute for a pleading (see 8 NYCRR 279.4[g]; 279.6[a]; 279.8[c][4]; [d];  Davis v. Carranza, 2021 WL 964820, at *11 [S.D.N.Y. Mar. 15, 2021]; Application of the Bd. of Educ., Appeal No. 22-092; Application of a Student with a Disability, Appeal No. 15-070).  Accordingly, any issue raised solely within a party's memorandum of law has not been properly raised on appeal and "shall be deemed abandoned" (see 8 NYCRR 279.8[c][4]; Davis, 2021 WL 964820, at *11).      

In their memorandum of law, the parents assert that the district's prior written notice was inadequate because it failed to specify which reports the March 2024 CSE relied upon (Parent Memo. of Law at p. 10).  However, the parents' request for review does not identify such alleged inadequacy as a ground for reversing the IHO's FAPE determination.  That issue is, therefore, outside the scope of review on appeal and will not be addressed herein (see Application of a Student with a Disability, Appeal No. 25-139 [stating that "[a]ny arguments included solely within the parent's memorandum of law have not been properly raised in the pleading . . . and will not be considered"]).

The parents also allege that the IHO erred in failing to address the parents' section 504 claims.  However, an SRO lacks jurisdiction to consider an IHO's failure or refusal to rule on section 504, as an SRO's jurisdiction is limited by State law to matters arising under the IDEA and Article 89 of the Education Law (Educ. Law § 4404[2] [providing that SROs review IHO determinations "relating to the determination of the nature of a child's handicapping condition, selection of an appropriate special education program or service and the failure to provide such program"]).  Courts have also 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, an SRO does not have jurisdiction to review any portion of the parents' claims regarding section 504, and such claims will not be further addressed.

2.Additional Evidence

Next, I must address the parents' submission of additional documentary evidence with their request for review.  The parents submit a partially redacted letter from the New York State Education Department's (NYSED's)  Office of Special Education, labeled as SRO Exhibit A.  The letter, which is dated March 19, 2024, conveyed the disposition of a complaint filed against the IHO.  According to the letter, an independent review of the IHO's conduct during an impartial hearing resulted in a finding that "the IHO failed to conduct hearings in accordance with appropriate, standard legal practice . . .  in violation of 34 C.F.R § 300.511(c)(1)(iii); 8 NYCRR § 200.1(x)(4)(v)" (Proposed SRO Ex. A at p. 1).^[13]  According to the parents, proposed SRO Exhibit A supports their position that "the IHO failed to conduct the[se] proceedings in a fair and neutral manner and in accordance with due process" (Parent Mem. of Law at p. 8).  The district objects to the admission of proposed SRO Exhibit A, arguing that it does not provide underlying facts or context and "does not indicate that … [NY]SED believed that any sanctions were appropriate" (Answer ¶ 9).     

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]; Landsman v. Banks, 2024 WL 3605970, at *3 [S.D.N.Y. July 31, 2024] [finding a plaintiff's "inexplicable failure to submit this evidence during the IHO hearing barred her from taking another bite at the apple"]; 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]).

The document in question, proposed SRO Exhibit A, is not necessary to render a decision on appeal.  The document has no bearing on whether the IHO was qualified to preside over an impartial hearing (see 20 U.S.C. § 1415[f][3][A]; 34 CFR 300.511[c][1]; 8 NYCRR 200.1[x]).  It shows that a complaint was made regarding the IHO's conduct in a prior, unrelated matter (see Parent Ex. A at pp. 1, 18; Proposed SRO Ex. A at p. 1); but it sheds no light on the IHO's neutrality, or lack of neutrality, toward the particular parties and attorneys who appeared in this case.  As further discussed below, it is the manner in which the IHO conducted these particular proceedings that is at issue.  Therefore, I decline to accept the parents' additional documentary evidence for admission and consideration on appeal.    

3.Request for Recusal

Before addressing the merits of the parents' appeal, I must also determine whether the IHO erred in denying the parents' recusal motion.  According to the parents, the IHO should have recused herself from the matter due to lack of neutrality and/or bias.  The parents contend that, as an employee of OATH, an agency of the City of New York, the IHO had an "inherent conflict of interest" or, at least, "the appearance of a conflict, as the cost of relief must be borne by the City" (Parent Memo. of Law at p. 7).   The parents also assert that, throughout the proceedings, the IHO displayed hostility toward their counsel, a lack of necessary decorum, and a lack of evenhandedness in her treatment of the parties.  More specifically, the parents assert that the IHO repeatedly berated their counsel, calling her unprofessional, because she had difficulty recalling specific facts without referring to the due process complaint notice.  The district asks that an SRO affirm the IHO's recusal ruling, arguing that the IHO "was brusque with both parties" but acted appropriately (Answer ¶ 9).   

State regulations set forth the procedures for conducting an impartial hearing and address, in part, minimal process requirements that shall be afforded to both parties (8 NYCRR 200.5[j]).  Among other process rights, each party shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses (8 NYCRR 200.5[j][3][xii]).  Furthermore, each party "shall have up to one day to present its case" (8 NYCRR 200.5[j][3][xiii]).   State regulation provides that the IHO "shall exclude any evidence that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious" and "may limit examination of a witness by either party whose testimony the impartial hearing officer determines to be irrelevant, immaterial or unduly repetitious" (8 NYCRR 200.5[j][3][xii][c], [d]).

Generally, unless specifically prohibited by regulation, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]).  At the same time, the IHO is expected to ensure that the impartial hearing operates as an effective method for resolving disputes between the parents and district (Letter to Anonymous, 23 IDELR 1073).  State and federal regulations balance the interests of having a complete hearing record with the parties having sufficient opportunity to prepare their respective cases and review evidence.

It is well settled that an IHO must be fair and impartial and must avoid even the appearance of impropriety or prejudice (see, e.g., Application of a Student with a Disability, Appeal No. 12-066).  Moreover, an IHO, like a judge, must be patient, dignified, and courteous in dealings with litigants and others with whom the IHO interacts in an official capacity and must perform all duties without bias or prejudice against or in favor of any person, according each party the right to be heard, and shall not, by words or conduct, manifest bias or prejudice (e.g., Application of a Student with a Disability, Appeal No. 12-064).  An IHO may not be an employee of the district that is involved in the education or care of the child, may not have any personal or professional interest that conflicts with the IHO's objectivity, must be knowledgeable of the provisions of the IDEA and State and federal regulations and the legal interpretations of the IDEA and its implementing regulations, and must possess the knowledge and ability to conduct hearings and render and write decisions in accordance with appropriate, standard legal practice (20 U.S.C. § 1415[f][3][A]; 34 CFR 300.511[c][1]; 8 NYCRR 200.1[x]).  In addition, "[n]o individual employed by a district, school, or program serving students with disabilities placed there by a CSE may serve as an impartial hearing officer . . .  for two years following the termination of such employment" (8 NYCRR 200.1[x]).

Initially, I note that an SRO lacks jurisdiction to consider claims pertaining to alleged systemic violations, as an SRO's jurisdiction is limited by State law to matters arising under the IDEA and Article 89 of the Education Law (Educ. Law § 4404[2] [providing that SROs review IHO determinations "relating to the determination of the nature of a child's disability, selection of an appropriate special education program or service[,] and the failure to provide such program"]).  Generally, "systemic violations [are] to be addressed by the [] 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. 2009], aff'd, 353 Fed. App'x 461 [2d Cir. Nov. 12, 2009]).^[14]  Accordingly, the parents' assertion that the OATH IHO was inherently conflicted will not be further addressed. 

In her decision, the IHO acknowledged her previous employment with the district but asserted that such employment ended three and one-half years prior (IHO Decision at p. 25).  The hearing record includes no evidence that the IHO was employed by the district within two years prior to her appointment in this matter.  Accordingly, the hearing record does not support a finding that the IHO's past employment with the district violated the relevant State regulations concerning IHO impartiality (see 8 NYCRR 200.1[x]).  

As for the IHO's demeanor, the transcripts of the proceedings reveal that the IHO was impatient and even combative toward the parents' attorney, frequently interrupting said attorney and criticizing her professionalism (see Aug. 8, 2024 Tr. pp. 5-22, 31-36, 38-39; Aug. 16, 2024 Tr. pp. 46, 49, 57-58, 61-62; Sept. 19, 2024 Tr. pp. 70-71).  Nevertheless, the Supreme Court has held that "expressions of impatience, dissatisfaction, annoyance, and even anger" do not establish the bias or partiality of a judge (Litkey v. United States, 510 U.S. 540, 555-56 [1994]).  According to the Supreme Court, "judicial remarks . . . that are critical or disapproving of, or even hostile to counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge" unless "they reveal an opinion that derives from an extrajudicial source [or] such a high degree of favoritism or antagonism as to make fair judgment impossible" (id.).   

In this case, there is no evidence that extrajudicial matters, or favoritism toward the district, influenced the proceedings or the resulting decision.  Nor do the parents allege any instances of favoritism aside from the IHO's demeanor.  While the parents' attorney bore the brunt of the IHO's frustration (Aug. 8, 2024 Tr. pp. 5-22, 31-36, 38-39; Aug. 16, 2024 Tr. pp. 46, 49, 57-58, 61-62; Sept. 19, 2024 Tr. pp. 70-71), the hearing record shows that the IHO also displayed frustration toward the district's counsel (Aug. 16, 2024 Tr. pp. 52-53).  The hearing record further shows that the parents, through their counsel, presented opening and closing arguments; introduced documentary evidence; introduced witness testimony by affidavit in lieu of direct examination; had the opportunity to introduce additional, live testimony upon direct examination; and introduced testimony upon redirect examination (see Sept. 19, 2024 Tr. pp. 77-78, 99-107, 112-18, 130-31, 138-39; Oct. 18, 2024 Tr. pp. 3-5; 26-32; Oct. 25, 2024 Tr. pp. 60-62; Parent Exs. C-L; N; O; R; T-V; IHO Ex. XI).  Thus, while the IHO's demeanor in this case was perhaps not the best model of the patience, dignity, and courteousness expected of an IHO, the hearing record does not support a finding that the IHO exhibited bias against the parents or their counsel such that the parents were prevented from developing the hearing record or otherwise deprived of a full and fair opportunity to be heard  (see, e.g., Application of a Student with a Disability, Appeal No. 22-070 [finding that, although the "IHO should have used better language to explain her frustration with the parent advocate's line of questioning," the IHO did not exhibit bias against the parent]; cf. Application of a Child with a Disability, Appeal No. 04-046 [finding bias on the part of the IHO against the parents' representatives where the hearing record showed that the IHO "repeatedly shout[ed] at persons appearing for" the parents, "to the point where the hearing could not proceed at one point," and "attempt[ed] to bar the parents' advocate from the first day of the hearing" but showed no instances of the IHO yelling at the district's attorney or witnesses]).^[15]

Overall, the hearing record demonstrates that the parent had the opportunity to present evidence and arguments in support of her request for relief and that the IHO conducted the impartial hearing in a manner consistent with the requirements of due process (see Educ. Law § 4404[2]; 34 CFR 300.514[b][2][i], [ii]; 8 NYCRR 200.5[j]).  Moreover, the evidence in the hearing record shows no indication that the IHO was unqualified to preside over this matter (see 20 U.S.C. § 1415[f][3][A]; 34 CFR 300.511[c][1]; 8 NYCRR 200.1[x]).  Finally, "[t]o the extent that the parent[s] disagree[] with the conclusions reached by the IHO[,] or with the weight afforded to" the evidence in the hearing record, "such disagreement does not provide a basis for finding actual or apparent bias by the IHO" (Application of a Student with a Disability, Appeal No. 23-090; see Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 [2d Cir. 2009] ["Generally, claims of judicial bias must be based on extrajudicial matters, and adverse rulings, without more, will rarely suffice to provide a reasonable basis for questioning a judge's impartiality"]).  

For the foregoing reasons, I cannot conclude that the IHO erred in denying the parents’ motion for recusal (see Withrow v. Larkin, 421 U.S. 35, 47 [1975] [holding that administrative hearing officers are entitled to "a presumption of honesty and integrity"]).  

4.Burden of Proof

Turning to the merits, the parents contend that the IHO failed to hold the district to its burden of proving that it offered the student a FAPE for the 2024-25 school year.  According to the parents, the district's hearing presentation failed to rebut either the parents' procedural or substantive claims.           

Under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer v. Weast, 546 U.S. 49, 59-62 [2005] [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]). ^[16]  Under State law, however, the burden of proof has been placed on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85).  Thus, the district has the burden of proving that the IEP it created was appropriate to meet the student's special education needs.

In Endrew F., the Supreme Court held that the "reviewing court may fairly expect [school] authorities . . .  to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances"(580 U.S. at 404).  While the district's burden does not require that the district call witnesses, it does require the district to defend its recommendations and provide evidence that explains such recommendations.  If the district intends to rest its case on documentary evidence alone, the district should offer into evidence all documentation pertaining to the evaluation of the student and the CSE's recommendations, including prior written notices (34 CFR 300.503[a]; 8 NYCRR 200.5[a]; see also L.O. v. New York City Dep't of Educ., 822 F.3d 95, 110-11 [2d Cir. 2016] [discussing the consequences of a CSE's failure to adequately document evaluative data, including that reviewing authorities might be left to speculate as to how the CSE formulated the student's IEP]).

The IHO must "conduct a fact-specific analysis in order to determine whether a district offered the student a FAPE[;]" and the "district must ensure that the hearing record includes evidence addressing the particular issues raised by the parents in their due process complaint notice" (Application of a Student with a Disability, Appeal No. 25-125.)   "The sufficiency of the evidence presented should be determined after weighing the relative strengths and weaknesses of the parties' evidence in light of the allegations and the relevant legal standards" (id.).

In this case, the district presented documentary evidence including the March 2024 IEP itself, the April 2024 prior written notice, and the evaluative materials which the CSE used in developing the student's program (see Sept. 19, 2024 Tr. pp. 97-107; Dist. Exs. 2-9).  Those evaluative materials consisted of the following reports from Lavelle: an annual educational report dated January 21, 2024; an orientation and mobility annual report dated December 27, 2023; an adapted physical education report dated December 19, 2023; an annual speech and language report dated December 26, 2023; a PT annual report dated December 12, 2023; and an OT annual report dated January 1, 2023 (see Sept. 19, 2024 Tr. pp. 97-107; Dist. Exs. 3 at p. 3; 4 at pp. 1, 3; 5 at pp. 1, 3; 6; 7 at pp. 1-2; 8 at pp. 1-2; 9 at pp. 1, 3).^[17]

Contrary to the parents' contention, the district's presentation of documentary evidence was sufficient to sustain its burden of proof (see Application of a Student with a Disability, Appeal No. 24-084 [reversing the IHO's determination that the district failed to meet its burden of proof without testimony "to explain why it was appropriate . . . to rely on [the evaluative information] and why the IEP was appropriate"]).  The basis for the CSE's recommendations is evident from the March 2024 IEP, reviewed in conjunction with the prior written notice and the Lavelle reports.  Indeed, the present levels of performance section of the IEP quoted verbatim from the various Lavelle reports (compare Dist. Ex. 2 at pp. 1-6, with Dist. Exs. 4 at p. 3; 5 at pp. 1-3; 6; 7 at pp. 1-2; 8 at p. 1; 9 at p. 2).  Moreover, the IEP and the prior written notice both indicated that the CSE considered alternative placement options for the student and stated the CSE's rationale for rejecting those alternatives (Dist. Exs. 2 at p. 28; 3 at pp. 3-4).  As further explained below, the district's impartial hearing presentation provided sufficient information to enable a fact-specific review of the parents' procedural and substantive challenges to the recommended program.

B. CSE Process

1.Sufficiency of Evaluative Information

The parents contend that the IHO should have found that the district's failure to conduct the student's mandated triennial evaluation resulted in the CSE lacking sufficient evaluative information to justify a determination that the March 2024 IEP offered the student a FAPE.  The parents also argue that the IHO disregarded their independent evaluations as "outdated" while relying on assessment results that were two years old at the time of the CSE meeting, and that reports from the student's school are not the same as evaluations.  The district does not dispute its failure to conduct a triennial evaluation but argues that, in addition to the 2022 assessment results, the March 2024 CSE relied on six current reports from Lavelle, as well as input from Lavelle personnel, who were very well acquainted with the student, during the CSE meeting.

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).

The district's failure to conduct a triennial reevaluation of the student constitutes a procedural violation that would lead to a finding that the student did not receive a FAPE in the event that such violation 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).  Under the circumstances of this case and for the reasons detailed below, I do not find that the district's failure to reevaluate the student deprived the student of a FAPE.  

A district is not required to use evaluative information from its own sources in the preparation of an IEP and may rely on privately obtained evaluative information in lieu of conducting its own evaluation (M.H. v. New York City Dep't of Educ., 2011 WL 609880, at *9 [S.D.N.Y. Feb. 16, 2011]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 373 F. Supp. 2d 292, 299 [S.D.N.Y. 2005]; Application of the Dep't of Educ., Appeal No. 10-025; Application of a Student with a Disability, Appeal No. 10-004; Application of a Child with a Disability, Appeal No. 02-098; Application of a Child with a Disability, Appeal No. 01-040; Application of a Child with a Disability, Appeal No. 96-87); Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-12; see also Application of a Child Suspected of Having a Disability, Appeal No. 98-80).  Contrary to the parents' argument on appeal, a district may  rely on information obtained from a student's private school personnel, including sufficiently comprehensive progress reports, in formulating the student's IEP (see C.M. v. New York City Dep't of Educ., 2017 WL 607579, at *15-*17 [S.D.N.Y. Feb. 14, 2027]; D.B., 966 F. Supp. 2d at 329-31; G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *23 [S.D.N.Y. Mar. 29, 2013]; S.F., 2011 WL 5419847, at *10). 

Consistent with the district's argument, the evidence in the hearing record shows that the March 2024 CSE relied on several recent reports from the student's classroom teacher and related services providers which, as discussed below, provided a comprehensive description of the student's needs and then-current functioning across the following domains: cognition, communication, vision, orientation and mobility, motor skills, and social/emotional skills (see Dist. Exs. 3 at p. 3; 4 at pp. 1-3; 5 at pp. 1-3; 6; 7 at pp. 1-2; 8 at pp. 1-2; 9 at pp. 1-3).  Review of the subject IEP reveals that the CSE incorporated information from the aforementioned reports, compiled within approximately three months prior to the March 2024 meeting, into the present levels of performance section of the IEP (compare Dist. Ex. 2 at pp. 1-6, with Dist. Exs. 4 at pp. 1-3; 5 at pp. 1-3; 6; 7 at pp. 1-2; 8 at p. 1; 9 at pp. 1-2).  The IEP also indicates that the student's mother, an IEP coordinator from Lavelle, and the student's classroom teacher at Lavelle participated in the CSE meeting, and the present levels of performance reflect parental input (Dist. Ex. 2 at pp. 3, 28).  

Based on the foregoing, I find that the March 2024 CSE had sufficient evaluative information from which to develop a substantively adequate IEP; and, thus, the district's failure to reevaluate the student did not rise to the level of a denial of a FAPE to the student (see, e.g., Application of the Dep't of Educ., Appeal No. 14-083 [finding that the district's failure to conduct a triennial evaluation did not rise to the level of a denial of a FAPE where the CSE incorporated information regarding the student's needs and functioning from a December 2011 private school progress report into the student's May 2012 IEP]; Application of a Student with a Disability, Appeal No. 12-089 ["find[ing] that the information available to the . . . CSE was sufficiently comprehensive to identify all of the student's special education and related services needs," despite the district's failure to reevaluate the student, where the CSE relied on sufficient evaluative information from other sources including the parent, private school staff, and recent school reports).^[18]

2.Parental Participation and Predetermination

According to the parents, the district's hearing presentation failed to rebut the allegation that the district engaged in predetermination by refusing to consider a recommendation for after-school/home-based instruction.  The parents argue that neither the March 2024 IEP nor the April 2024 prior written notice indicated that after-school/home-based services were considered but rejected.  The parents also contend that the district failed to rebut the allegation that annual goals were not meaningfully discussed at the March 2024 CSE meeting.  The district's answer is not responsive to these particular contentions.   

I will first address the parents' contention that the IEP annual goals were not meaningfully discussed during the CSE meeting.

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"]).

As discussed above, the subject IEP indicates that the student's mother participated in the March 2024 CSE meeting and expressed concerns (see Dist. Ex. 2 at pp. 3, 28).  Specifically, the present levels of performance section of the IEP states that the student's mother would like the student to work on the following self-help skills: handwashing, dressing/undressing, "walking up and down stairs," "improving endurance while walking," and "using gestures and verbal approximations during moments in which a communications device is not available" (id. at pp. 3, 6). 

Conversely, the hearing record lacks evidence that the parent in attendance attempted to raise or discuss specific concerns related to the student's annual IEP goals during the CSE meeting and was rebuffed by other members of the CSE.  The IEP reflects no parental concerns regarding the student's annual goals, and the hearing record includes no testimony in that regard (see Aug. 8, 2024 Tr. pp. 1-42, Aug. 16, 2024 Tr. pp. 43-68, Sept. 19, 2024 Tr. pp. 69-152, Oct. 18, 2024 Tr. pp. 1-43, Oct. 25, 2024 Tr. pp. 44-71; Dist. Ex. 2 at p. 3).  Thus, "the weight of the evidence in the hearing record indicates that, because [a] parent . . . participated in the [CSE] meeting and[, as further discussed below,] the annual goals were appropriate to meet the student's needs, any failure to discuss the particular annual goals included in the . . . IEP at the CSE meeting did not significantly impede the parent[s'] opportunity to participate in the development of the student's IEP" (Application of a Student with a Disability, Appeal No. 24-208; see E.A.M. v. New York City Dep't of Educ., 2012 WL 4571794, at * 8 [S.D.N.Y. Sept. 29, 2012] [recognizing that the IDEA does not require that annual goals be drafted at the CSE meeting]).

As to the parents' claim that the CSE engaged in predetermination regarding after-school/home-based services, 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. v. New York City Dep't of Educ., 2015 WL 4597545, at *8-*9 [S.D.N.Y. July 30, 2015]; 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. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-*11 [E.D.N.Y. Sept. 2, 2011], aff'd, 506 Fed. App'x 80 [2d Cir. 2012]; 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., 2013 WL 25959, at *18 [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]).

Given that the student's mother actively participated in the March 2024 CSE meeting, the parents' claim of predetermination is necessarily undermined (see Dist. Ex. 2 at pp. 3, 28).  In support of their predetermination claim, the parents argue that neither the March 2024 IEP nor the April 2024 prior written notice indicate that the CSE considered but ultimately rejected after-school/home-based services.  Yet, the hearing record lacks evidence that the student's mother attempted to raise or discuss the student's alleged need for after-school/home-based services during the CSE meeting, and the district was not required "to prove that an event did not happen" (Application of a Student with a Disability, Appeal No. 24-404, citing Mejia v. Banks, 2024 WL 4350866, at *6 [S.D.N.Y. Sept. 30, 2024]).^[19]  "[The hearing record is [similarly] devoid of evidence demonstrating that any [member of] the CSE[] possessed preformed opinions regarding the student's [] education[al] program. . . , and the parents do not point to any evidence of such" (Application of a Student with a Disability, Appeal No. 24-605).  Thus, the weight of the evidence in the hearing record does not support a finding that the district predetermined the student's program (see, e.g., Application of a Student with a Disability, Appeal No. 25-064 [finding that the hearing record did not support the parents' predetermination claim, absent evidence that the parents' "opportunity to participate was actually impeded or [that] the CSE acted with a closed mind or predetermined outcome"]).    

C. March 2024 IEP

1.The Student's Needs

In addition to the procedural claims discussed above, the parents' appeal presents several challenges to the substantive adequacy of the March 2024 IEP.  A brief discussion of the student's needs and then-current functioning, as known to the March 2024 CSE, will provide the context needed to review whether the March 2024 IEP offered the student a FAPE.

As reported in the IEP, the student had received "diagnose[s] [of] blindness, congenital malformation of the eye, cleft palate, fused fingers (on [one] hand), hydrocephaly, macrocephaly, anophthalmia, and aortic valve disease" (Dist. Ex. 2 at p. 4; see also Dist. Ex. 5 at p. 1).  Upon review, the IEP reveals that the student exhibited significant cognitive, physical, visual, communicative, and social challenges; and, as a result, he "required significant curriculum modifications and teaching strategies" to address his educational needs (see Dist. Ex. 2 at pp. 1-6, 28).^[20]

Lavelle's January 2024 annual education report indicated that the student's "skills were evaluated using the Student Annual Needs Determination Inventory (SANDI) and classroom observations" (Dist. Ex. 5 at p. 1).^[21]  According to the annual education report,  the student obtained scores reflecting a "[b]irth to [p]re-[kindergarten] level" in the categories of reading, writing, and math, and the student obtained scores at a kindergarten level in the communication and the social/emotional categories of the SANDI (id.).^[22]

The hearing record reflects the following additional information regarding the student's cognitive skills, as indicated in the annual education report and the IEP.  The student was "primarily an auditory learner" but "use[d] his tactile skills as his secondary mode of learning" (Dist. Exs. 2 at p. 2; 5 at p. 2).  He "follow[ed] one-step directives that [we]re part of his daily routine," and he was "working on following directions based on [the] concepts of size, shape, texture, and direction with moderate assistance" (Dist. Exs. 2 at p. 2; 5 at p. 2).  The student could "sort two shapes with verbal prompting and minimal physical assistance," and he could "match objects by shape, size, or texture with verbal prompts and moderate physical assistance" (Dist. Exs. 2 at p. 2; 5 at p. 2).  The student "need[ed] to work on his understanding of basic concepts related to math and pre-braille" (Dist. Ex. 5 at p. 3), and he was "working on number concepts by giving the correct number of items upon request as an adult count[ed] aloud to that number" (Dist. Exs. 2 at pp. 2; 5 at p. 2).  

The annual education report and the IEP provided the following information regarding the student's daily living skills.  The student could "remove his coat independently" and could pull the zipper up and down, but he "require[d] assistance to engage the zipper" (Dist. Exs. 2 at p. 2; 5 at p. 2).  The student could "independently feed himself finger foods" and "independently drink from a straw, cup, or plastic water bottle" (Dist. Exs. 2 at p. 2; 5 at p. 2).  The student "require[d] minimal to moderate assistance to pierce or scoop with utensils but c[ould] bring the utensil to his mouth independently" (Dist. Exs. 2 at p. 2; 5 at p. 2).  The student was toilet-trained, used adapted bars for support in the bathroom, and "lean[ed] on the sink for support when washing his hands" (Dist. Exs. 2 at p. 2; 5 at p. 2).  The student could "turn on the faucet independently" but "require[d] moderate physical assistance to rub his hands with soap, rinse his hands, and dry them with a paper towel" (Dist. Exs. 2 at p. 2; 5 at p. 2).  The student "need[ed] to further develop his independence in activities of daily living" and, according to the student's mother, he needed to work on self-help skills such as handwashing, dressing/undressing, and fastener manipulation, particularly with zippers (Dist. Exs. 2 at pp. 3, 6; 5 at p. 3).

With regard to vision, the annual education report and the IEP provided the following information.  The student "ha[d] no functional vision" and "use[d] tactile learning materials" (Dist. Exs. 2 at p. 2; 5 at p. 1).  The student was "working on pre-braille skills," and "identifying the numbered dots in a braille cell and the letters in his name" (Dist. Exs. 2 at p. 2; 5 at p. 1).  The student was "learning to use a white cane during one-to-one orientation and mobility sessions," but he was "resistant to using the white cane with classroom staff" (Dist. Exs. 2 at p. 2; 5 at p. 1).  The student "ha[d] a good sense of the classroom environment and c[ould] navigate using trailing and protective techniques to move around the classroom and [] halls" (Dist. Exs. 2 at p. 2; 5 at pp. 1-2).  With close supervision, the student could "locate familiar locations in the school . . . such as the boy's bathroom" (Dist. Exs. 2 at p. 2; 5 at p. 2).

The hearing record reflects the following information regarding the student's communication skills, as indicated in the annual education report, Lavelle's December 2023 annual speech and language report, and the IEP.  The student was "nonverbal and primarily communicate[d] using a static display communication device with auditory output and a keyguard overlay" (Dist. Exs. 2 at p. 1; 9 at p. 2).  The student used his device to produce one-to-six-word utterances for various language functions, for example, to comment, label, greet, request assistance or items/actions, and indicate feelings (Dist. Exs. 2 at p. 1; 9 at p. 2).  The student could "identify his name, the day of the week, and the month of the year using tangible cues and his communication device," and he "accurately answer[ed] yes/no questions on the device" (Dist. Exs. 2 at p. 2; 5 at p. 2).  The student was "highly motivated to use his communication device" and he was "making notable progress in his expressive and receptive communication skills" (Dist. Exs. 2 at p. 2; 5 at p. 3).      

Regarding the student's social development, the hearing record reflects the following information as indicated in the annual education report, the annual speech and language report, and the IEP.  The student "enjoy[ed] social interaction with adults," showed "some interest in his peers," and "relie[d] on verbal prompts to sustain conversational turns and turns during play activities with peers and adults" (Dist. Exs. 2 at p. 3; 5 at p. 3).  The student would "vocalize and smile when happy" and "frown and scream when he [wa]s upset or d[id] not want to do something" (Dist. Exs. 2 at p. 4; 5 at p. 3).  At times, the student had "trouble transitioning from preferred activities to non-preferred activities but c[ould] be calmed with verbal re-direction" (Dist. Exs. 2 at p. 3; 5 at p. 3).  The student "need[ed] to work on stating his feelings[] and independently sustaining conversational turns" (Dist. Exs. 2 at p. 4; 9 at pp. 2-3).

Lastly, the hearing record reflects the following information regarding the student's physical development, as indicated in Lavelle's December 2023 PT annual report, Lavelle's January 2024 OT annual report, the annual education report, and the IEP.  The student "present[ed] with bilateral upper extremity range of motion within functional limits," limited lower extremity range of motion "in both knees and ankles," and "finger malformation" on one hand (Dist. Exs. 2 at p. 5; 7 at p. 1; 8 at p. 1).  He exhibited delays in both fine and gross motor skills (Dist. Exs. 7 at p. 2; 8 at p. 2).  Despite progress with fine motor skills, the student "continue[d] to need extensive assistance for self-care tasks" (Dist. Ex. 8 at p. 2).  As for gross motor skills, the student exhibited "good sitting and fair standing balance" (Dist. Exs. 2 at p. 5; 7 at pp. 1-2).  He could "transition to standing from sitting and vice versa with verbal prompts" (Dist. Exs. 2 at p. 5; 7 at pp. 1-2).  Although the student's endurance had improved, he "need[ed] to take breaks wh[ile] walking" (Dist. Ex. 5 at p. 3).  The student "walk[ed] slowly and need[ed] verbal prompts to avoid obstacles" (Dist. Exs. 2 at p. 5; 5 at p. 2; 7 at pp. 1-2).  With assistance, "[h]e negotiate[d] stairs with a step-over-step pattern" (Dist. Exs. 2 at p. 6; 5 at p. 3; 7 at p. 2).  The student "need[ed] to increase his independence in stair negotiation to safely access his school environment" (Dist. Ex. 2 at p. 6).      

2.Annual Goals and Progress Under Prior IEP

The parents contend that "[t]he IHO should have found a denial of [a] FAPE based on lack of progress and appropriate goals" (Req. for Rev. ¶ 5).  The parents argue that comparison of the March 2024 IEP with the student's prior IEP, dated April 1, 2022, reveals that four of the 11 goals are exactly the same and another three goals are nominally different.  According to the parents, this shows a lack of progress in the two years that followed the development of the 2022 IEP.  The parents specifically assert that the speech-language therapy goals were inadequate, given the student's lack of progress in communication and his profound language skill deficits.  The parents also assert that the March 2024 IEP included only two OT goals, one of which the student had previously mastered.  The district argues that the goals included in the March 2024 IEP reflect the student's needs, as indicated in the Lavelle reports; further, that all such reports, while acknowledging the student's continuing needs, indicate that the student was making progress, provide specific examples of the progress achieved, and note that the student was meeting the objectives that the school set for him.

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]).^[23]  The IDEA does not require  a specific number of goals for each of a student's deficits, and a district's failure to create a specific annual goal does not necessarily rise to the level of a denial of FAPE; rather, a determination must be made as to whether the IEP, as a whole, contained sufficient goals to address the student's areas of need (J.L. v. New York City Dep't of Educ., 2013 WL 625064, at *13 [S.D.N.Y. Feb. 20, 2013]; see C.M., 2017 WL 607579, at *20-*21).

A student's progress under a prior IEP is a relevant area of inquiry for purposes of determining whether an IEP has been appropriately developed, particularly if the parents express concern with respect to the student's rate of progress (see H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 Fed. App'x 64, 66-67 [2d Cir. 2013]; Adrianne D. v. Lakeland Cent. Sch. Dist., 686 F.Supp.2d 361, 368 [S.D.N.Y. 2010]; M.C. v. Rye Neck Union Free Sch. Dist., 2008 WL 4449338, *14-*16 [S.D.N.Y. Sept. 29, 2008]; see also "Guide to Quality Individualized Education Program (IEP) Development and Implementation," Office of Special Educ. Mem. [Revised Sept. 2023], available athttps://www.nysed.gov/sites/default/files/programs/special-education/guide-to-quality-iep-development-and-implementation.pdf).  The fact that a student has not made progress under a particular IEP does not automatically render that IEP inappropriate, nor does the fact that an IEP offered in a subsequent school year which is the same or similar to a prior IEP render it inappropriate, provided it is based upon consideration of the student's current needs at the time the IEP is formulated (see Thompson R2–J Sch. Dist. v. Luke P., 540 F.3d 1143, 1153-54 [10th Cir.2008]; Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520, 530 [3d Cir. 1995]; S.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523, at *10 [S.D.N.Y. Dec. 8, 2011]; D.D-S., 2011 WL 3919040, at *12; J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 650 [S.D.N.Y. 2011]).  Conversely, "if a student had failed to make any progress under an IEP in one year, courts have been "hard pressed" to understand how the subsequent year's IEP could be appropriate if it was simply a copy of the IEP which failed to produce any gains in a prior year (Carlisle Area Sch. Dist., 62 F.3d at 534 [noting, however, that the two IEPs at issue in the case were not identical]; N.G. v. E.L. Haynes Pub. Charter Sch., 2021 WL 3507557, at *9 [D.D.C. July 30, 2021]; James D. v. Bd. of Educ. of Aptakisic-Tripp Cmty. Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 827 [N.D. Ill. 2009]).

Contrary to the parents' contention, a comparison of the April 2022 IEP with the March 2024 IEP reveals substantial progress in the student's cognitive, preacademic, communication, motor, social, behavioral, and self-care skills (compare Parent Ex. O, with Dist. Ex. 2). 

Regarding cognitive skills, the March 2024 IEP indicated a marked improvement in the student's ability to follow directives, answer questions using his communication device, and identify objects and concepts with assistance since April 2022, at which time he exhibited a lack of engagement in activities and lessons, and interest in books or stories (compare Parent Ex. O at pp. 2-3, with Dist. Ex. 2 at pp. 1-2).  In terms of pre-academic skills, the 2024 IEP indicated that the student could attend to auditory lessons, answer questions about material presented, identify objects, sort shapes, and work on number concepts with assistance, indicating progress from 2022, at which time he struggled with basic identification, did not turn pages in a book or count objects, and showed minimal interest in academic activities (compare Parent Ex. O at p. 3, with Dist. Ex. 2 at pp. 1-2). 

By 2024, the student had made significant strides in self-care, independently managing some feeding and toileting tasks, whereas in 2022, he required substantial assistance during mealtime and was not toilet-trained at school (compare Parent Ex. O at p. 4, with Dist. Ex. 2 at p. 2).  While the student's functional vision status remains unchanged, he made progress in pre-braille skills and mobility, using a cane and navigating familiar environments with supervision, none of which were noted in the April 2022 IEP (compare Parent Ex. O at pp. 2-4, with Dist. Ex. 2 at p. 2).  Moreover, the March 2024 IEP, which indicated that the student participated in physical activities with supervision, reflected notable progress in the student's motor skills as compared to April 2022, at which time the student required maximal assistance for most motor tasks (compare Parent Ex. O at pp. 2, 4, with Dist. Ex. 2 at pp. 4-6). 

Regarding social skills, the March 2024 IEP indicated that the student greeted peers, enjoyed social interactions, and used his communication device in social settings, reflecting increased social awareness and interaction as compared to April 2022, at which time the student's social interactions were limited to participating in musical activities and smiling at familiar voices (compare Parent Ex. O at p. 4, with Dist. Ex. 2 at p. 3).  In terms of behavior, the March 2024 IEP indicated that the student had fewer tantrums, demonstrating improved self-regulation and self-expression, as compared to April 2022 (compare Parent Ex. O at pp. 3-4, with Dist. Ex. 2 at pp. 3-4).  Lastly, the student's communication abilities advanced from using vocalizations, "approximations and gestures" in 2022 to producing one to six word utterances with a communication device in 2024, enabling more complex interactions (compare Parent Ex. O at pp. 2-3, with Dist. Ex. 2 at p. 1).

Turning to the IEP annual goals, both the April 2022 IEP and the March 2024 IEP included 11 annual goals, along with short-terms objectives, targeting the student's needs in the areas of cognition, receptive language, expressive communication, fine motor skills, gross motor skills, orientation and mobility, and self-care (compare Parent Ex. O at pp. 7-20, with Dist. Ex. 2 at pp. pp. 8-18).  Although some of the annual goals included in the March 2024 IEP were similar to those included in April 2022 IEP (compare Parent Ex. O at pp. 7-20, with Dist. Ex. 2 at pp. pp. 8-18), the record evidence nevertheless belies the parents' contention that the March 2024 IEP goals inadequately addressed the student's then-current needs.   

To address cognition, the April 2022 IEP included a goal targeting the student's ability to "sort various objects with prompting and support" (Parent Ex. O at pp. 18-19).  Similarly, the March 2024 IEP included a goal targeting the student's ability to "correctly match items, by shape or texture, with verbal prompting" (Dist. Ex. 2 at p. 9).  The short-term instructional objective for that goal provided that the student would "correctly match 6 out of 10 items, by shape or texture, with minimal physical assistance and verbal prompting" (id.).  While both IEPs included a goal for sorting and recognizing object attributes, the 2024 IEP provided a more specific and progressive objective (i.e., matching by shape or texture with reduced assistance), targeting incremental independence and accuracy (compare Parent Ex. O at pp. 18-19, with Dist. Ex. 2 at p. 9).

To address receptive language skills, the April 2022 IEP included an annual goal targeting the student's ability to follow "functional single step directives . . . [by] receptively identify[ing] a variety of common object entities, size concepts, texture concepts, and spatial/directional concepts . . . in [eight out of ten] opportunities given moderate multi-modal cues" (Parent Ex. O at p. 10).   Examples included "[s]earch to the left," "[f]ind the spoon," and "[g]ive me the big ball" (id.).  The short-term instructional objective provided that the student would complete the goal with "maximal multi-modal cues" (id.).  The March 2024 IEP carried over the same goal and short-term objective, targeting the student's continuing needs in the area of receptive communication (compare Parent Ex. O at pp. 2-3, 10, with Dist. Ex. 2 at pp. 3, 11).  However, the March 2024 IEP also included an annual goal addressing the student's receptive listening skills, which required him to demonstrate understanding of a story read aloud by answering questions based on the story (Dist. Ex. 2 at pp. 8-9). 

To address expressive communication, the April 2022 IEP included an annual goal targeting the student's ability to answer questions and "make choices to complete a variety of tasks, using his preferred mode of communication, with prompting and support" (Parent Ex. O at p. 19).  The short-term instructional objective provided that the student would "express his wants/needs, [] request an activity/item, or answer a question using his preferred mode of communication" (id. at pp. 19-20).  The April 2022 IEP included another goal designed to improve the student's ability to "use a total communication approach," including the use of tangible cues, verbal approximations, a switch cell device, and gestures, "to mediate his needs across different contexts . . . using [one to two] word utterances in [eight out of 10] opportunities given multi-modal cues" (id. at pp. 8, 9).  The short-term instructional objective provided that the student would complete the goal "using [one to two] word utterances in [six out of 10] opportunities given maximal multi-modal cues" (id.).  Yet another goal targeted the student's ability to "engage in continuous back and forth exchange via play interaction with toys or musical interaction with instruments, responding to clinician or peer's prompts in [four out of five] opportunities given moderate multi-modal cues" (id. at pp. 10-11).   The short-term instructional objective for that goal noted the student would complete the goal "in [three out of five] opportunities given maximal multi-modal cues" (id.).  

With regard to expressive communication, the March 2024 IEP also included an annual goal with a short-term objective targeting the student's ability to "use a total communication approach" (Dist. Ex. 2 at pp. 10-11). While both IEPs emphasized the total communication approach and multi-modal communication methods, the 2024 IEP raised expectations for the student to complete the goal by requiring longer utterances (i.e., three to four words versus one to two words in 2022) and less adult support (i.e., minimal versus moderate assistance) (compare Parent Ex. O at p. 9, with Dist. Ex. 2 at pp. 10-11).  The March 2024 IEP annual goal targeting the student's ability to "engage in continuous back and forth exchange via play" was similar to the goal in the April 2022 IEP; however, included that this skill would occur "during conversation" (Dist. Ex. 2 at p. 12).  Thus, the 2024 IEP broadened the context of exchanges from primarily play or musical routines in 2022 to include conversational exchanges in 2024 (compare Dist. Ex. 2 at p. 12, with Parent Ex. O at pp. 10-11).

To address fine motor development, the April 2022 IEP included an annual goal for the student to "us[e] an efficient grasp with moderate assistance to complete [fine motor] task[s] in [three out of five] trials" (Parent Ex. O at p. 14).  The first short-term instructional objective for that goal provided that the student would "engage in fine motor task[s] with maximal assistance in [four out of five] trials" (id.).  The second short-term instructional objective provided that the student would "use a precision grasp (thumb, index finder) to pick up specified objects one at a time for [five out of eight] trials" (id.).  With respect to fine motor development, the March 2024 IEP included a new goal targeting the student's ability to "pull a zipper up and down on selected items of clothing" or a dressing board "[a]fter a zipper [wa]s placed in a tab" (compare Parent Ex. O at pp. 7-20, with Dist. Ex. 2 at p. 17).  

Citing a 2021 OT evaluation, the parents assert that the student had previously mastered the use of a zipper and, thus, the inclusion of an annual goal targeting use of a zipper indicated regression (Req. for Rev. at p. 4).  Contrary to the parents' assertion, however, the 2021 OT evaluation report stated that the student was "able to zip up and down when the zipper [wa]s initiated" and suggested a goal targeting fastener manipulation (Parent Ex. K at pp. 6, 7).  The evidence in the hearing record provides conflicting information regarding the extent of the student's needs, at the time of the March 2024 CSE meeting, with regard to use of a zipper.  Like the 2021 OT evaluation report, the January 2024 annual education report stated that the student could pull a zipper up and down "but require[d] assistance to engage the zipper" (Dist. Ex. 5 at p. 2).  However, the January 2024 OT annual report stated that the student "require[d] maximum hand-over-hand assistance to successfully zip a zipper up or down" (Dist. Ex. 8 at p. 2).  In any event, the record evidence indicates that the student had not mastered the use of a zipper; and, thus, the addition of an annual goal and short-term objective targeting that skill, with decreasing assistance, appropriately addressed the student's then-current needs. 

To address gross motor development, the April 2022 IEP included an annual goal targeting the student's ability to safely transition within his educational environment with greater independence by "ascend[ing] and descend[ing] the stairs for [two] repetitions" (Parent Ex. O at p. 13).  Similarly, the March 2024 IEP included a goal for the student to safely transition within his educational environment with greater independence by "ascend[ing] and descend[ing] the stairs for [five] repetitions" (Dist. Ex. 2 at p. 14).  Thus the goal changed from two to five repetitions, reflecting progression in endurance or practice expectations between 2022 and 2024 (compare Parent Ex. O at p. 13, with Dist. Ex. 2 at p. 14).   The 2024 IEP also clarified the level of assistance (i.e., minimal) and increased monitoring frequency to monthly rather than quarterly, suggesting a push for more frequent skill acquisition assessment (compare Parent Ex. O at p. 13, with Dist. Ex. 2 at p. 14).  Thus, while both IEPs emphasized stair negotiation as a key goal for the student's independence at school, shared similar structure and measurement criteria, and used the same methodology (i.e., step-over-step method with handrail), the March 2024 IEP set higher performance expectations (compare Parent Ex. O at p. 13, with Dist. Ex. 2 at p. 14).

Additionally, the March 2024 IEP also included an annual goal for the student to develop "strength, balance, and body awareness to function independently within his dynamic school environment" by walking for five minutes (Dist. Ex. 2 at p. 13).  The short-term instructional objective for that goal provided that the student would "walk around or over obstacles in the classroom [for five minutes] without falling" (id.).  The March 2024 IEP included yet another goal for the student "to participate in physical education activities" by "bounc[ing] and catch[ing] a ball for [five] repetitions" (id. at p. 15).  A short-term instructional objective for that goal provided that the student would "bounce pass a medium sized playground ball to a partner [five] times consecutively" (id.).  A second short-term instructional objective provided that the student would "catch a medium sized playground ball from a bounce pass [five] times consecutively" (id.).  Thus, while both IEPs addressed gross motor skills, the 2024 IEP extended expectations in terms of endurance and skill complexity by increasing required durations, repetitions, and integrating activities such as ball handling and walking around obstacles (compare Parent Ex. O at p. 13, with Dist. Ex. 2 at pp. 13-15).   

To address self-care skills, the April 2022 IEP included an annual goal targeting the student's ability to "correctly use food utensils when eating" (Parent Ex. O at p. 16).  The short-term instructional objective provided that the student would "scoop food with a spoon when eating" (id. at p. 16).  The April 2022 IEP included another goal for the student to complete six out of eight handwashing steps with moderate assistance (id. at p. 15).  The March 2024 IEP included the same goal for the student; however, the prompt level for the goal decreased from moderate assistance in the 2022 IEP to minimum assistance in the 2024 IEP (compare Parent Ex. O at p. 15, with Dist. Ex. 2 at p. 16).

Finally, to address orientation and mobility, the April 2022 IEP included an annual goal for the student to "safely travel[] within his environments" by "improv[ing] upon basic orientation and mobility techniques" with moderate assistance in two out of three trials (Parent Ex. O at p. 18).  The March 2024 IEP included a new goal to enhance the student's "orientation concepts about large or complex environments by utilizing tactile maps" (compare Parent Ex. O at p. 18, with Dist. Ex. 2 at p. 18).  The first short-term instructional objective for that goal provided that the student would "proficiently identify the locations of specific objects or rooms" "[w]hen provided with a floor map" (Dist. Ex. 2 at p. 18).  The second short-term instructional objective provided that the student would "locate [two] key elements, such as landmarks and stairs[,]" "[u]sing a route map" (id.). 

In summary, the hearing record does not support the parents' contention that "[t]he IHO should have found a denial of [a] FAPE based on lack of progress and appropriate goals" (Req. for Rev. ¶ 5).    

3.Home-Based Instruction and Related Services

The parents contend that the IHO erred in finding that the district offered the student a FAPE without recommendations for home-based SEIT services (i.e., home-based instruction) and home-based related services of speech-language therapy, OT, and PT.^{[24], [25]}  According to the parents, the IHO explicitly shifted the burden of proof to the parents by reasoning that there was "no evidence in the record . . . that the IEP was inappropriate for not including an at home program" (Req. for Rev. ¶ 4 [internal quotations omitted]).  The parents further argue that the IHO failed to consider the independent evaluations which, according to the parents, were the most recent evaluations; erroneously rejected the testimony of the parents' witnesses due to their supposed pecuniary interests; and failed to analyze whether the CSE's related services recommendations sufficiently addressed the student's needs.  The district asserts that there is no indication from the Lavelle reports, or the IEP itself, that the March 2024 CSE had any reason to believe that the student required home-based instruction and/or home-based related services in addition to the recommended services.  The district also notes that the Lavelle personnel who attended the March 2024 CSE meeting were very well acquainted with the student because he was attending Lavelle at the time.  

First, the IHO's decision does not reflect an improper shifting or misapplication of the burden of proof.  Contrary to the parents' argument "'[t]he sufficiency of the evidence . . . must be determined on the basis of the entire record"' (Roark v. District of Columbia, 460 F. Supp. 2d 32, 39 [D.D.C. 2006], quoting Bahura v. S.E.W. Investors, 754 A.2d 928, 939 [D.C. 2000]); and "neither the IDEA, State [l]aw, nor case law" "require[] that a district call witnesses at the impartial hearing in order to address the parents' due process complaint notice"  (Application of a Student with a Disability, Appeal No. 25-125).     

As discussed above, the March 2024 CSE permissibly relied on three-month-old progress reports from the student's classroom teacher and related services providers, reports which the district presented at the impartial hearing (see Dist. Exs. 3 at pp. 1, 3; 4-9).  Contrary to the parents' assertion, the most current evaluative information presented at the impartial hearing derived from those reports. 

The parents rely on several independent evaluation reports, as well as their witness's opinions, to support their contention that the student required additional, home-based services (see Parent Exs. F at pp. 1, 8; G at pp. 1, 18; I at pp. 1, 12; J at pp. 1, 10-12; K at p. 1; U ¶¶ 23-26, 34-37; V ¶¶ 31-32, 41, 45, 47-49).  However, the independent evaluation reports predate the school reports from Lavelle, and there is no indication that those evaluators had knowledge of the student's needs subsequent to their respective evaluations (compare Parent Exs. F at p. 1; G at p. 1; I at p. 1; J at p. 1; K at p. 1, with Dist. Exs. 4 at pp. 1, 3; 5 at pp. 1, 3; 6; 7 at pp. 1-2; 8 at pp. 1-2; 9 at pp. 1, 3).^[26]  As noted in the IHO's decision, the parents' first witness, the director of Language & Learning Lab, admitted that she had not worked with, evaluated, or observed the student since 2021 (Oct. 25, 2024 Tr. pp. 53-54; IHO Decision at p. 34).  

The parents' second witness, the student's former SEIT services provider, testified that, even though all areas of the student's development were addressed at school, the student needed home-based services in order to master skills across different environments (Oct. 18, 2024 Tr. pp. 5, 16).  She further testified that the instruction she provided to the student at home addressed the application of the same skills that the student practiced at school to a different environment (Oct. 18, 2024 Tr. p. 17).  Both witnesses testified that the student needed home-based OT to generalize daily living skills to the home environment (Oct. 18, 2024 Tr. pp. 21; Oct. 25, 2024 Tr. pp. 51-52).  Yet, courts have held "that school districts are not required, as a matter of course, to design educational programs to address a student's difficulties in generalizing skills to other settings outside of the school environment, particularly where it is determined that the student is otherwise likely to make progress, at least in the classroom setting" (Application of a Student with a Disability, Appeal No. 25-108; see, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; L.K., 2016 WL 899321, at *8-*10 [S.D.N.Y. Mar. 1, 2026);  Luke P., 540 F.3d 1143, at 1152-53; C.M., 2020 WL 3833426, at *21, *28).

Aside from the opinions of the parents' witnesses and the years-old evaluation reports, both of which the IHO permissibly discounted, the hearing record lacks evidence that the student required additional, home-based services to progress educationally.^[27]   The Lavelle reports do not reflect the need for home-based services (see Dist. Exs. 4-9).  Nor is there any indication that either the student's mother or Lavelle personnel expressed such a need during the March 2024 CSE meeting (see Dist. Ex. 2 at pp. 2-6, 28). 

Regarding PT specifically, the parents assert that the student made little to no progress in walking and navigating stairs since his last PT evaluation.  A comparison of the independent PT evaluation report, dated July 10, 2021, with Lavelle's PT annual report reveals that, by December 2023, the student's standing balance and endurance had improved, but he still required close supervision and assistance to ambulate and negotiate stairs (compare Parent Ex. F at pp. 2-7, with Dist. Ex. 7 at pp. 1-2).^[28]  With regard to safe navigation of the school environment, the March 2024 CSE addressed the student's needs by recommending individual PT on a 12-month basis; setting goals designed to increase the student's independence in ambulating and negotiating stairs; recommending a 6:1+2 special class; and noting a management need for "supervision to and from areas/activities outside of the classroom" (Dist. Ex. 2 at pp. 6-7, 13-14, 19-20).  Therefore, while the parents' desire for a faster rate of progress is understandable, the circumstances presented in this matter do not lead me to the conclusion that the student required additional, home-based PT in order to receive a FAPE (see, e.g., M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *11 [finding no denial of a FAPE based on the CSE's failure to recommend a home-based program, noting evidence that the student would make progress without the home-based services, "even if not at the same rate"]; Application of the Bd. of Educ., Appeal No. 24-345 [finding that the district offered the student a FAPE, despite "the parent's dissatisfaction with the student's rate of progress in reading," where the recommended programming was designed to address the student's specific reading needs]).          

Based on the foregoing, I cannot conclude that the IHO erred in applying the burden of proof, in weighing the evidence, or in ultimately determining that the March 2024 IEP offered the student a FAPE (see Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 756 [2d Cir. 2018], cert. denied sub nom., 139 S. Ct. 322 [2018] [stating that "a district is not required to furnish 'every special service necessary to maximize . . . [a student's] potential"']; see, e.g., R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *15 [S.D.N.Y. Sept. 27, 2013] ["While the record indicates that [the student] may have benefited from home-based services, it contains no indication that such services were necessary"], aff'd, 589 Fed. App'x 572 [2d Cir. Oct. 29, 2014]; Application of a Student with a Disability, Appeal No. 20-096 [finding that the CSE's failure to recommend "additional services extending into the student's home environment" did not deny the student a FAPE where such home-based services were sought for the "purpose of generalizing the student's skills into the home setting"]).       

D. Pendency

The parents also ask that an SRO modify the IHO's interim decision on pendency to reflect their requested program.  According to the parents, the IHO should have determined that the student's pendency program included 10 hours per week of home-based SEIT services and increased related services of OT, PT, and speech-language therapy in accordance with an unappealed May 26, 2024 IHO decision.  The district agrees that pendency lies in the May 2024 IHO decision; but, according to the district, the IHO correctly limited the student's pendency services to a 6:1+1 special class at Lavelle, along with educational vision services and teachers for the visually impaired.  The district argues that, although the prior IHO ordered the district to consider incorporating SEIT services into the student's program and consider increasing other services, the actual relief awarded in that case, aside from placement at Lavelle, was compensatory in nature.  According to the district, compensatory services, intended to remedy past FAPE deprivations, "do not constitute an educational program or establish a basis for pendency" (Answer at p. 3).          

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).^[29]  Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]).  The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]).  A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]).  The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906).  Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]).  Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171).  However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]).  Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).

As noted above, the parties do not dispute that an unappealed May 26, 2024 IHO decision provided the basis for the student's pendency program (Aug. 16, 2024 Tr. pp. 48-49, 52; Parent Ex. C; Answer ¶ 4).  Here, the pendency dispute centers on the nature of the relief awarded in that prior IHO decision. 

Upon review, the unappealed May 26, 2024 IHO decision did not order the district to create an IEP that offered home-based SEIT services or that increased the student's related services going forward (see Parent Ex. C at pp. 37-39).  Nor did it order the district to fund compensatory SEIT services (see id.).  Instead, the unappealed May 26, 2024 IHO decision ordered the district to consider incorporating home-based SEIT services into the student's program; "consider[] increasing the [s]tudent's related services;" and continue the recommendation for a 6:1+2 special class, along with educational vision services and teachers for the visually impaired, for the 12-month school year (id. at p. 37 [emphasis added]).  In addition, the unappealed May 26, 2024 IHO decision ordered the district to fund banks of compensatory related services as follows: 115 hours of PT; 69 hours of OT; an additional 46 hours of OT; 115 hours of speech-language therapy; an additional 46 hours of speech-language therapy; and 100 hours of assistive technology training (id. at pp. 37-38).  With regard to implementation, the unappealed May 26, 2024 IHO decision provided that compensatory services shall be scheduled at the parents' and the student's convenience; that "the location, amount, type[,] and frequency" of the awarded services "shall be determined by the provider(s)"; and that such services "shall remain available for use by the [s]tudent until . . . fully exhausted" (id.).  

Pertinently, "not all compensatory education awards [] confer pendency entitlements; [and] each case must be evaluated on its specific facts and circumstances" (Application of a Student with a Disability, Appeal No. 25-530).^[30]  Compensatory relief that prospectively designs "an entire program or placement" "is more likely to be considered a pendency placement in [a] subsequent [proceeding]" (id.).  "Conversely, compensatory education ordered . . . in fixed banks of limited duration or quantity[,] that does not contemplate the entirety of the student's educational programming going forward and merely supplements . . . the programming designs of future IEP(s)[,] . . . is unlikely to serve as a basis for determining pendency or stay put [placement] in a subsequent proceeding" (Application of a Student with a Disability, Appeal No. 25-530; see, e.g.,Application of a Student with a Disability, Appeal No. 25-051; Application of a Student with a Disability, Appeal No. 20-197; Application of a Student with a Disability, Appeal No. 11-091).  "[B]y providing additional services to address past deficiencies," "[t]his type of compensatory education relief functions as a catch-up remedial measure rather than a replacement of the statutory framework, thereby maintaining the integrity of the IEP process going forward" (Application of a Student with a Disability, Appeal No. 25-530).     

As described above, the May 2024 IHO decision only ordered that the district fund fixed quantities of compensatory services (Parent Ex. C at pp. 37-38).  The decision did not specify the frequency or duration of the awarded services; it did not set a time frame for their implementation; and it did not give the district any discretion as to those factors (see id.).  Therefore, "the district's funding of [such] compensatory services cannot be considered an agreement as to the frequency and duration of the delivery of those services, which would be required to support an argument that those services constituted an educational program for the student" (Application of the Dep't of Educ., Appeal No. 20-197; see T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]).  Moreover, consistent with the district's argument, "the parties are not permitted to consider the compensatory services awarded in the [May 2024] IHO [d]ecision in developing future IEPs for the student, as they [we]re awarded to remedy a past violation, rather than to offer the student a FAPE going forward" (Application of the Dep't of Educ., Appeal No. 20-197; see Boose v. Dist. of Columbia, 786 F.3d 1054, 1056 [D.C. Cir. 2015] [noting that an IEP is required to "provide some educational benefit going forward," while the purpose of compensatory education is to "undo[] damage done by prior violations"] [internal quotations omitted]). 3F

I therefore conclude that the student's pendency entitlement does not include home-based instruction and/or increased related services; and the IHO's interim decision on pendency, which determined that the student's pendency program consisted of a 6:1+1 special class at Lavelle along with educational vision services and teachers for the visually impaired, must be affirmed (see, e.g., Application of the Dep't of Educ., Appeal No. 20-197 [finding that an award of fixed quantities of compensatory services, designed  to remedy a past FAPE deprivation, could not serve as the basis for the student's pendency program in a subsequent proceeding]; cf. Application of a Student with a Disability, Appeal No. 25-530 [finding that compensatory relief in the form of a prospective placement at a residential school served as the basis for the student's pendency program in a subsequent proceeding]).

E.Independent Educational Evaluations (IEEs)

Finally, the parents contend that, given the district's failure to evaluate the student within the last three years, the IHO should have ordered IEEs to inform the hearing record.  The parents further contend that the IHO could have ordered IEEs as relief, notwithstanding the IHO's finding that the district offered the student a FAPE.  The district's answer is not responsive to these claims.        

The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]).  Parents may obtain an IEE at public expense by expressing disagreement with an evaluation conducted by the district and requesting that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]).^[31]  If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv).^[32]

As for the parents' claim that the IHO should have ordered IEEs to inform the hearing record, an IHO has the authority to order an IEE at public expense as part of an impartial hearing (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]; Luo v. Owen J. Roberts Sch. Dist., 2016 WL 6831122, at *7 [E.D. Pa. Oct. 27, 2016] [noting that an IHO "is permitted, and in some cases required, to order an [IEE] at public expense"], on reconsideration in part, Luo v. Owen J. Roberts Sch. Dist., 2016 WL 6962547 [E.D. Pa. Nov. 28, 2016], aff'd, 2018 WL 2944340 [3d Cir. June 11, 2018]; Lyons v. Lower Merrion Sch. Dist., 2010 WL 8913276, at *3 [E.D. Pa. Dec. 14, 2010] [noting that the regulation "allows a hearing officer to order an IEE 'as part of' a larger process"]).   However, an IHO's authority to direct an evaluation is not unlimited (see S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 [D.R.I. Jan. 14, 2014] [acknowledging opinion that the regulation empowers hearing officers to solicit independent expert opinions but disagreeing that the regulation gives an IHO "the inherent power to make up remedies out of whole cloth"], aff'd, 773 F.3d 344 [1st Cir. 2014]; see, e.g., Application of a Child with a Disability, Appeal No. 04-012; Application of a Child with a Disability, Appeal No. 96-13).  Such authority has been described as that which can be exercised when additional evaluative data is necessary to determine an appropriate educational placement (see Application of a Student with a Disability, Appeal No. 10-100; Application of a Student with a Disability, Appeal No. 08-001; Application of a Child with a Disability, Appeal No. 96-13; Evergreen Sch. Dist., 106 LRP 18815 [SEA WA 2006] [noting that the authority to order IEEs is a corollary of the IHO's obligation to develop an adequate record on which to base a decision]; In re Student with a Disability, 102 LRP 8250 [SEA AK 2001]; Teaneck Bd. of Educ., 17 IDELR 142 [SEA NJ 1990]).  An IHO's authority to direct an evaluation has also been described as a matter committed to the IHO's discretion (see Application of a Child Suspected of Having a Disability, Appeal No. 07-042; Application of a Child with a Disability, Appeal No. 01-076; Application of the Bd. of Educ., Appeal No. 00-090 [finding that "there was a rational basis" for the ordered testing, "which would have been useful"]; In re Student with a Disability, 106 LRP 31162 [SEA NM 2005]), or as a hybrid of necessity and discretion (see Application of a Child with a Disability, Appeal No. 07-057; North Chicago Community Unit Sch. Dist. 187, 34 IDELR 25 [SEA IL 2000]). 

As for the parents' claim that the IHO should have ordered IEEs as relief, "IHOs are 'granted broad authority in their handling of the hearing process and [in] determin[ing] the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying [the] IDEA"' (Application of a Student with a Disability, Appeal No. 24-510, quoting Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]; see also Application of the Dep't of Educ., Appeal No. 12-033).

First, an interim order for IEEs was not needed to inform the hearing record in this case.  Although the district had not formally evaluated the student within the previous three years, the district presented recent progress reports from the student's classroom teacher and related services providers (Dist. Exs. 4-9).  Thus, as discussed above, the hearing record contained sufficient evaluative information to enable the IHO to assess the substantive adequacy of the March 2024 IEP.  Moreover, the parents were not entitled to any relief, as the hearing record supports the IHO's determination that the March 2024 IEP offered the student a FAPE.  Therefore, under the circumstances of this case, I do not find that the IHO's failure to order IEEs, either on an interim basis or as relief, was an abuse of discretion (see, e.g.,  Application of a Student with a Disability, Appeal No. 25-066 [rejecting the parents' claim that the IHO should have ordered IEEs as equitable relief where "the hearing record support[ed] the IHO's determination that the design of the student's IEPs did not deny the student a FAPE for the" school years at issue]; cf. Application of the Dep't of Educ., Appeal No. 12-033 [finding that the IHO properly exercised his authority to order independent evaluations where the hearing record lacked sufficient evaluative information]).   

The district is reminded of its obligation to evaluate the student on a triennial basis (see 8 NYCRR 200.4[b][4]; 34 CFR 300.303[b][1]-[2]). 

VII. Conclusion

In conclusion, the parents' arguments and the hearing record, as a whole, do not present a basis to overturn the IHO's determination that the district offered the student a FAPE for the 2024-25 school year; to modify the IHO's pendency order; or to award funding for IEEs.  

I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations above.^[33]

THE APPEAL IS DISMISSED.

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Footnotes

[1] The student's eligibility for special education as a student with multiple disabilities is not in dispute (see 34 CFR 300.8[c][7]; 8 NYCRR 200.1[zz][8]).

[2] Participants in the March 2024 CSE meeting included the student's mother, a district representative, a bilingual social worker, the IEP coordinator at the student's school, the student's classroom teacher, and a Spanish interpreter (see Dist. Ex. 2 at pp. 28-29). 

[3] The parents requested additional services, on a 52-week basis, as follows: 10 hours per week of home-based 1:1 instruction; one 60-minute session per week of home-based parent counseling and training; two 30-minute sessions per week of individual, home-based PT; two hours per week of assistive technology training; and toilet training (see Parent Ex. D at pp. 16-17).   

[4] The hearing record includes transcripts that were not consecutively paginated.  The transcripts for the prehearing conference, the pendency hearing and the first date of the impartial hearing were consecutively paginated.  The impartial hearing continued on October 18, 2024, and this transcript begins with page 1.  The IHO noted in her decision that there was a change in transcription service providers for the October 18, 2024 impartial hearing date (IHO Decision at p. 14 n.5).  For clarity, all transcripts will be cited by the date and corresponding page number.

[5] The district did not file a response to the parents' motion for recusal.  In an email to the IHO and the parents' counsel, the district's counsel indicated that the district took no position on the parents' motion (IHO Ex. III at p. 2). 

[6] Parent Exhibits C and D were admitted into evidence during the pendency hearing (Aug. 16, 2024 Tr. pp. 45-52).  Parent Exhibits E through L, N, O, R, T, U, and V were admitted into evidence during the merits hearing (see Sept. 19, 2024 Tr. pp. 99-107, 112-13, 130-31).  Proposed Parent Exhibit A was marked for identification during the pendency hearing but never admitted into evidence (see Aug. 16, 2024 Tr. pp. 45-52; Sept. 19, 2024 pp. 99-107, 112-13, 130-31).  Proposed Parent Exhibits P and S were withdrawn by the parents as duplicative of district exhibits (Sept. 19, 2024 Tr. pp. 103-105, 117, 130).  Proposed Parent Exhibits B, M, and Q were excluded by the IHO as irrelevant (Sept. 19, 2024 Tr. pp. 45-52, 107, 112, 118, 130).      

[7] District Exhibits 2 through 9 were admitted into evidence (Sept. 19, 2024 Tr. pp. 106-107).  The IHO initially admitted District Exhibits 1 through 9 but later struck District Exhibit 1 as duplicative of Parent Exhibit D, an exhibit previously admitted during the pendency hearing (see Aug. 16, 2024 Tr. pp. 46, 51; Sept. 19, 2024 Tr. 98, 105-107). 

[8] According to the IHO, the parents' counsel "was unprepared, unable to answer questions[,] and unprofessional" (IHO Decision at p. 23).

[9] The IHO noted that the March 2024 CSE meeting was attended by a parent, a district representative and school psychologist, a bilingual social worker, two representatives from the student's school, and an interpreter (IHO Decision at p. 30). 

[10] The IHO noted that the parents sought to extend home-based services beyond the 12-month school year, which she determined was 42 weeks long (IHO Decision at p. 34).

[11] The IHO explained that she "need not consider the remaining two prongs of the" Burlington/Carter three-pronged test, having determined that the district offered the student a FAPE for the school year at issue; however, the IHO also noted that she would have found that the requested at-home program was not appropriate for the student (see IHO Decision at p. 35 & n.12)

[12] 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).

[13] The letter indicates that an independent review substantiated the following allegations: the IHO "regularly interrupted the parents' attorney and did not allow her to provide important details to questions asked," and the IHO "questioned the parent attorney's professionalism during the hearing and accused her of improperly handling the case" (Proposed SRO Ex. A at p. 1). 

[14] Challenges to the change from use of per diem IHOs to OATH IHOs have been unsuccessful (see Gronbach et. al v. New York State Educ. Dep't et.al, Index No. 910574-21 [N.Y. Sup. Ct. Alb. Cnty. August 22, 2022]; J.F. v. v. Adams, 2024 WL 1348524, at *2, 8-12 [S.D.N.Y. Mar. 29, 2024]).  In J.F. v. Adams, the court dismissed the plaintiffs' claim that OATH IHOs are biased as a matter of law, based solely on their employment with the City of New York, as the plaintiffs "presented [no] compelling evidence to [support] [] a distinction [between] the impartiality of per diem IHOs and OATH IHOs" (2024 WL 1348524, at *8-9, 12).  

[15] The hearing record reveals that, if an attorney failed to answer a question from the IHO in precisely the manner that the IHO desired, the IHO would become frustrated, often interrupting and demanding preparedness (see Aug. 8, 2024 Tr. pp. 5-22, 31-36, 38-39; Aug. 16, 2024 Tr. pp. 46, 49, 52-53, 57-58, 61-62; IHO Ex. I at pp. 1-2).  The IHO is cautioned that arguing with the attorneys who appear before her does not lead to greater clarity in the hearing record.       

[16] Ordinarily, which party bore the burden of persuasion in the impartial hearing becomes relevant only if the case is one of those "very few" in which the evidence is equipoise (Schaffer, 546 U.S. at 58; Reyes v. New York City Dep't of Educ., 760 F.3d 211, 219 [2d Cir. 2014]; M.H., 685 F.3d at 225 n.3; T.B. v. Haverstraw-Stony Point Cent. Sch. Dist., 933 F. Supp. 2d 554, 565 n.6 [S.D.N.Y. 2013]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *5 [S.D.N.Y. Mar. 19, 2013]; see F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 4 [2d Cir. Jan. 8, 2014]).

[17] The OT annual report bears the date of January 1, 2023; however, based on its statement of the student's age and the dates of the other Lavelle reports, it appears that the OT annual report was prepared on or around January 1, 2024 (Dist Ex. 8 at pp. 1-2).

[18] I note that the parents have not challenged the content of the student's present levels of performance and, in arguing that the CSE's recommendations were inadequate, rely on independent evaluations that predate the Lavelle reports used by the CSE (compare Parent Exs. F at p. 1; G at p. 1; I at p. 1; J at p. 1; K at p. 1, with Dist. Exs. 4 at pp. 1, 3; 5 at pp. 1, 3; 6; 7 at pp. 1-2; 8 at pp. 1-2; 9 at pp. 1, 3).

[19] While the subject IEP reflects specific parental concerns, it does not indicate that the student's mother expressed the student's alleged need for after-school/home-based services (see Dist. Ex. 2 at p. 3).

[20] According to the March 2024 IEP, the Vineland Adaptive Behavior Scales were administered to the student in 2022, yielding an adaptive behavior composite score of 20 and a percentile rank of less than one in both the classroom and interview editions (Dist. Ex. 2 at p. 1). 

[21] The annual education report noted that, "[t]he SANDI assessment is a specially designed comprehensive summative and formative alternate assessment for students with significant disabilities[,] given annually to measure progress" (Dist. Ex. 5 at p. 1). 

[22] The annual education report indicated that the student's performance in the fine motor and activities of daily living categories of the SANDI resulted in scores of 53 and 106, respectively, scores which reflect no applicable level (Dist. Ex. 5 at p. 1).

[23] 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]).

[24] State law defines SEIT services (or, as referenced in State regulation, "Special Education Itinerant Services" [SEIS]) as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "[SEIS] for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available athttps://www.nysed.gov/special-education/special-education-itinerant-services-preschool-children-disabilities).  SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii]; see Educ. Law § 4410[1][k]).  Although the student was not in preschool during the school year at issue (see Dist. Ex. 5 at p. 1), the parents' counsel sometimes referenced the requested home-based instruction as "SEIT" in the due process complaint notice, the request for review, and throughout the administrative proceedings (see Aug. 16, 2024 Tr. p. 59; Parent Ex. D at pp. 4-5, 17; IHO Ex. XI at pp. 2-3; Req. for Rev. at pp. 2, 9). 

[25] An IEP must include a statement of the related services recommended for a student based on such student's specific needs (8 NYCRR 200.6[e]; see 20 U.S.C. § 1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]).  "Related services" is defined by the IDEA as "such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education" (20 U.S.C. § 1401[26][A]; see 34 CFR 300.34[a]; 8 NYCRR 200.1[qq]).

[26] To be clear, the older evaluations included the PT evaluation report with a date of evaluation of July 10, 2021 (Parent Ex. F); the speech-language evaluation with a date of evaluation of January 8, 2022 (Parent Ex. G); the cognitive ability and educational achievement evaluation with dates of evaluation including July 26, 2021 and August 2, 2021 (Parent Ex. J); and the OT evaluation with a date of evaluation of November 13, 2021 (Parent Ex. K) whereas the school reports from Lavelle include an orientation and mobility annual report, with a date of report of December 27, 2023 (Dist. Ex. 4); an annual education report, with a date of report of January 21, 2025 (Dist. Ex. 5); an adaptive physical education report, with a date of report of December 19, 2023 (Dist. Ex. 6); a PT annual report, with a date of report of December 13, 2023 (Dist. Ex. 7); an OT annual report, with a date of report of January 1, 2023 (Dist. Ex. 8); and an annual speech-language report, with a date of report of December 26, 2023 (Dist. Ex. 9).

[27] 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 Scott P., 62 F.3d at 524, 528-29; 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).

[28] According to the July 2021 independent PT evaluation report, the student exhibited poor static and dynamic balance, poor motor control, and poor spatial awareness, as well as foot misalignment; and, consequently, the student relied on close supervision and assistance to ambulate and negotiate stairs (Parent Ex. F at pp. 2-7).  According to the December 2023 PT annual report, the student exhibited fair standing balance and improved endurance; but he required close supervision to navigate his school environment and assistance to negotiate stairs (Dist. Ex. 7 at pp. 1-2). 

[29] In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (see Ventura de Paulino, 959 F.3d at 532-36).

[30] Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).  Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]).  The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; Newington, 546 F.3d at 123 [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see also E. Lyme, 790 F.3d at 456; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).  Likewise, SROs have awarded compensatory services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. of City Sch. Dist. of Buffalo v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep . Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

[31] Guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, "the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs" (Letter to Baus, 65 IDELR 81 [OSEP 2015]; see Letter to Carroll, 68 IDELR 279 [OSEP 2016]).

[32] If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]).  Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]).  The Second Circuit Court of Appeals has recently found that, if a district and a parent agree that a student should be evaluated before the required triennial evaluation "the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs" or "[o]therwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation" (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 [2d Cir. 2020]).

[33] Although it is unnecessary to do so, I will briefly address the parents' contention that the IHO erred in using the Burlington/Carter framework to assess whether the parents were entitled to the requested relief.  Rather than applying the Burlington/Carter three-pronged test, the IHO should have used a compensatory education approach, as the student did not receive unilaterally-obtained services during the 2024-25 school year (see Oct. 18, 2024 Tr. p. 9; Oct. 25, 2024 Tr. p. 53; Parent Exs. D at p. 17; V ¶¶ 32, 50-51, 55; Ventura de Paulino, 959 F.3d at 526 ["Parents who are dissatisfied with their child's education [may] . . . pay for private services, including private schooling" and then "obtain retroactive reimbursement from the school district[,] after the IEP dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test").