STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-185
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Law Office of Courtney L Haas LLC, attorneys for petitioner, by Courtney Haas, 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. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO), in which the parent alleges that the IHO ordered an incorrect amount of relief for the 2024-25 school year due to a technical error. Respondent (the district) cross-appeals from evidentiary rulings made by the IHO during the impartial hearing. The appeal must be dismissed, and the matter remanded to the IHO for clarification. The cross-appeal must be sustained in part.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed, and given the disposition of this matter, the facts and procedural history of the case will not be recited in detail. Briefly, according to the parent, the student has diagnoses of a microproduction of a chromosome, autism, attention deficit hyperactivity disorder-combined type, an anxiety disorder, and a specific learning disability (Parent Ex. O ¶ 2). The hearing record indicates that the student attends public schools and began receiving applied behavior analysis (ABA) from the Language and Learning Lab LLC (private agency) in April 2023 (id. ¶ 11).
A. Due Process Complaint Notice and Subsequent Events
In a due process complaint notice dated August 19, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year because an October 2023 CSE failed to offer sufficient behavioral support for the student, failed to recommend ABA, failed to recommend supervision by a board certified behavior analyst (BCBA), failed to recommend sufficient parent counseling and training, and because the district predetermined the outcome of the October 2023 CSE meeting by creating a policy that prohibited the CSE from recommending ABA services (Parent Ex. A at pp. 1, 3).[1] Among the relief requested, the parent sought a finding that the district failed to offer the student a FAPE for the 2024-25 school year and an order directing the district to fund "ABA during the school day to be supervised by" a BCBA and two hours of parent counseling and training per month (id. at p. 3). Additionally, the parent asserted that the student's pendency placement should be based on a prior IHO decision dated February 28, 2023, which ordered the district to fund ABA services "throughout the school day" for the student that were supervised by a BCBA, as well as two hours of parent counseling and training per month (id. at p. 1).
A CSE convened on October 8, 2024, and, after finding the student eligible for special education as a student with autism, developed an IEP with a projected implementation date of October 14, 2024 (Dist. Ex. 1). The October 2024 CSE recommended that the student receive integrated co-teaching (ICT) for eight periods per week for math and English language arts, two periods per week for social studies, and four periods per week for science (id. at pp. 17-18). The October 2024 CSE also recommended that the student receive one 30-minute session per week of counseling services in a group of three, the support of a full-time daily individual behavioral support paraprofessional, and the use of several assistive technology devices, as needed (id. at p. 18).
By prior written notice dated October 15, 2024, the district informed the parent of the October 2024 CSE's recommendations (Dist. Ex. 2).
B. Impartial Hearing Officer Decision
The parties proceeded to an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH).[2]
In a decision dated February 19, 2025, the IHO found that the district did not sustain its burden to establish that it offered the student a FAPE for the 2022-23 and 2023-24 school years because it did not call a witness to attest to the appropriateness of the student's IEP nor did it demonstrate the sufficiency of the recommended parent counseling and training (IHO Decision at pp. 1, 4-5).[3] The IHO also found that the parent's unilateral "program" was appropriate for the student (id. at pp. 6-7). The IHO further found that the $300 hourly rate charged by the student's private agency was "objectively unreasonable" and therefore reduced the rate awarded to the parent for unilateral services to $200 per hour, which the IHO indicated was "still more than double [than] what [was] paid to the" student's private provider (id. at p. 7).
The IHO ordered the district to fund 30 hours of ABA therapy and two hours of BCBA supervision per month at a rate not to exceed $200 per hour for the 2024-25 school year (IHO Decision at pp. 7-8). The IHO also ordered the district to reimburse and directly fund the student's private ABA and BCBA providers within 45 days of submission of proof of services rendered, as well as to fund two hours per month of parent counseling and training at a rate not to exceed $200 per hour for the entirety of the 2024-25 school year (id. at p. 8).
IV. Appeal for State-Level Review
In an appeal, the parent contends that the IHO made a technical mistake in the decision when she ordered the district to fund 30 hours per month of ABA services for the student for the 2024-25 school year, as opposed to the 30 hours of ABA services per week that the parent requested. The parent asks that the IHO's decision be corrected to reflect an award of 30 hours per week of ABA therapy for the student while to leave in place the remaining ordered relief of two hours per month of BCBA supervision and two hours per month of parent counseling and training.
In an answer and cross-appeal, the district contends that this matter should be remanded, and the IHO directed to issue a revised subpoena, recall a witness, and clarify the relief awarded. The district alleges that the IHO erred by refusing to sign the district's document subpoena request, rejecting the district's request to reopen the hearing record to explore potential fraudulent activity by the student's private provider, and rushing the issuance of the decision which resulted in multiple errors. The district contends that the IHO abused her discretion, prevented the district from exercising its due process rights, and violated the State Education Department's directive that IHOs ensure the accuracy of their decisions. The district asks that the parent's appeal be dismissed and that the matter be remanded to the IHO.[4], [5]
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]).[6]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
First, neither party appeals the IHO's determinations that the district failed to offer the student a FAPE, that the private services obtained by the parent were appropriate for the student, and that equitable considerations warranted a reduction in the rate of the student's private providers (IHO Decision at pp. 4-7). Accordingly, these findings have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
Next, turning to the district's arguments on cross-appeal that the IHO erred in refusing to sign a revised documentary subpoena and to reopen the impartial hearing for a limited cross-examination of a witness, I note that 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. Additionally, an IHO has the authority to issue a subpoena if he or she deems it necessary to development of the hearing record (see 8 NYCRR 200.5[j][3][iv]).
With respect to the subpoena, the district submitted the original documentary subpoena in advance of the September 24, 2024 prehearing conference, at which time the IHO indicated that the subpoena was overly burdensome, as there was "a ton of information that[ was] requested of the school" (see Sept. 24, 2024 Tr. pp. 5-6; see also IHO Ex. I; SRO Ex. 1 at p. 2). The IHO offered to revise the subpoena herself or to allow the district to revise it to make it less burdensome and more relevant (Sept. 24, 2024 Tr. pp. 6-9). The district elected to revise the subpoena itself and resubmit it to the IHO (Sept. 24, 2024 Tr. p. 9). The district asserts that on October 4, 2024, it submitted to the IHO, via email, a revised document subpoena (see SRO Ex. 1 at p. 1; SRO Ex. 2; Answer and Cross-Appeal ⁋ 3). The revised subpoena sought several types of documents from the private agency that broadly related to: agreements with the parent, fees charged and payments made, applications of the student, evaluative information and data collected on the student, materials used in parent counseling and training sessions, information and credentials of the student's providers, the student's attendance, curriculum created by the agency, and any communications between the student's school teachers and the agency (SRO Ex. 2 at pp. 1-2). The IHO responded on October 4, 2024, indicating that she could not sign the district's revised subpoena as "it [was] still burdensome," and she asked the district to "[p]lease . . . not resubmit" a revised subpoena (SRO Ex. 1 at p. 1).
The district contends that the IHO, by refusing to sign the revised subpoena, as well as by "refusing to provide any rationale . . . other than providing the conclusory statement that it was 'burdensome,'" failed to ensure that the hearing record was accurate, abused her discretion, and deprived the district of its due process rights by precluding it from presenting evidence. I do not find a sufficient basis in the hearing record to overturn the IHO's determination to not issue the revised document subpoena, particularly absent justification by the district of how the requested information was relevant and when the district on appeal has not sought to overturn any of the IHO's findings. Here, there was ample evidence in the hearing record related to the private agency's involvement with the student, including a progress report, a private functional behavioral assessment conducted by the agency, a behavior intervention plan created by the agency, and the resumes of the student's behavioral provider and the private agency's director (see Parent Exs. F, I, J-L). Additionally, the director and the student's behavioral provider both testified by affidavit and during the impartial hearing (see Parent Exs. N, O; Nov. 26, 2024 Tr. pp. 22-48). The district availed itself of the opportunity to cross examine both these witnesses (Nov. 26, 2024 Tr. pp. 25-36, 40-48). As discussed above, IHOs are provided with broad discretion in conducting impartial hearings, as long as each party is provided a meaningful opportunity to exercise their rights. Here, the district has not argued how its rights were harmed other than its conclusory statement that it was precluded from presenting evidence. Accordingly, I do not find a sufficient basis to determine that the IHO's decision to not sign the district's revised subpoena due to her belief that it was overly burdensome was an abuse of the IHO's broad discretion.
Turning to the district's arguments regarding the denial of its request to reopen the impartial hearing, the district sent an email to the IHO on February 18, 2025, approximately three months after the conclusion of the impartial hearing (but prior to the issuance of the IHO's decision), indicating that the district recently learned of allegations of forged timesheet documents by the student's private provider, and asked that the assistant principal of the student's district school be recalled as a witness for limited questioning related to the allegations (SRO Ex. 3 at p. 2). The district representative alleged that the potential fraud had "implications for the relief requested" by the parent, as well as for the "scope of the pending final [IHO] decision" (id.). Counsel for the parent responded on February 18, 2025, through email, objecting to the "allegations" and the district's request for additional questioning (id. at pp. 1-2). The IHO, responding via email on February 19, 2025, indicated that the district already had an opportunity to question the assistant principal, and she declined to "schedule an additional day of testimony," and that she would be "closing the [hearing] record" that day (id. at p. 1). The IHO subsequently issued her decision in this matter on February 19, 2025 (SRO Ex. 4; see IHO Decision at p. 1). The district contends that this was an abuse of discretion and deprived the district of exercising its rights during the impartial hearing to present evidence, confront witnesses, and ensure that the hearing record was complete.
Based on the hearing record and the district's arguments on cross-appeal, I do not find a sufficient basis to disturb the IHO's decision to decline to recall a witness three months after the conclusion of the impartial hearing. As discussed above, there was evidence and testimony in the hearing record which the district could have challenged, at the time of the impartial hearing, with respect to its accuracy and reliability or explored with respect to its potential relevance to equitable considerations. Indeed, the district cross-examined the student's private behavioral provider concerning how often she was working with the student (Nov. 26, 2024 Tr. pp. 25-26, 37), and cross-examined the private agency's director on the process the agency used to keep track of whether services were provided to students, through the use of monthly service forms, as well as with respect to the agency's process for provider session notes (Nov. 26, 2024 Tr. pp. 44, 47). Additionally, in reviewing the district's request to the IHO, I find that it is unclear what the district would have been seeking through the additional questioning of the district's assistant principal, and how that witness was related to the broad allegations of potential fraud by the private provider (see SRO Ex. 3 at p. 2). The district's request to the IHO did not provide any specificity as to what evidence additional questioning of the assistant principal would potentially elicit, and how that would have a bearing on the parent's claims, thereby giving the impression of a fishing expedition based on vague and potentially speculative allegations of "fraud." In light of the above, I do not find a sufficient basis in the hearing record to find that the IHO abused her discretion by denying the district's request, or that doing so deprived the district of it due process rights during the impartial hearing, given the broad discretion IHOs are afforded in conducting impartial hearings and in developing the hearing record.
Turning to the parent's contentions on appeal, she asserts that the IHO mistakenly ordered the district to fund 30 hours of ABA services per month, as opposed to ordering the 30 hours per week requested by the parent. The parent asks that the IHO's decision be corrected. The district opposes, contending that this matter should be remanded to the IHO because, among other things, there were multiple alleged errors in the IHO's decision due to the IHO rushing the issuance of the decision, and the IHO should be directed to clarify the relief awarded to the parent.
The parent's due process complaint notice asked that the district be ordered to fund "ABA during the school day to be supervised by a [BCBA]" (Parent Ex. A at p. 3). Further, the parent's counsel indicated in her opening statement during the impartial hearing that the parent was requesting, among other things, a "continuation of the 30 hours per week of ABA services" (Nov. 26, 2024 Tr. p. 10 [emphasis added]). Additionally, the IHO indicated in her decision that the parent sought, among other things, a "continuation of the 30 hours per week of ABA services with BCBA supervision" (IHO Decision at p. 4 [emphasis added]). The IHO ordered the district to: "[f]und thirty (30) hours of ABA therapy and two (2) hours of BCBA supervision monthly . . . " (id. at p. 8 [emphasis added]). There is no discussion in the IHO's decision with respect to why ABA services were reduced in her decision to a monthly increment as opposed to the weekly services that the parent requested.
When an IHO has not addressed claims set forth in a due process complaint notice, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims that the IHO did not address (8 NYCRR 279.10[c]; see Educ. Law § 4404[2]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 589 [S.D.N.Y. 2013] [indicating that the SRO may remand matters to the IHO to address claims set forth in the due process complaint notice that were unaddressed by the IHO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]; see also D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]).
Here, the parties are not in agreement that the IHO's decision contains a merely typographical error in the ordering clause with respect to the frequency of the awarded ABA services (cf. Application of a Student with a Disability, Appeal No. 24-622 (modifying the IHO's decision to reflect the correct award as supported by the hearing record and when both parties agreed the IHO's decision contained a mistake); Application of a Student with a Disability, Appeal No. 24-054). Upon an independent review of the hearing record, it is unclear why the frequency of the student's requested ABA services were reduced by the IHO, and whether this is attributable to a "technical error," as the parent asserts. As I am unable to make that determination based on the hearing record before me and given the district challenges the parent's assertion of a mistake, this matter must be remanded to the IHO for the limited purpose of clarifying the frequency of the awarded ABA services. I leave the determination of whether any additional evidence is required for the sole purpose of the above clarification to the IHO's sound discretion on remand. I also leave it to the sound discretion of the IHO on remand as to whether she deems it appropriate to revisit and correct any minor typographical errors in the decision, such as those alleged by the district on cross-appeal.
VII. Conclusion
In sum, I do not find a sufficient basis to disturb the IHO's findings based upon the broad discretion afforded to her in conducting the impartial hearing, with respect to the determinations to not grant the district's revised subpoena and to not grant the district's request to recall a witness after the conclusion of the impartial hearing. Additionally, as I am unable to determine if the IHO's ordering of a reduced frequency of ABA services to the student was done in error, this matter will be remanded to the IHO in order to clarify the frequency of relief to be awarded to the parent. Additionally, upon remand, the IHO may correct any typographical errors in the decision, in her discretion.
I have considered the parties' remaining contentions and find the necessary inquiry at an end.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED WITH RESPECT TO REMAND FOR CLARIFICATION.
IT IS FURTHER ORDERED that the matter is remanded to the IHO to clarify the frequency of ABA services to be awarded for the 2024-25 school year, as well as, in her discretion, to correct any minor typographical errors in the original decision.
IT IS FURTHER ORDERED that in the event that the IHO cannot hear this matter upon remand, another IHO shall be appointed.
Footnotes
[1] While the due process complaint notice references an October 2023 IEP, a copy of this IEP was not entered into the hearing record (see Nov. 26, 2024 Tr. p. 9).
[2] The transcripts in the hearing record are not consecutively paginated. Accordingly, all references to the transcripts will include the date of the proceeding.
[3] While the IHO decision references the 2022-23 and 2023-24 school years, as noted above, the parent's due process complaint notice alleged a deprivation of a FAPE for the 2024-25 school year, which the IHO also noted in her introductory paragraph of the decision (see IHO decision at p. 1; Parent Ex. A at p. 3)
[4] The district also submits four documents as proposed additional evidence for the hearing record, marked as SRO Proposed Exhibits 1 through 4 (hereinafter SRO Exhibit or SRO Ex.). SRO Exhibit 1 is a string of emails related to the district's subpoena requests to the IHO, which date from September 24, 2024 through October 4, 2024. SRO Exhibit 2 is a copy of a revised subpoena request that the district submitted to the IHO. SRO Exhibit 3 is a string of emails discussing the district's request to reopen the impartial hearing, dating between February 18, 2025 and February 19, 2025. Finally, SRO Exhibit 4 is the email from the IHO to the parties issuing the IHO decision, dated February 19, 2025. 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]). While some of the district's proposed additional evidence may have been offered at the time of the impartial hearing, I will nonetheless exercise my discretion and allow the entry of the proposed evidence, as I find it is necessary to render a decision on the matters raised by the district on appeal and, moreover, the documents otherwise should have been included in the record as they relate to disputed "rulings" by the IHO (8 NYCRR 279.9[a] [hearing record should include "a copy of any written interim orders, rulings, or decisions rendered by the impartial hearing officer").
[5] The parent has also filed an answer to the cross-appeal, titled "Verified Reply to Cross Appeal," however, a verification has not been included with the pleading, as required (8 NYCRR 279.7[b]). In general, the failure to comply with the practice requirements of Part 279 of the State regulations may result in the rejection of the submitted documents (8 NYCRR 279.8[a]; see T.W. v. Spencerport Cent. Sch. Dist., 891 F. Supp. 2d 438, 440-41 [W.D.N.Y. 2012] [upholding dismissal of a petition for review that was untimely and exceeded page limitations]). Here, in the exercise of my discretion, I will not accept the parent's unverified response to the district's cross-appeal.
[6] 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).