STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-192
Application of a STUDENT WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
The Law Offices of Neal H. Rosenberg, attorneys for petitioners, by Meredith Duchon, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Nicole Daley, 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 the costs of their daughter's private services delivered by Yeled v'Yalda ECC (Yeled) for the 2023-24 and 2024-25 school years. The district cross-appeals from that portion of the IHO's decision which found that it failed to meet its burden to establish that it offered a free appropriate public education (FAPE) to the student for the 2024-25 school year. The appeal must be dismissed. The cross-appeal must be sustained.
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 student has received diagnoses of autism and tuberous sclerosis with seizure activity and attended a nonpublic school during the 2023-24 and 2024-25 school years (see Parent Exs. G; R; Dist. Exs. 9 at p. 1; 10 at p. 1). Aside from the mention of two IEP meetings, the student's educational history between 2015 and 2023 is sparse in the hearing record.
On November 18, 2015, a Committee on Preschool Special Education (CPSE) reconvened, and after continuing to find the student eligible for special education services as a preschool student with a disability, developed an IEP with a projected implementation date of November 30, 2015 (Parent Ex. D). The CPSE recommended that the student receive 12-month programming that consisted of 15 hours per week of individual special education itinerant teacher (SEIT) services, three 30-minute sessions per week of individual speech-language therapy, four 30-minute sessions per week of individual occupational therapy (OT), four 30-minute sessions per week of individual physical therapy (PT), two 45-minute sessions per week of individual vision therapy, and that she also receive individual health paraprofessional services five days per week for a period of 240 minutes (id. at pp. 1, 25).
According to the parent, a CSE convened on February 6, 2019 and developed an IEP for the student that recommended a "bilingual Yiddish 12:1:1 classroom as well as related services," which the district also indicated was the operative IEP at the beginning of the 2023-24 school year (Jan. 22, 2025 Tr. p. 50; Parent Ex. K ¶¶ 1, 3).[1]
On May 16, 2023, the student's mother entered into a contract with Yeled for the provision of "Special Education and/or Related Services," in which Yeled would do its "best to provide [the student] with all the services they [were] entitled to" (Parent Ex. C). Yeled was to provide the unspecified services to the student between September 1, 2023 through June 30, 2024 (id.). Additionally, the mother "agree[d] to seek payment for services rendered and to be paid directly to [Yeled] from the [district]" but she acknowledged and agreed that it was the parents' responsibility to remit payment to Yeled (id.). The agreement specified that Yeled charged a rate of $198 per hour for special education services and $250 per hour for related services (id.).
The district conducted a psychoeducational assessment of the student on June 15, 2023, as part of the student's three-year reevaluation (Dist. Ex. 9).
By letter dated August 23, 2023, the mother informed the district that she disagreed with the February 2019 CSE's recommendations, as, among other things, the parents believed that the student required a program that provided 1:1 support while allowing the student access to nondisabled peers, such as the 15 hours of SEIT services she had previously received (Parent Ex. B at p. 1). Specifically, she asserted that the student had been receiving 15 hours of "SEIT support," that the student had been making progress, and that she continued to "require a program that [could] provide th[at] level of intensive 1:1 support" (Parent Ex. B at p. 1). She also indicated that a CSE had not convened to discuss an appropriate program for the 2023-24 school year, and she alleged that she had not received an assigned public school site for the student (id.). She stated that "until an appropriate IEP and placement recommendation" was made, the parents would have no other choice than to continue the student's SEIT and related services at district expense (id.).
A CSE convened on October 31, 2023, and, after finding the student eligible for special education services as a student with autism, developed an IEP with an implementation date of October 31, 2023 (Dist. Exs. 2 at p. 1; 3 at p. 1; 4 at pp. 1-2).[2] The October 2023 CSE recommended that the student, who was 10 years old and in fifth grade at the time of the meeting, attend a 12:1+1 special education class for instruction in English language arts (ELA) (10 periods per week in English), mathematics (10 periods per week in Yiddish), social studies (three periods per week in Yiddish), and sciences (three periods per week in Yiddish), as well as related services consisting of sessions of OT, PT, speech-language therapy, and vision education services (Dist. Ex. 2 at pp. 23-24). The CSE also recommended the student receive daily health paraprofessional services for health and seizure monitoring on a part time (80 percent) basis, and that the parents receive parent counseling and training (id. at pp. 1, 24). The CSE meeting minutes indicated that one of the parents "requested an IEP placement and FAPE" during the meeting, and that one of the parents agreed with the recommendations of the CSE (Dist. Ex. 4 at p. 2).
By prior written notice dated November 1, 2023, the district notified the parents of the October 2023 CSE's recommendations (Dist. Ex. 7). By letter dated November 1, 2023, the district notified the parents of the student's assigned public school site for the 2023-24 school year (Dist. Ex. 8).
According to the mother, during the 2023-24 school year, the student attended a nonpublic school and received "up to 15 weekly hours of 1:1 bilingual Yiddish [s]pecial [e]ducation," also referred to as special education teacher support services (SETSS) (Parent Ex. K ¶¶ 9-10).[3] She also indicated that she was unable to find any related service providers or a 1:1 health paraprofessional for the student for the 2023-24 school year (id. ¶ 10).
On July 2, 2024, the mother signed an agreement with Yeled for the 2024-25 school year (Parent Ex. M). Yeled agreed to "do [its] best to provide" the student with special education and/or related services from September 1, 2024 through June 30, 2025 (id. at p. 1). Similar to the previous agreement, it was not specified which services the agency would provide, and the mother agreed to seek payment for services rendered by Yeled from the district, while ultimately acknowledging that it was the parents' responsibility to remit payment (see id.). The rate of services increased from the previous agreement, in that Yeled was to charge $205 an hour for special education services and $275 an hour for related services (id.; see Parent Ex. C at p. 1).[4]
The student attended a nonpublic school during the 2024-25 school year and received SETSS from Yeled, but the parents could not find related service providers or a 1:1 health paraprofessional (Parent Ex. K ¶¶ 15-16).
A. Due Process Complaint Notices and Intervening Events
In a due process complaint notice dated July 15, 2024, the parents, through counsel, alleged that the district did not offer the student a FAPE for the 2023-24 school year (Parent Ex. A). The parents alleged that the student's February 2019 IEP was "expired," and that an annual review should have taken place to discuss the student's continued special education needs for the 2023-24 school year (id. at p. 1). The parents also alleged that the district had failed to conduct appropriate assessments and evaluations in a timely manner (id.). The parents indicated that although a CSE meeting was held on October 31, 2023, the resultant IEP was procedurally and substantively inappropriate and was not completed prior to the start of the 2023-24 school year (id.). The parents also alleged that the CSE was not validly constituted, that no one from the October 2023 CSE had worked with the student, that the October 2023 CSE failed to consider appropriate evaluative data, and the October 2023 IEP failed to accurately reflect the results of evaluations and information presented to the CSE, leading to an inaccurate description of the student (id. at pp. 1-2). The parents also alleged that the goals and management needs in the October 2023 IEP were insufficient (id. at p. 2). The parents contended that the October 2023 IEP was also developed without meaningful parental participation, and that the district predetermined the outcome of the CSE meeting (id.). The parents alleged that, as the student had been receiving 15 hours of SEIT services in an environment with mainstream peers, it was inappropriate to place the student in a special class environment (id.). The parents further alleged that the only reason the October 2023 CSE did not recommend a continuation of SEIT services was because of her age, and that the CSE did not continue a recommendation of 12-month programming without explanation (id.). The parents alleged that the assigned public school site for the student was not appropriate as it would not have been able to provide the bilingual Yiddish program or services recommended in the student's October 2023 IEP (id.). The parents indicated that the unilaterally obtained program delivered by Yeled addressed the student's needs (id.). As relief, the parents requested 15 hours of SEIT services, and "enhanced rate related services" of speech-language therapy, OT, PT, vision therapy, and a health paraprofessional "5x240x1" (id.).
By prior written notice dated July 23, 2024, the district again notified the parents of the October 2023 CSE's recommendations in writing (Dist. Ex. 15). By letter dated July 23, 2024, the district notified the parents of the student's assigned public school site for the 2024-25 school year (Dist. Ex. 8).
By letter to the CSE dated September 10, 2024, the mother expressed her concerns with the October 2023 CSE's recommendations, as well as with the assigned public school site for the student for the 2024-25 school year, and indicated that she would seek to continue the student's unilaterally obtained 1:1 special education services at district expense until an appropriate IEP and assigned school recommendation were made (Parent Ex. P). The mother indicated that it would be inappropriate to place the student in a specialized class environment, given the student's social delays, and her demonstrated progress with 15 hours of 1:1 special education instruction and support in a mainstream environment (id. at p. 1). The mother also expressed that she spoke with a school secretary at the student's recommended school site, who indicated that the school did not offer a bilingual Yiddish 12:1+1 classroom, as was recommended for the student, and, therefore the school "would not be able to implement" the student's IEP (id.).
In a second due process complaint notice dated November 14, 2024, the parents, through counsel, alleged that the district failed to offer the student a FAPE for the 2024-25 school year (Parent Ex. Q). The parents alleged that the October 2023 IEP was procedurally and substantively inappropriate, and made similar general allegations to that of the first due process complaint notice (compare Parent Ex. A at pp. 1-2, with Parent Ex. Q at pp. 1-2). Additionally, the parents alleged that the October 2023 IEP failed to address the student's need for 1:1 education and support (Parent Ex. Q at p. 1). The parents also raised allegations that the student continued to require 15 hours of SEIT support in a mainstream setting, and that the assigned school site for the 2024-25 school year was not appropriate as it would not have been able to implement the student's October 2023 IEP or provide the bilingual Yiddish program or services in the student's IEP (id. at p. 2). The parents also alleged that the October 2023 IEP had "expired" and that a timely CSE meeting had not been held for the 2024-25 school year (id.). The parents indicated that the program delivered by Yeled was appropriate, and requested 15 hours of 1:1 special education services, and "enhanced rate related services" of speech-language therapy, OT, PT, vision therapy, and a health paraprofessional "5x240x1" (id.).
B. Impartial Hearing Officer Decision
An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed, and, after two appearances on August 26 and September 24, 2024, the IHO issued an interim decision on pendency dated September 24, 2024 (Interim Decision on Pendency). The IHO ordered a pendency program based on the student's IEP dated November 18, 2015, consisting of 15 hours per week of individual SEIT services, three 30-minute sessions of individual speech-language therapy, four 30-minute sessions of individual OT, four 30-minute sessions of individual PT, two 45-minute sessions of individual vision therapy, and the support of an individual health paraprofessional "[five] days a week for 240 minutes" on a 12-month basis (id. at p. 1). It was noted that the district did not contest the pendency findings (id.).
After a status conference on October 28, 2024, the IHO issued an interim decision dated November 20, 2024, consolidating the July 15, 2024 and November 14, 2024 due process complaint notices to proceed together (Interim Decision on Consolidation at pp. 1-3).
After an additional status conference on December 9, 2024, the parties appeared before the IHO for an impartial hearing on January 22, 2025.
In a decision dated February 25, 2025, the IHO found that the district failed to meet its burden to establish that a FAPE was offered to the student for the 2023-24 school year, as the district indicated that it was not contesting that issue during the impartial hearing (IHO Decision at pp. 1, 9). The IHO similarly held that the district failed to meet its burden in establishing that a FAPE was offered to the student for the 2024-25 school year because the district provided no documentary or testimonial evidence that the assigned public school site was able to implement the student's October 2023 IEP, and the IHO specifically noted the allegation in the parent's ten-day notice that the assigned school site did not offer a bilingual Yiddish 12:1+1 program (id. at pp. 9-10). The IHO also noted that the district offered no witnesses to support its burden, and found that the district failed to offer sufficient explanation and support for the October 2023 CSE's recommendations (id.).
With respect to appropriateness of the student's unilateral private services provided by Yeled, the IHO first indicated that the parent sought relief based on the student's 2015 IEP, but the IHO found such reliance on the 2015 IEP was not appropriate given the time that had passed (IHO Decision at p. 11). With respect to the 2023-24 school year, the IHO noted that the student only received SEIT/SETSS, without any recommended related services, and that there was no explanation in the hearing record as to why the student required 15 hours of special education services (id.). The IHO also noted the findings in an undated teacher report from the student's private school, and found that there was limited testimony concerning how the student's SEIT/SETSS supported the student's functioning in the classroom (id. at pp. 11-12). The IHO also indicated that there was no testimony about the curriculum provided to the student by the private school (id. at p. 12). Finally, the IHO noted that, although "providers [were] not required to have any special licenses or certification[s]," the student's private provider was certified to teach students with disabilities only through the second grade, and that she was not a certified Yiddish provider, despite the parents rejecting the student's assigned school site due to a lack of Yiddish instruction (id.). The IHO found that based upon the undated private teacher report, the student's private school was providing "specially designed instruction to support [the s]tudent's needs, and thus, the 15 hours of SEIT/SETSS services provided to [the s]tudent [were] inappropriate" (id.).
With respect to the appropriateness of Yeled's services delivered to the student for the 2024-25 school year, the IHO found that there was limited testimony concerning how the student's private SEIT/SETSS supported the student's functioning in the classroom, and found no testimony regarding the curriculum at the student's private school (IHO Decision at p. 12). The IHO found that, as specially designed instruction is the adaptation of instruction to allow a student to access the general education curriculum, the evidence in the hearing record was insufficient to demonstrate that the student's private SEIT/SETSS provided such access (id.). Similar to the 2023-24 school year, the IHO found that there was no explanation or testimony as to why the student required 15 hours of special education services for the 2024-25 school year, as the services provided were not made in accord with the student's 2019 or 2023 IEPs (id. at pp. 12-13). The IHO found that the parents failed to establish that the student's private SETSS were appropriate for both the 2023-24 and 2024-25 school years (id. at p. 13).
The IHO also addressed equitable considerations as alternative findings (IHO Decision at p. 13). The IHO found that equitable considerations favored the parents for the 2023-24 school year, and favored the parents in part for the 2024-25 school year (id.). The IHO found that the parents timely submitted a ten day notice letter for the 2023-24 school year, but the parents did not timely submit a ten day notice for the 2024-25 school year, as the mother submitted a letter dated September 10, 2024, which was after the start of the school year (id.). The IHO noted that there was no evidence of the district responding to either letter (id.). With respect to the rate charged by Yeled, the IHO reviewed the district's submitted market rate study and independent provider rate schedule, but found the evidence to not be persuasive as there was no explanation offered to aid in understanding the documents (id.). The IHO ultimately found the rate charged by Yeled to be reasonable for the 2023-24 school year, but the untimely ten-day notice warranted a reduction of the rate for the 2024-25 school year (id. at pp. 13-14).
Additionally, with respect to the parents' requests for compensatory education services, the IHO found that there was no testimonial evidence in the hearing record as to the student's needs for related services or parent counseling and training, and also found that there was no alleged denial of a FAPE based on a lack of related services (IHO Decision at p. 15). The IHO found that there was no deprivation of a FAPE based on a lack of related services, and that the parents did not specify the number of hours of compensatory education services that were being sought, nor did the parents indicate evidence of any regression related to the services requested (id.). Therefore, the IHO did not find it appropriate to award compensatory education services to the student (id.). Finally, the IHO denied all relief not specifically discussed in the decision, and dismissed the parents' claims for both the 2023-24 and 2024-25 school years with prejudice (id. at pp. 15-16).
IV. Appeal for State-Level Review
In an appeal, the parents contend that the IHO erred in finding that the parents failed to establish that the unilaterally obtained services provided by Yeled were appropriate for the 2023-24 and 2024-25 school years. More specifically, the parents contend that the IHO erred in finding that the lack of related services provided to the student impacted a determination on appropriateness. The parents contend that the IHO erred in finding that the hearing record included no explanation or testimony as to why the student required 15 hours of special education services, as there was evidence in the hearing record that the student required such services, and that the IHO erred in "utilizing and misrepresenting information" in a teacher report entered into the hearing record as district exhibit 6, which was unsigned and undated. The parents also contend that the IHO's finding that there was a lack of information in the hearing record with respect to the curriculum at the student's private school was not dispositive in determining whether the special education services were appropriate. With respect to the 2023-24 school year, the parents also contend that the IHO's finding in that regard was contradictory, as the IHO also found that the private school provided specially designed instruction to the student. The parents additionally contend that the IHO erred in finding that the provider certifications for the 2023-24 school year resulted in a program that was not appropriate for the student. The parents also contend that the IHO erred in finding that equitable considerations did not fully favor the parents for the 2024-25 school year. More specifically, the parents contend that they contacted the CSE in writing to advise it that the school site assigned to the student was not able to implement the student's IEP for the 2024-25 school year, but they allege that the district failed to establish that the CSE responded to the parents' letter. The parents also contend that, as the student did not begin to receive services until November 4, 2024, the parents' September 11, 2024 notice letter was timely.
In an answer, the district contends that the parents' request for compensatory services was not properly raised on appeal, should be deemed abandoned, and that the IHO's denial of relief for compensatory services should be regarded as final and binding. The district also contends that the IHO correctly found that the parents failed to establish that the unilaterally obtained services were appropriate.
In a cross-appeal, the district contends that the IHO erred in finding that the district failed to establish that it offered the student a FAPE for the 2024-25 school year. More specifically, the district contends that the October 2023 IEP, that was still in effect for the start of the 2024-25 school year, identified annual goals that were reasonably calculated for the student to receive educational benefit, that the October 2023 CSE was duly constituted and was adequately informed of the student's needs, and that the parents' rejection of the student's assigned school site was speculative. The district also contends that the IHO erred in finding that the district required a witness or testimonial evidence to meet its burden that it offered a FAPE. The district contends, in the alternative, that equitable considerations do not favor relief to the parents. The district contends that the parents submitted ten-day notice letters after having entered into contracts with Yeled months prior, which deprived the district of the opportunity to address the parents' concerns. The district also contends that the rate charged by the private provider was excessive, as only $70 of the $198 rate went to the provider, and that there was no clear explanation for a rate increase for the 2024-25 school year.
In an answer to the cross-appeal, the parents first assert that the district failed to contest the IHO's finding that the district failed to offer the student a FAPE for the 2023-24 school year, rendering that determination final and binding. The parents also contend that the IHO correctly found that the district failed to offer the student a FAPE for the 2024-25 school year. More specifically, the parents allege that the district failed to present a witness, provide an explanation, or provide evidence regarding the rationale behind the October 2023 CSE's recommendations. The parents also contend that the district failed to establish that the October 2023 IEP accurately described the student, or that it was reasonably calculated to confer an educational benefit. The parents contend that mere documents, alone, do not satisfy the district's burden, and, while in some limited circumstances an SRO has found documentary evidence to be sufficient, the circumstances of this matter do not warrant such a finding. The parents contend that the district's assertions with respect to the findings concerning the October 2023 IEP lack a foundation in the hearing record. The parents additionally contend that the October 2023 IEP was "expired" in October 2024, that a CSE failed to convene for the 2024-25 school year, and that there was no indication in the hearing record that the October 2023 IEP remained accurate or appropriate. The parents disagree with the district's assertion that the parents' concerns with the assigned school site were speculative, as the legal burden rested upon the district to prove that it could implement the student's October 2023 IEP, which it failed to do, particularly with respect to a bilingual Yiddish program being available. With respect to equitable considerations, the parents contend that the Second Circuit has held that even when parents have no intention of placing a student in the recommended program, it is not a basis to deny a request for tuition reimbursement absent a finding that the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA. The parents also contend that merely because they entered into a contract with Yeled prior to the start of a school year, this did not impede the district's ability to respond to the parents' concerns, and the hearing record is devoid of any attempt on behalf of the district to address those concerns. With respect to the district's contentions regarding an excessive rate, the parents contend that the director of fiscal services at Yeled credibly testified how the agency's rates were determined and how the costs of services were derived. The parents likewise contend that the district did nothing to establish what a reasonable rate would be, and that the AIR Report proffered by the district to show rates, without a witness to authenticate the information or offer guidance on its findings, was insufficient to establish a reasonable rate. The parents also contend that it is not their burden to establish a reasonable rate.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[5]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
A. Preliminary Matters – Scope of Review and Mootness
Initially, as neither party has appealed from the IHO's determinations that the district failed to meet its burden to prove that it offered the student a FAPE for the 2023-24 school year, or that an award of compensatory education services to the parent was not appropriate, these findings are final and binding on the parties and will not be further discussed (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]).
With respect to that portion of the parent's appeal seeking to reverse the IHO's finding that the privately obtained special education services provided by Yeled for the 2023-24 school year were not appropriate to meet the student's needs, it is well settled that the dispute between parties must at all stages be "real and live," and not "academic," or it risks becoming moot (Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; see Toth v. City of New York Dep't of Educ., 720 Fed. App'x 48, 51 [2d Cir. Jan. 2, 2018]; F.O. v. New York City Dep't of Educ., 899 F. Supp. 2d 251, 254 [S.D.N.Y. 2012]; Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *12 [E.D.N.Y. Oct. 30, 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30, 2008]; see also Coleman v. Daines, 19 N.Y.3d 1087, 1090 [2012]; Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., V.M. v. N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 119-21 [N.D.N.Y. 2013]; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 280-81 [E.D.N.Y. 2010]; Patskin, 583 F. Supp. 2d at 428-29; J.N., 2008 WL 4501940, at *3-*4; but see A.A. v. Walled Lake Consol. Schs., 2017 WL 2591906, at *6-*9 [E.D. Mich. June 15, 2017] [considering the question of the "potential mootness of a claim for declaratory relief"]). Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007).
While a student is entitled to remain in his or her stay-put placement during the pendency of a proceeding, this statutory protection is similar to preliminary injunctive relief, as it protects the student while the proceedings are pending and is distinct from the ultimate relief available to a parent through the due process proceedings (20 U.S.C. § 1415 [j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]). In this case, however, the parents' remaining claims that pertain to the 2023-24 school year are related to the parents' request for relief that the district fund 15 hours per week of the student's privately obtained special education services provided by Yeled. As discussed above, the IHO in this matter issued an interim decision on pendency which, among other things, ordered that the student receive 15 hours per week of individual SEIT services, which, in essence, is what the parents requested be funded by the district for the 2023-24 school year (see Interim Decision on Pendency at p. 1). It was also noted that the district did not contest the IHO's pendency findings on that interim decision (id.). Additionally, neither party alleges on appeal that the pendency order was not implemented, (see generally Req. for Rev.; Answer & Cr. App.; Answer to Cr. App.). As such, the parents were awarded all of the relief requested for the alleged deprivation of a FAPE for the 2023-24 school year. Additionally, during the pendency of this appeal, counsel for the district represented, in correspondence to this office requesting extensions, that the student was receiving pendency services pursuant to a pendency order. Accordingly, the student has received all of the remaining requested relief sought in this proceeding, under pendency, as related to the 2023-24 school year.
Nevertheless, a claim may not be moot despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318-23 [1988]; Toth, 720 Fed. App'x at 51; Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040). The exception applies only in limited situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). It must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration" (Murphy v. Hunt, 455 U.S. 478, 482 [1982]; see Knaust, 157 F.3d at 88). Many IEP disputes escape a finding of mootness due to the short duration of the school year facing the comparatively long litigation process (see Lillbask, 397 F.3d at 85). Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]; Toth, 720 Fed. App'x at 51; see Hearst Corp., 50 N.Y.2d at 714-15). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Murphy, 455 U.S. at 482; Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 120 [2d Cir. 2001]). Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence (Russman, 260 F.3d at 120; but see A.A., 2017 WL 2591906, at *7-*9 [finding that the controversy as to "whether and to what extent the [s]tudent can be mainstreamed" constituted a "recurring controversy [that] will evade review during the effective period of each IEP for the [s]tudent"]; see also Toth, 720 Fed. App'x at 51 [finding that a new IEP that did not include the service requested by the parent established that the parent's concern that the prior IEP would be repeated was not speculative and the "capable of repetition, yet evading review" exception to the mootness doctrine applied]).
Some courts have taken a dim view of dismissing a Burlington/Carter reimbursement cases as moot because all of the relief has been obtained through pendency (New York City Dep't of Educ. v. S.A., 2012 WL 6028938, at *2 [S.D.N.Y. Dec. 4, 2012]; New York City Dep't of Educ. v. V.S., 2011 WL 3273922, at *9-*10 [E.D.N.Y. Jul. 29, 2011]), while others have found it an acceptable manner of addressing matters in which the relief has already been realized through pendency (see V.M., 954 F. Supp. 2d at 119-20 [explaining that claims seeking changes to the student's IEP/educational programing for school years that have since expired are moot, especially if updated evaluations may alter the scrutiny of the issue]; Thomas W. v. Hawaii, 2012 WL 6651884, at *1, *3 [D. Haw. Dec. 20, 2012] [holding that once a requested tuition reimbursement remedy has been funded pursuant to pendency, substantive issues regarding reimbursement become moot, without discussing the exception to the mootness doctrine]; F.O., 899 F. Supp. 2d at 254-55; M.R. v. S. Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *9 [S.D.N.Y. Dec. 16, 2011]; M.S., 734 F. Supp. 2d at 280-81 [finding that the exception to the mootness doctrine did not apply to a tuition reimbursement case and that the issue of reimbursement for a particular school year "is not capable of repetition because each year a new determination is made based on [the student]'s continuing development, requiring a new assessment under the IDEA"]).
Initially, review of the district court decision in V.S., shows that matter was determined not to be moot because a decision as to the adequacy of the proposed IEP in that matter would have supplanted the student's then-current pendency placement and established a new educational placement for the student (V.S., 2011 WL 3273922, at *10). However, in this matter, neither party has appealed from the IHO's determination that the district failed to offer the student a FAPE for the 2023-24 school year (see IHO Decision at p. 9). Accordingly, there can be no pendency changing determination related to the 2023-24 school year and there is no further relief that could be addressed for the parents' claims related to that school year that is ongoing and remediable.
Additionally, the capable of repetition yet evading review exception to mootness would not apply because the conduct complained of—the district's failure to offer the student a FAPE—is no longer at issue for the parents' claims for the 2023-24 school year. Rather, the parties' dispute for that school year centers around the particular services that the parents obtained, as self-help, to remedy the district's denial of a FAPE to the student. As the FAPE determination for the 2023-24 school year was not appealed by the district and is therefore final and binding upon the parties, and the only issues relate to the appropriateness of unilaterally obtained services and the weighing of equitable considerations, any parental concern that the district would continue to recommend the same program is not addressable at this level of the proceeding and cannot be used to justify a finding that the matter is "capable of repetition, yet evading review." While the Second Circuit has noted that "IEP disputes likely satisfy the first factor for avoiding mootness dismissals" because "judicial review of an IEP is 'ponderous'" (Lillbask, 397 F.3d at 87), this does not seem to be a concern in this matter as the IEP dispute has been removed. Without an IEP dispute, the question of the appropriateness of unilaterally obtained services could be made in a much shorter time frame. More pertinently, however, there is no district action "capable of repetition, yet evading review, "as there is no longer a dispute regarding the student's educational programming for the 2023-24 school year.
Moreover, even if the dispute here could be repeated, a determination in this matter would be of little consequence, as detailed procedural and substantive fact findings must be made regarding each disputed IEP, school year, or unilateral placement, and administrative hearing officers cannot rely on facts from one school year to make determinations about a different school year (see J.R. v. New York City Dep't of Educ., 748 Fed. App'x 382, 386 [2d Cir. Sept. 27, 2018] [stating that "the [district's] funding of [the student's] schooling in other years is irrelevant: 'the adequacy vel non of an IEP . . . is to be judged on its own terms'" and that whether the district offered the student "an appropriate placement in other years 'makes no difference' to the question of whether the IEP provided a FAPE" in the school year at issue], quoting M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 67 [2d Cir. 2000]; but see Cohen v. Aviles-Ramos, 2025 WL 3715102, at *3 [S.D.N.Y. Dec. 22, 2025] [noting that the district in that matter did not present a reason to believe that a determination on funding for private transportation services would be subject to an annual reassessment]). As such, the issue of whether a unilateral placement is appropriate, unlike FAPE, does not fit into the mootness exception as it is not capable of repetition yet evading review.
Accordingly, there is no need to address the parents' contentions on appeal as related to the 2023-24 school year because they are moot, and only claims relating to the 2024-25 school year will be addressed below.
B. FAPE – 2024-25 School Year
Turning next to the district's contentions in a cross-appeal that it met its burden to establish that it offered the student a FAPE for the 2024-25 school year, it is first necessary to address the IHO's finding, and the parents' contention on appeal, that the district failed to do so by relying on documents alone, without any witness testimony.
The burden of production and persuasion has been shifted under State law to a district to show that it offered a student a FAPE (Educ. Law § 4404[1][c]).[6] 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). However, neither the IDEA, State Law, nor case law provides that a district fails to meet its burden of proof simply because the evidence produced does not consist of witness testimony and instead, each party has the right to "[p]resent evidence and confront, cross-examine, and compel the attendance of witnesses" (34 CFR 300.512 [a][2]). Because there is a right to present documentary evidence, the documentary evidence must be discussed as it relates to the disputed issues because a district could prevail on some or all of the disputed issues related to a FAPE for a student by producing evidence consisting of documentary evidence. An IHO is required to conduct a fact-specific analysis in order to determine whether a district offered the student a FAPE and a district must ensure that the hearing record includes evidence addressing the particular issues raised by the parents in their due process complaint notice. 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. To be clear, there is no procedural requirement that a district call witnesses at the impartial hearing in order to address the parent's due process complaint notice, especially if the district submits the extensive documentation that is required under the procedures of the IDEA itself (Application of a Student with a Disability, Appeal No. 25-158; Application of a Student with a Disability, Appeal No. 25-125; see M.B. v. New York City Dep't of Educ., 2017 WL 384352, at *6 [S.D.N.Y. Jan. 25, 2017] [noting the lack of case law cited as to why it would be necessary for the district to present testimony from a teacher]).[7] Thus, while documentary evidence alone may be sufficient for the district to meet its burden, that evidence must adequately provide a cogent and responsive explanation for the recommendations in the IEP in the context of the disputed issues related to a FAPE for a student.
Thus, the district's contentions will be evaluated under this light, i.e., whether the district's documentary evidence entered during the impartial hearing, alone, sufficiently established that the district offered the student a FAPE for the 2024-25 school year.
1. Student Needs
A review of the student's needs and then-current functioning will provide the background necessary to evaluate the appropriateness of the October 2023 CSE's recommendations for the 2024-25 school year.
The student's needs at the time of the October 2023 CSE meeting were identified in the IEP's present levels of performance and are not in dispute.[8] At the time the October 2023 IEP was created, the student was attending fifth grade in a "mainstream classroom" with 18 other students at a nonpublic school (Dist. Ex. 2 at p. 1). Parent report included in the IEP indicated that the student was receiving PT, and had received both OT and PT intermittently over the past several years, but was not receiving vision therapy (id.). In terms of evaluative information, the October 2023 IEP included results from a July 2023 psychoeducational evaluation, a July 2023 social history update, and teacher reports (Dist. Exs. 2 at pp. 1-6; 7 at p. 3). The student was described as a bilingual learner, with Yiddish being spoken at home, although the student was reported to communicate adequately in English, both receptively and expressively (Dist. Ex. 9 at p. 2).
Based on the psychoeducational testing results included in the October 2023 IEP, the student's cognitive functioning was assessed using the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V), which yielded the following scores: a full scale intelligence quotient (FSIQ) in the very low range; verbal comprehension and fluid reasoning scores within the very low range; a visual spatial score within the extremely low range; a working memory score within the low average range, and designation of "[n]o [s]core" on the processing speed index (Dist. Exs. 2 at p. 1; 9 at p. 3). The student's academic achievement was assessed using the Wechsler Individual Achievement Test-Fourth Edition (WIAT-4), which yielded composite scores in the very low range in reading, mathematics, and decoding (Dist. Exs. 2 at p. 2; 9 at p. 5).
In reading, the October 2023 IEP reflected reports that the student was at a second grade level and at a Fountas and Pinnell level K (Dist. Ex. 2 at p. 2). According to the IEP, the student "read[] nicely" and had adequate fluency, but she had difficulty with decoding and comprehension (id.). The student had developed a "clear understanding of phonemic awareness, successfully matching letters with their corresponding sounds," and was able to "respond accurately to literal questions about a text she ha[d] read and [could] differentiate between fantastical and realistic elements within narratives" (id.). The IEP reflected reports that the student struggled with decoding words containing short and long vowel sounds, consonant blends, "magic e" rule, and that she did not "employ tone and inflection while reading (id.;see Dist. Ex. 5 at p. 2). Additionally, the student had difficulty pronouncing new words correctly, as well as applying the reading rules that she had previously learned to decode new words (Dist. Ex. 2 at p. 2). Further, the IEP stated that the student's reading delays, coupled with her limited attention span, posed challenges in her ability to attain grade-level reading comprehension (id. at p. 3). The student was able to "respond to straightforward 'wh' questions," but encountered difficulties with "complex inquiries that require[d] critical and higher-order thinking" (id.). Additionally, the student struggled with "making age-appropriate inferences, synthesizing information, and referencing the text explicitly to support her answers" (id.).
With regard to the student's writing, the October 2023 IEP indicated that the student was able to write creatively with teacher prompts and "freelance," but she often missed "proper punctuation" and had difficulty with spelling (Dist. Ex. 2 at p. 3). The IEP noted that the student was proficient in "replicating letters of the alphabet in manuscript writing, demonstrate[d] proper letter height and form, and exhibit[ed] legible handwriting" and that the student was able to write complete sentences with correct capitalization (id.). According to the IEP, the student's spelling skills needed improvement, evidenced by numerous spelling errors in her worksheets and that she had "great difficulty completing fill in worksheets in class . . . often los[ing] her place" and needing a physical prompt to stay on track (id.). Further, the IEP reflected that the student had difficulty filling out a worksheet during whole class instruction, that she wrote her answers in "random places," and that she was able to participate more successfully after her SETSS provider arrived and assisted her (id.).
Turning to mathematics, the October 2023 IEP indicated that the student's skills were approximately at a mid-second grade level and that she understood addition, subtraction, place value, and money concepts (Dist. Ex. 2 at p. 3). Additionally, the IEP noted that the student excelled in solving single-digit addition and subtraction problems and had a "good grasp of place value" (id.). According to the IEP, the student struggled to comprehend the concepts of regrouping, whole numbers, and fractions, and struggled solving multi-digit multiplication and division problems (id.). Word problems were reported to be difficult for the student to complete independently as she had difficulty identifying keywords within a problem and organizing the relevant information to solve the equation (id.).
Regarding the student's language development, the October 2023 IEP indicated that she was able to articulate her thoughts clearly and use age-appropriate vocabulary (Dist. Ex. 2 at p. 3). She was able to articulate her thoughts and needs clearly, but she did not "frequently discuss her personal experiences," and she required prompts to use her words "through activities and books that foster[ed] reciprocal communication" (id. at p. 4). The IEP also noted that the student exhibited variability in her receptive language abilities and that, while there were instances when she could follow multi-step directions and understand classroom instructions, there were also times when she struggled to comprehend, "[felt] lost, and remained[ed] uncertain of what [was] expected of her" (id.). The student encountered delays in her auditory processing "especially during" seizure activity (id.).
Additionally, the October 2023 IEP indicated that the student often needed assistance with instructional steps to new assignments, had difficulty "grasping new concepts," and she struggled with abstract learning, critical thinking, and "problem-solving, often becoming stuck when confronted with challenges" (Dist. Ex. 2 at p. 4). The IEP noted that the student made efforts to engage in classroom activities and group work, but keeping pace with her peers remained a challenge, and the student "occasionally" misunderstood classroom instructions and expectations (id.). Further, the student lacked organizational skills, and exhibited high distractibility, and a "notably short" attention span (id.). The IEP indicated that, when given "the proper help," the student completed her homework with accuracy, and that she was able to follow along in the classroom (id.).
Turning to the student's social development, the October 2023 IEP, reflected reports that the student "reach[ed] out and sp[oke] to friends" and exhibited "excellent classroom behavior" (Dist. Ex. 2 at p. 5). Reports reflected in the IEP indicated that the student exhibited "notable delays in her social, emotional, and behavioral development" (id.). The IEP noted some improvement in the student's social awareness but noted that she continued to demonstrate challenges in understanding social cues and occasionally struggled to establish and maintain eye contact (id.). Additionally, the IEP reported that the student was able to make attempts to engage with her peers and participate in their conversations, but her social skills remained underdeveloped (id.). Parent concerns noted in the October 2023 IEP included that the parent wanted to see the student initiate more social interactions (id.). At home, the parent reported that the student had "some good days and bad" days, that she expressed her frustration in the "form of tantrums (yelling)," and that she could be "pretty moody" (id.).
With respect to the student's physical development, the October 2023 IEP indicated that the student wore glasses, was known to have "active seizures" (approximately two to three per day according to the parent), and took daily medications for seizures and high blood pressure (Dist. Ex. 2 at pp. 5-6). The IEP indicated that the student exhibited difficulty with fine motor tasks involving writing, and activities such as "cutting, folding papers, putting her papers into sheet protectors, and hole punching her pages" (id. at p. 6). According to the parent, as reflected in the October 2023 IEP, the student would benefit from OT and PT to address delays in fine and gross motor skills, and continued to require the support of a health paraprofessional due to her medical conditions (id.).
2. October 2023 IEP Program Recommendations
Having reviewed the student's needs, the next area of inquiry is the appropriateness of the October 2023 CSE's program recommendations. As stated above, the October 2023 CSE recommended 12-month programming consisting in part of a 12:1+1 special class for instruction in ELA (10 periods per week in English), mathematics (10 periods per week in Yiddish), social studies (three periods per week in Yiddish), and sciences (three periods per week in Yiddish) (Dist. Ex. 2 at pp. 23, 25). As rationale for its recommendation, the October 2023 IEP indicated that the CSE determined that, due to the student's "academic deficits that [could not] be addressed in a general education class alone," she required "additional specialized instruction" and "support in all major subject areas as she demonstrate[d] skills that [were] below her current grade level" (id. at p. 6).[9]
State regulation provides that "the maximum class size for special classes containing students whose management needs interfere with the instructional process, to the extent that an additional adult is needed within the classroom to assist in the instruction of such students, shall not exceed 12 students, with one or more supplementary school personnel assigned to each class during periods of instruction" (8 NYCRR 200.6[h][4][i]).
In conjunction with the supports inherent in the 12:1+1 special class, the October 2023 CSE determined that the student required the following to address her management needs and enable her to benefit from instruction: verbal and visual cuing with organized lesson materials; positive reinforcement; preferential seating; repetition; chunking and simplification of directives; small group instruction; graphic organizers; verbal "negotiation/Preparation;" modeling and "testing modifications appropriate for student's needs" (Dist. Ex. 2 at p. 6).
The October 2023 CSE developed approximately 16 annual goals that targeted the student's needs in the areas of reading comprehension, decoding, and fluency; math operations and word problems; spelling and writing; executive functioning; social skills; receptive and expressive language skills; fine and gross motor skills; activities of daily living; and functional vision skills (Dist. Ex. 2 at pp. 8-22). Reading goals targeted improving the student's ability to make predictions, answer 'wh' questions, sequence main events of the story, analyze the main characters, improve decoding, increase reading fluency, identify main ideas with supporting details, and expand vocabulary (id. at pp. 8-10). Math goals focused on the student improving her understanding of fractions and decimals, mastering basic addition, subtraction, multiplication and division facts, and improving her ability to solve word problems (id. at pp. 11-12). In writing, the October 2023 CSE developed goals to target improving the student's spelling and editing skills (id. at p. 12). An executive functioning goal included in the IEP addressed the student's needs in self-regulation, organization, and time-management (id. at p. 13). A social goal included in the IEP noted that the student would improve her social skills by enhancing her communication skills, asking for help as needed, learning to read social cues, and improving reciprocal conversations (id. at pp. 14-15). The goals in the October 2023 IEP for the student's related services included receptive language goals to improve listening skills to follow multi-step directions, understand and process grade level language, and improve non-verbal communication skills (id. at p. 16). Expressive language goals were designed to improve the clarity and coherence of the student's speech, use grade level vocabulary, and engage in reciprocal conversations (id. at p. 17). Additionally, the October 2023 IEP included goals to improve fine motor skills specifically when writing and cutting, and improve dressing and fastener skills, with gross motor goals that targeted her mobility, postural alignment, balance, jumping, and stair skills (id. at pp. 16-20). Vision goals included in the October 2023 IEP targeted improving the student's ability to self-advocate to maximize her functional vision, and to scan print materials (id. at pp. 21-22).
To further support the student's needs and in conjunction with annual goals, the October 2023 CSE determined that she benefitted from, and recommended that she receive related services consisting of sessions of OT, PT, speech-language therapy, and vision education services (Dist. Ex. 2 at pp. 6-7, 23-24). The CSE also acknowledged the student's need for paraprofessional support due to her medical conditions, and recommended the student receive daily health paraprofessional services for health and seizure monitoring on a part time (80 percent) basis, and that the parents receive parent counseling and training (id. at pp. 1, 7, 24).
Overall, the evidence in the hearing record shows that the October 2023 CSE recommended an educational program that was designed to confer educational benefit and enable the student to make progress. As discussed above, in developing the student's IEP, the October 2023 CSE considered information from the student's parents, teacher, SETSS provider, as well as the results of district testing, and identified the student's areas of weakness (Dist. Ex. 2 at pp. 1-8). The CSE developed annual goals that targeted the student's deficit areas, and recommended an educational program on a 12-month basis that was reasonably calculated to provide the student special education support throughout the day, including special class instruction, related services, and daily, individual paraprofessional support (id. at pp. 23-25). Specifically, review of the student's management needs and present levels of performance supports the conclusion that the recommendation for a 12:1+1 special class was consistent with the student's needs; in particular, the student required repetition, verbal and visual cues, preferential seating, modeling and consideration of testing modifications (id. at p. 6). As a result of the foregoing, the hearing record supports a finding that the October 2023 IEP offered the student a FAPE for the 2024-25 school year.[10]
C. Implementation/Assigned School:
Turning to the parents' claims about the assigned public school site's capacity to implement the October 2023 IEP during the 2024-25 school year, generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88). The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]). However, a district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]). The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP" (M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. 2015]). Such challenges must be "tethered" to actual mandates in the student's IEP (see Y.F., 659 Fed. App'x at 5). Additionally, the Second Circuit indicated that such challenges are only appropriate, if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244). In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP (see Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]). Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate (K.F., 2016 WL 3981370, at *13; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016]).
Here, the parents allege that the student's assigned public school site for the 2024-25 school year would not have been able to implement the student's October 2023 IEP because it did not offer a bilingual Yiddish 12:1+1 class, as was primarily recommended for the student.[11] To support this assertion, the mother alleged in her September 10, 2024 letter to the district that she spoke with the school secretary who "advised that the school [did] not offer a bilingual Yiddish classroom and therefore, they would not be able to implement" the student's IEP (Parent Ex. P at p. 1).
Other than the parent's mention of a conversation with the school secretary as recounted I in the September 10, 2024 letter, there is no evidence in the hearing record to sufficiently conclude that the student's assigned school site would not have been able to implement the October 2023 IEP, or specifically that it could not provide a bilingual Yiddish 12:1+1 class to the student. It is unclear what role the school secretary had in developing available programs for the school site, or what her knowledge was of future offerings by the school, and there is nothing in the hearing record conclusively demonstrating that, even if such a class was not in the school previously, that one would not have been made available to the student for the 2024-25 school year in accordance with the IEP mandates. Further, the student never attended the assigned school site pursuant to the October 2023 IEP, and any conclusion that the district would not have implemented the student's IEP or that the assigned public school site could not meet the student's needs would necessarily be based on impermissible speculation, and the district was not obligated to present retrospective evidence at the impartial hearing regarding implementation of the student's programming under the IEP or to refute the parents' claims (R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]; F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 9 [2d Cir. Jan. 8, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 87 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 187 & n.3]).
Therefore, as the district sustained its burden in establishing that a FAPE was offered to the student for the 2024-25 school year, and the parents' implementation claims related to the assigned school site were impermissibly speculative, the IHO's decision must be reversed with respect to the finding that the district did not meet its burden for the 2024-25 school year.
VII. Conclusion
In summary, the parties' dispute regarding the 2023-24 school year is moot because the pendency order entitled the parents to all relief sought for the 2023-24 school year and no further relief can be provided.
As the district met its burden to establish that it offered the student a FAPE for the 2024-25 school year and as the parents' contentions with respect to the capacity of the student's assigned public school site for the 2024-25 school year to implement the October 2023 IEP were impermissibly speculative, the IHO's determination that the district failed to offer a FAPE for the 2024-25 school year must be reversed. Having found that the district offered the student a FAPE, I need not reach the issues of whether the unilaterally obtained services were appropriate for the student or whether equitable considerations supported the parents' request for relief and the necessary inquiry is at an end (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).
I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations above.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED.
IT IS ORDERED that the IHO's decision dated February 25, 2025 is modified by reversing that portion which found that the district failed to meet its burden to establish that a FAPE was offered to the student for the 2024-25 school year
Footnotes
[1] The transcripts in the hearing record are not all consecutively paginated with one another, therefore each citation to a transcript will be preceded by the date of the proceeding.
[2] The student's eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[3] SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district.
[4] According to the fiscal director at Yeled, the student was provided up to 15 hours per week of special education services at a rate of $205 per hour for the 2024-25 school year beginning in November 2024 (Jan. 22, 2025 Tr. pp. 98-99; Parent Exs. L ¶ 3; N ¶ 5).
[5] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[6] 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 v. Weast, 546 U.S. 49, 58 [2005]; 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]).
[7] If a district intends to rest its case on documentary evidence alone, it is prudent for the district to 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]).
[8] While both the parents' due process complaint notice concerning the 2024-25 school year (Parent Ex. Q at pp.3-4) and their answer to the district's cross-appeal generically state that the present levels of performance in the October 2023 IEP did not adequately reflect the student, such claims seem to derive from their overarching claim that the October 2023 IEP had expired thereby rendering information contained therein stale. As discussed herein, however, the October 2023 IEP was the operative IEP in place from October 2023 to October 2024 and, additionally, 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]) . Moreover, the parents have not identified any specific infirmities in the evaluative information relied on by the October 2023 CSE that would rebut the evidence presented by the district in support of its burden of production and persuasion that it offered the student a FAPE for the 2024-25 school year.
[9] The IEP indicated that the October 2023 CSE considered integrated co-teaching services and a 12:1+1 special class in a specialized school, but rejected those options, finding that the student required a smaller class size, and that a specialized school setting was too restrictive for the student, respectively (Dist. Ex. 2 at p. 30).
[10] To the extent that the parents contend that the October 2023 IEP was expired, I note that the district has an obligation to review the IEP of a student with a disability periodically but at least annually (20 U.S.C. § 1414[d][4][A]; 34 CFR 300.324[b][1][i]; 8 NYCRR 200.4[f]). State regulations additionally provide that, if parents believe that their child's placement is no longer appropriate, they "may refer the student to the [CSE] for review" (8 NYCRR 200.4[e][4]). Here, as the parents acknowledge in the answer to the cross-appeal, the October 2023 IEP was the operative IEP in place for the beginning of the 2024-25 school year, and the IEP reflects a projected date of annual review of October 31, 2024 (Dist. Ex. 2 at p. 1). The district was not obligated to have the CSE convene prior to that date, and the parents had already rejected the district program prior to October 31, 2024 by virtue of the mother's September 10, 2024 letter (see Parent Ex. P). Additionally, the Second Circuit has made clear that parents are entitled to rely on an IEP "as written when they decide to [unliterally] place" their child before the beginning of a school year (Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 173 [2d Cir. 2021]; see R.E., 694 F.3d at 187-88 ["At the time the parents must decide whether to make a unilateral placement . . . [t]he appropriate inquiry is into the nature of the program actually offered"]).
[11] The October 2023 IEP included an alternative recommendation for the student, in that the October 2023 IEP reflected that, if there was no available class in the student's recommended language of instruction, the student would be placed in an "interim monolingual class with an alternate placement paraprofessional," until the student was placed in an appropriate bilingual class (Dist. Ex. 2 at p. 30). While it is not necessary to address this alternative placement under the circumstances of this matter, the recommendation of an alternative placement in an IEP does not conclusively render that recommendation inappropriate. Rather, a fact-specific inquiry would need to be performed to determine whether such an alternative placement was appropriate (see Application of a Child with a Disability, Appeal No. 24-593).