Application of a Student with a Disability

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-198

Application of a STUDENT WITH A DISABILITY, by the 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:

Alvy Law, PLLC, attorneys for petitioner, by Vida M. Alvy, Esq.

Liz Vladeck, General Counsel, attorneys for respondent, by Irene Dimoh, Esq.

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request to be reimbursed for her daughter's tuition at the Eagle Hill School (Eagle Hill) for the 2024-25 school year.  Respondent (the district) cross-appeals from the IHO's determination that it failed to demonstrate that it had offered an appropriate educational program 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, attention-deficit/hyperactivity disorder (ADHD combined presentation), specific learning disorder with impairment in written language, developmental coordination disorder, and specific learning disorder with impairment in reading (dyslexia) (Dist. Exs. 1 at pp. 4, 22; 4 at p. 8).  Notably, according to the July 2021 neuropsychological evaluation report, the student's dyslexia diagnosis was "in partial remission" given the considerable progress that the student had made (Dist. Exs. 1 at p. 4; 4 at p. 3).  The student identifies as non-binary with the preferred pronouns of they/them/their (Parent Ex. A at p. 2; Dist. Ex. 1 at p. 4).^[1]

The student was evaluated in March 2011 at the age of three years, eight months, at which  time the student demonstrated above average cognitive skills and mild motor delays, for which physical therapy (PT) was recommended (Parent Ex. D at p. 2).  When the student was in kindergarten, reports indicated they were meeting standards in most areas, with weaknesses in working independently and using self-regulating behaviors (id.).  The student's IEP at that time noted the need for moderate adult support to engage in tasks that were challenging or nonpreferred (id.).   Additionally, the student exhibited low muscle tone, sensory processing difficulties, and fine and gross motor difficulties, for which PT and occupational therapy (OT) were recommended (id. at p. 2). 

In first grade, the student reportedly needed to improve reading skills and sustaining effort during writing tasks (Parent Ex. D at p. 2).  A January 2014 cognitive assessment found that the student's cognitive abilities fell at the 92nd percentile for verbal intellectual abilities and at the 58th percentile for nonverbal intellectual abilities (id.).  An evaluation in February 2014 indicated high average to superior intellectual abilities, average working memory and processing speed, and a particular strength in mathematics (id.).  The student reportedly presented with normal visual and motor abilities, did well socially, and exhibited no significant behavioral difficulties at school (id.).  The student exhibited weaknesses in the areas of attention, executive functioning, and literacy development (id.).

The student transferred to Stephen Gaynor School for fourth grade, to help improve their reading ability (Parent Ex. D at p. 2).  The student graduated from Stephen Gaynor in June 2021 and enrolled at Eagle Hill Residential, based on a recommendation for a small school setting with a strong writing program and extra math support (Parent Ex. D at p. 2; Dist. Ex. 4 at p. 3).

A CSE convened on January 8, 2024, determined that the student was eligible to receive services as a student with an other health impairment, and developed an IEP with a projected implementation date of January 17, 2024 (Dist. Ex. 1 at pp. 1, 39; 2 at p. 1).^[2]  The January 2024 CSE recommended that the student receive 20 periods per week of integrated co-teaching (ICT) services for all core classes, as well as the related services of two 45-minute sessions per week of individual counseling and one 45-minute session per week of group counseling (id. at p. 34).

In a January 19, 2024 prior written notice, the district summarized the recommendations of the January 2024 CSE (Dist. Ex. 2).  In a January 19, 2024 school location letter, the district informed the parent of the public school site to which the student had been assigned (Dist. Ex. 3).

In a series of emails to the parent coordinator of the assigned school dated between February 7, 2024 and August 12, 2024, the parent requested to visit and speak with staff, stating that she had also tried to call "a few times" but was unable to reach the coordinator (Parent Exs. A at p. 3; C at p. 2). 

On April 2, 2024, the parent signed a re-enrollment contract for the student's attendance at Eagle Hill for the 2024-25 school year (12th grade) (Parent Ex. K).^[3]  The contract indicated that the cost of the student's attendance included tuition, room, and board (id. at p. 1).  More specifically, the contract indicated the student's boarding tuition cost was $91,165.00, and that $4,500.00 represented the cost of the student's spending account, which totaled $95,665.00 for the 2024-25 school year (id. at p. 3).

In an August 15, 2024, 10-day notice, the parent informed the district of her disagreement with the January 2024 CSE's recommendations, of her intention to unilaterally enroll the student at Eagle Hill for the 2024-25 school year, and to seek tuition reimbursement at public expense (see Parent Ex. B).

A. Due Process Complaint Notice

In a due process complaint notice dated September 16, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A).  Specifically, the parent alleged that the January 2024 CSE meeting was substantively and procedurally flawed; the CSE failed to have a regular education teacher at the meeting despite making a program recommendation that required a regular education teacher to be present; that the ICT services recommendation was the same as on the student's previous IEP; and that the January 2024 CSE was unwavering in their recommendations, leading the parent to believe that the recommendations were predetermined and denied her meaningful participation in the development of the IEP (id. at p. 2).^[4]

Further, the parent alleged that the January 2024 CSE failed to provide information on the program recommendation despite her asking for clarification, failed to conduct a classroom observation, failed to discuss promotion criteria, failed to discuss the annual goals, failed to discuss the management needs, failed to discuss transition goals and activities, failed to address the student's need for "24/7 services" for academic and social/emotional support, failed to recommend an appropriate program, and failed to recommend an appropriate placement (Parent Ex. A at pp. 3-4).  The parent also alleged that Eagle Hill provided instruction, supports, methodologies, supervision and services that were specially designed to meet the student's unique needs in order to make meaningful educational progress, the student made and continued to make progress at Eagle Hill, and that she cooperated with the CSE and provided timely notifications to the CSE (id. at p. 4).  As relief, the parent requested tuition reimbursement for the unilateral placement of the student at Eagle Hill from September 1, 2024 through June 30, 2025 (id. at p. 5).

B. Impartial Hearing Officer Decision

The parties proceeded to a prehearing conference before an IHO with the Office of Administrative Trials and Hearings (OATH) on October 28, 2024, and two status conferences on November 27, 2024, and December 18, 2024 (Tr. pp. 1-28).  An impartial hearing convened on January 28, 2025, and concluded the same day (Tr. p. 29-74).

In a decision dated February 27, 2025, the IHO found that the district failed to meet its burden to show that it offered the student a FAPE for the 2024-25 school year (IHO Decision at p. 3).  Specifically, the IHO found that the district failed to provide a cogent explanation regarding the recommendations made in the student's January 2024 IEP (id.).  However, the IHO also found that the parent did not meet her burden of proving that Eagle Hill offered an educational program which met the student's needs (id.).  Specifically, the IHO found that the record contained general information about the school's programming, but no details about specific instructional methods or modifications tailored to the student, or details about the student's specific program or services (id. at p. 5).  In addition, the IHO found that equitable considerations in this case did not favor reimbursement for a "[s]tudent [s]pending [a]ccount" or the residential portion of the program at Eagle Hill because the IHO determined the record did not establish the student's need for a residential program (id. at p. 7).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding that the parent failed to prove that Eagle Hill met the student's needs, and erred in determining that if the parent had met her burden, a reduction in reimbursement for the residential portion of the program was necessary.

In an answer and cross appeal, the district asserts that the IHO erred in finding that the district failed to meet its burden that it offered the student an appropriate educational program for the 2024-25 school year because it offered no witnesses to explain the January 2024 CSE's recommendations. 

In an answer to the district's cross appeal, the parent asserts that the IHO failed to acknowledge the parent's allegations of an improperly composed CSE, the failure to discuss annual goals or management needs at the CSE meeting, the failure to provide information regarding the recommended placement, the failure to make the recommended placement available for observation, and the failure to offer any placement at all for the 2024-25 school year.

V. Applicable Standards

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

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

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

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

With regard to the parties' dispute on the merits, the district argues that the IHO erred in determining that the district failed to offer the student a FAPE because the district did not present a witness in support of its documentary evidence.  The district is correct that the IHO's findings were based heavily or exclusively on the lack of a district witness, with little to no discussion or analysis of the district's evidence (see IHO Decision at p. 3).  The case law in this jurisdiction related to IDEA disputes does not provide for a per se rule that a district automatically fails to meet its burden of proof simply because the evidence does not consist of witness testimony.  In such cases, 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 the district call witnesses at the impartial hearing in order to address the parent's due process complaint notice, especially after the district submitted extensive documentation that is required under the procedures of the IDEA itself.^[6]  Thus, as discussed further below, the district's documentary evidence alone could be sufficient to establish the appropriateness of the January 2024 IEP.^[7]

In this case, the district offered into evidence the student's January 2024 IEP, which contained evaluative information from a July 2021 neuropsychological and educational evaluation report, an April 14, 2023 neuropsychological evaluation, an undated Level I Vocational Interview – Student, a December 2023 Level I Vocational Interview – Teacher Assessment, and an Eagle Hill report card for the 2023-24 school year (Dist. Ex. 1).  The July 2021 neuropsychological and educational evaluation report and the December 2023 Level I Vocational Interview – Teacher Assessment were also offered into evidence by the district (Dist. Exs. 4-5).  The April 14, 2023 neuropsychological evaluation report was offered into evidence by the parent (Parent Ex. D).  The district also submitted a prior written notice and the school location letter (see Dist. Exs. 2-3).

According to the January 2024 prior written notice, the January 2024 CSE relied upon an October 2018 neuropsychological assessment, an undated psychoeducational assessment, and a September 2018 social history update; none of these reports were entered into the hearing record (Parent Exs. A-M; Dist. Exs. 1-5).  Despite the prior written notice inaccurately representing what evaluative information the January 2024 CSE relied upon, such was a procedural violation that did not rise to the level of a denial of a FAPE as the January 2024 IEP accurately identified and described the evaluative information the January 2024 CSE used to develop the student's IEP and the parent was present at the January 2024 CSE meeting (see Dist. Ex. 1; see also 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).  Therefore, the district submitted sufficient evidence to enable the IHO to render a fact specific inquiry regarding the issue raised by the parent in the due process complaint notice, specifically, whether ICT services with counseling was an appropriate program for the student (see Dist. Ex. 1).  Since the IHO failed to conduct such an analysis, a fact-based determination must be made as to whether the recommendations made by the January 2024 CSE were appropriate to meet the student's educational needs in light of their circumstances.

A. CSE Process

Before resolving the disputes over whether the program proposed by the district was substantively appropriate, I must address the parent's alleged procedural violations that the January 2024 CSE was improperly composed and that the CSE predetermined its recommendations which denied her a meaningful opportunity to participate in the development of the student's IEP. 

1. CSE Composition

The parent asserts that the IHO erred by not acknowledging the claim in her due process complaint notice that the January 2024 CSE failed to include a regular education teacher (Parent Ex. A at p. 2).  The IHO's decision lacks any recognition, much less analysis, of the issue.  State regulation requires "not less than one regular education teacher of the student whenever the student is or may be participating in the regular education environment" (8 NYCRR 200.3[a][1]; see 20 U.S.C. §1414[d][1][B]; 34 CFR 300.321[a]).  In this instance, the purpose of an ICT setting is to coteach disabled students alongside their nondisabled peers in the same classroom, some courts have held that a regular education teacher is not required on the IEP team at all when an ICT setting is being considered, and thus is not a procedural violation (Y.A. v. New York City Dep't of Educ., 2016 WL 5811843, at *18 [S.D.N.Y. Sept. 21, 2016]; S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *9 [S.D.N.Y. Nov. 9, 2011]).  The debate on who can permissibly serve in the role of a regular education teacher during a CSE meeting in which a blended, co-taught class is considered—a class which often has special education teachers who commonly have a general education certification as well—is increasingly an endless circle, and it is less than certain that a regular education teacher is required at all.  Candidly, I am hard pressed to find that a classroom with nondisabled students and students with IEPs blended together and co-taught is a special class setting rather than a general education setting.  But that does not resolve who can serve in the role of a regular education teacher if one is required.  Nevertheless, the January 2024 CSE did not include a regular education teacher (Dist. Ex. 1).  A factor to consider in determining whether the absence of a regular education teacher impeded the parent's participation in the CSE process to the extent it may have risen to the level of a denial of a FAPE is what the regular education teacher would have added to the discussion at the CSE meeting (see DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *17-*18 [S.D.N.Y. Jan. 2, 2013] [concluding that when parents were allowed to meaningfully participate in the review process, ask questions of and receive answers from CSE members, and express opinions about the appropriateness of the recommended program for the student, the "preponderance of the evidence" did not show that the "failure to include a ninth grade regular education on the CSE was legally inadequate"]).  Although the CSE did not include the participation of a regular education teacher, as further described in the next section of this decision, the parent was able to express her concerns during the CSE meeting (Dist. Ex. 1 at p. 41).  There is no evidence that leads me to conclude that absence of a regular education teacher prevented the parent from meaningfully contributing to the CSE meeting or resulted in a substantive deprivation of educational benefits to the student and, the parent's argument to the contrary that regular education teacher was required because the CSE recommended a general education program is not a persuasive reason in this instance for me to conclude that there was a denial of a FAPE  (see A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *11 [S.D.N.Y. July 30, 2015] [holding that the absence of a regular education teacher at the CSE meeting where an ICT setting was selected as the placement was a procedural violation that did not result in a denial of a FAPE).  Accordingly, overall, the evidence in the hearing record does not lead me to the conclusion that the absence of a regular education teacher—although a procedural violation—impeded the student's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (see J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *7 [S.D.N.Y. Nov. 27, 2012] [concluding that the lack of a regular education teacher did not render an IEP inappropriate when there was no evidence of any concerns stated by the parent during the CSE meeting that required a regular education teacher to resolve]; E.A.M. v. New York City Dep't of Educ., 2012 WL 4571794, at *6-*7 [S.D.N.Y. Sept. 29, 2012]).

2. Parent Participation and Predetermination

In her due process complaint notice the parent argued that the January 2024 CSE failed to discuss promotion criteria, annual goals, management needs, and transition goals and activities, and failed to provide information on the program recommendation despite her asking for clarification. (Parent Ex. A at p. 2).^[8]  The IHO failed to address the parent's contentions.

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

The evidence in the hearing record reflects that the parent attended the January 2024 CSE meeting (see Dist. Ex. 1 at p. 42).  According to the January 2024 IEP, the parent actively participated in the meeting by providing information to the CSE and raising concerns regarding the student's needs (see Dist. Ex. 1 at pp. 20-21, 41).  Notably, under the parent concerns section of the IEP, it states:

We don't think this is adequate to address there [sic] needs and the class is too large[,] they are currently in a 6:1[,] they would be lost[,] and they are very bright and need to be with students with similar abilities. They are also sensitive to loud noise and a large school would also be difficult. They need 24 hour supervision for life skills as reported by the advocate. [The student] gets overwhelmed and cannot think anymore[. T]his is a concern of mom and the class size is important and they need to be challenged. [Eagle Hill] is in agreement with mom and [the] advocate. They have been able to pursue their artistic side and this has helped [the student], and the social pragmatic piece is missing from the program [the CSE is] recommending. The previous schools were not successful for [the student]

(Dist. Ex. 1 at p. 41). 

The January 2024 prior written notice also indicated the same parental concerns (see Dist. Ex. 2).  The parent has not alleged that she did not receive the January 2024 IEP or prior written notice and thus her allegation that she did not receive information about the program recommended by the January 2024 CSE is unsupported by the hearing record.^[9]

Though the parent alleged the January 2024 CSE did not discuss portions of the IEP during the meeting, the IEP contains information regarding the student's management needs, annual goals, promotion criteria, and transition goals and activities (see Dist. Ex. 1 at pp. 21-33, 37-38).  Specifically, the January IEP provided: 28 supports to address the student's management needs; two measurable postsecondary goals with a report on the student's transition needs; 10 measurable annual goals; a set of four coordinated transition activities; and indicated that the student would participate in the same State and district-wide assessments of student achievement that are administered to general education students (id.).^[10]

Thus, in light of the foregoing, the evidence in the hearing record demonstrates that, not only did the parent have an opportunity to participate in the January 2024 CSE meeting held to develop the student's IEP for the 2024-25 school year, but also that the parent actively participated at the CSE meeting and provided information about the student's needs and her concerns about the CSE's recommendations.  There is no evidence that the parent was prevented from raising concerns or providing input into the student's programming.

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

In her due process complaint notice, the parent argued that because the ICT services recommendation were continued from the student's prior IEP and the CSE team was "unwavering in their recommendations," she believed that the CSE predetermined the student's programming (Parent Ex. A at p. 2).

Here, a finding of predetermination is not supported by the evidence in the hearing record.  Initially, predetermination does not arise merely because a CSE recommends a special education program that was similar to previous programs for a student.  Rather, as noted above, predetermination occurs when a CSE arrives at the meeting with a preformed opinion concerning the special education program for the student and does not have an open mind to changes that may be needed or to consider input from the parents (Talley v. Aviles-Ramos et al., 2026 WL 592078, at *14 [S.D.N.Y. Mar. 3, 2026]; S.M. & L.M. v. Eastchester Union Free Sch. Dist., 2026 WL 396110, at *10 [S.D.N.Y. Feb. 12, 2026]).  Here, both the January 2024 IEP and prior written notice indicated the other placement options the January 2024 CSE considered and rejected, which consisted of general education; related services only; special education teacher support services; a 15:1 special class in a community school (high school only); a State-approved nonpublic school–day; and a State-approved nonpublic school–residential (Dist. Exs. 1 at p. 41; 2 at pp. 2-3).  According to the January 2024 IEP and prior written notice, these placement options were rejected because the student required "special education services and support to access the general education setting within an integrated co[-]teaching classroom" and that it was "the least restrictive setting for the student" because they were "a motivated student who want[ed] to do well academically and socially" (id.).

In light of the foregoing and having found that the evidence in the hearing record demonstrates that the parent actively participated in the January 2024 CSE meeting, the hearing record supports a finding that the district did not predetermine the student's program recommendations for the 2024-25 school year.

3. Sufficiency of Evaluative Information

I turn now to the parent's argument in her due process complaint notice regarding the sufficiency of evaluative information before the January 2024 CSE (Parent Ex. A at p. 3).

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

Here, within the parent's due process complaint notice, the specific issue raised regarding the sufficiency of the evaluative information available to the January 2024 CSE was the lack of a classroom observation to guide the CSE's decisions (see Parent Ex. A at p. 3). Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing (Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056).  Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[i][7][i][a]; [j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]).  Indeed, "[t]he parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function.  To permit [the parent] to add a new claim after the resolution period has expired would allow them to sandbag the school district" (R.E., 694 F.3d 167 at 187-88 n.4; see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 [2d Cir. June 18, 2014]). 

When a matter arises that did not appear in a due process complaint notice, the next inquiry is whether the district, through the questioning of its witnesses, "open[ed] the door" to the issue under the holding of M.H. v. New York City Department of Education (685 F.3d at 250-51; see also Bd. of Educ. of Mamaroneck Union Free Sch. Dist. v. A.D., 739 Fed. App'x 79, 80 [2d Cir. Oct. 12, 2018]; B.M., 569 Fed. App'x at 59; J.G. v. Brewster Cent. Sch. Dist., 2018 WL 749010, at *10 [S.D.N.Y. Feb. 7, 2018]; C.M. v. New York City Dep't of Educ., 2017 WL 607579, at *14 [S.D.N.Y. Feb. 14, 2017]; D.B. v. New York City Dep't of Educ., 966 F. Supp. 2d 315, 327-28 [S.D.N.Y. 2013]; N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 584-86 [S.D.N.Y. 2013]; A.M. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 282-84 [S.D.N.Y. 2013]; J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, *9 [S.D.N.Y. Aug. 5, 2013]).

Here, the district did not open the door to any other underlying issues regarding the sufficiency of evaluative information before the January 2024 CSE and, accordingly, this discussion shall be limited to only the alleged lack of a classroom observation (see Tr. pp. 1-74). 

A review of the January 2024 IEP indicates that the CSE did not consider a classroom observation conducted by the district; however, the CSE was able to obtain information regarding the student's learning environment in other ways (see Dist. Ex. 1).  The January 2024 CSE had an Eagle Hill report card from the 2023-24 school year which identified the student's academic strengths and weaknesses, described the student as a hard-working student who actively participated in classroom discussions and did not hesitate to ask questions, and identified some strategies employed by Eagle Hill to assist the student while in the classroom, including using "Grammarly" and other proofreading software, reviewing information learned in earlier classes, learning context and background information prior to starting to read a new book, engaging in group activities, and listening to audio books (Dist. Ex. 1 at pp. 7-18).  Additionally, the IEP reflected reports that the student had "finished the previous academic year strong and made considerable gains," they "bought in and [had] been engaged with the material they [we]re presented with," and they "struggle[d] to focus on material they [we]ren't interested in," although reportedly that had "gotten a little bit better" and the student was "able to follow some social and pragmatic language pieces" (id. at p. 20).  In this instance, because the district had the Eagle Hill report card and other information about the student's performance at Eagle Hill, the lack of a classroom observation did not prevent the district from having the necessary information to develop an IEP for the student.^[11]  Accordingly, the parent's argument that the CSE's failure to conduct and consider a classroom observation to guide its recommendation denied the student a FAPE is also inadequately supported by the evidence the hearing record. 

B. January 2024 IEP

Turning from the CSE meeting to the substance of the January 2024 IEP, the district asserts that the IHO erred in finding that it did not meet its burden to show that the recommendations made by the January 2024 CSE were appropriate to meet the student's educational needs.  A review of the due process complaint notice reveals that the parent's only claim was that the CSE did not address the student's need for "24/7" services for academic and social/emotional support (Parent Ex. A ¶ 6).  Accordingly, the student's needs will be described to provide context for the next issue to be resolved, namely, whether the recommended ICT services and counseling services were appropriate to meet the student's needs rather than a residential setting.

1.The Student's Needs

The sufficiency of the student's present levels of performance and individual needs as described in the January 2024 IEP are not in dispute on appeal.  The student's IEP present levels of performance reflects information from July 2021 and April 2023 neuropsychological evaluation reports (compare Dist. Ex. 1 at pp. 1-5, with Parent Ex. D at pp. 1-4, and Dist. Ex. 4 at pp. 12-14).  The IEP also reflects results of Level I vocational interviews with the student and teacher, and the student's 2023-24 Eagle Hill report card and transcript (Dist. Ex. 1 at pp. 6-20).^[12]

As reflected in the student's January 2024 IEP, the student was reassessed in 2018 and 2022 (Dist. Ex. 1 at p. 2).  At that time, the student exhibited strengths in their verbal abilities, with challenges in working memory and processing speed (id.).  A recommendation was to seek a small school setting with a strong writing program and extra math support, at which point the student was placed at Eagle Hill (id.). 

According to the January 2024 IEP, the student's intellectual abilities were assessed in July 2021 using the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V), resulting in a verbal comprehension composite score of 111, falling at the 77th percentile; a visual spatial composite score of 114, falling at the 82nd percentile; a fluid reasoning composite score of 79, falling at the 8th percentile; a working memory composite score of 88, falling at the 21st percentile; a processing speed composite score of 89, falling at the 23rd percentile; a nonverbal index score of 90, falling at the  25th percentile;  a general ability index score of 100, falling at the 50th percentile; and a cognitive proficiency index score of 85, falling at the 16th percentile (Dist. Exs. 1 at p. 4; 4 at p. 12).

The January 2024 IEP reflected that the student's academic skills were assessed in July 2021 using the Wechsler Individual Achievement Test-Fourth Edition (WIAT-4), resulting in a total achievement score of 80, falling at the 9th percentile; a reading score of 98, falling at the 45th percentile; a reading fluency score of  95, falling at the 37th percentile; a decoding score of 90, falling at the 25th percentile; a dyslexia index score of  92, falling at the 30th percentile; an orthographic processing score of 87, falling at the 19th percentile; a written expression score of 73, falling at the 4th percentile; a mathematics score of 82, falling at the 12th percentile; and a math fluency score of 78, falling at the 7th percentile (Dist. Exs. 1 at p. 5; 4 at p. 14).

Additionally, the January 2024 IEP reflected results of the student's April 2023 administration of the Autism Diagnostic Observation Schedule, Second Edition, Module 4 (ADOS); Autism Diagnostic Interview-Revised (ADI-R); and Social Communication Questionnaire (SCQ) (Parent Ex. D at p. 3; Dist. Ex. 1 at pp. 2-4).  According to the January 2024 IEP, the student was administered the ADOS to better understand their social communication and interaction skills (Dist. Ex. 1 at p. 2).  The student was able to use language correctly to express themselves, and often spoke rapidly and used rehearsed phrases, appearing eager to get all of their thoughts expressed (id.).  The student exhibited no repetition of speech, although there were some instances of stereotyped or rehearsed phrases (id.).  The student described their routine in detail, exhibiting some rigidity in daily tasks indicative of compulsions or rituals (id.).  The student did not use any gestures or nodding, and there was minimal eye contact during the assessment (id.).  The student was able to communicate their feelings and identify the feelings of others (id.).  The student displayed overactive/fidgeting behaviors, a need for routine, and sensory challenges such as having difficulty in loud places and being frequently overstimulated (id. at pp. 2-3).  The student was able to maintain attention to task; however, the student sometimes corrected the examiner or ignored tasks to bring up other subjects (id. at p. 3).  Further, the student was concerned that others found them rude when they did not intend to be, such as accidentally interrupting others and saying offensive things (id.).  The student often did not "understand the humor" in situations and needed "time to reset after loud places or social situations" (id.). 

The January 2024 IEP reflected reports that the student met the criteria for a diagnosis of autism, and continued to meet the criteria for ADHD, developmental coordination disorder, and specific learning disorder with impairments in written language and reading, the latter being in partial remission given significant progress that the student had made (Dist. Ex. 1 at pp. 4, 21-22).  The student's Eagle Hill report card indicated that the student received mostly As and Bs, and one C in chemistry, during the 2023-24 school year (id. at pp. 7-8).

The student's January 2024 IEP featured 10 measurable annual goals to address the student's needs in social/emotional skills, reading, writing, and math (Dist. Ex. 1 at pp. 24-33).  For example, the IEP included annual goals to improve the student's self-esteem, confidence, self-efficacy, reciprocal conversation, and topic maintenance skills; and demonstrate problem solving skills during social conflicts and the ability to recognize their level of anxiety (id. at pp. 24-28).  Academic annual goals were designed to improve the student's ability to use tools to support grade level reading comprehension; improve reading fluency and accuracy by applying phonics/word analysis skills to decode; use graphic organizers/outlines to write well-developed essays; self-edit written work to reduce errors; and use tools to compute multi-step word problems (id. at pp. 28-33).

2. Integrated Co-Teaching Services

The district argues that the student demonstrated cognitive and academic abilities within or near grade level and exhibited the capacity to make meaningful progress in a classroom where ICT services are delivered together with appropriate supports and counseling services.  The district also asserts that its recommended program represents the student's least restrictive environment. 

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

The January 2024 CSE recommended that the student receive ICT services in all general education academic classes (Dist. Ex. 1 at p. 34).  Parent concerns included in the January 2024 IEP indicated that the parent did not believe the ICT services recommended by the CSE were adequate to address the student's needs, the class where they were delivered was too large, and the student "would be lost" and become overwhelmed (id. at p. 41).  Additionally, the parent indicated that the student was sensitive to loud noise, therefore a large school would be difficult for them (id.).  According to the parent, the January 2024 IEP failed to include a "social pragmatic" component, and the student needed 24-hour supervision for life skills (id.). 

Contrary to assertions of the parent, the January 2024 CSE recommended appropriate supports for the student to address their areas of need.  Specifically, to address the student's classroom management needs, including executive functioning and attention, the January 2024 IEP provided: multisensory, small group, hands-on, differentiated, and individualized instruction; teacher scaffolding; support with executive functioning, organization, and annotations; graphic organizers; and graph paper (Dist. Ex. 1 at p. 21).  Further, the IEP provided outlines, sentence starters, visual and graphic depictions of math problems, teacher modeling, "[e]xemplars," repetition, redirection, directions broken down step by step, access to programmatically available assistive technology such as speech to text and a laptop, extra time to complete assignments, directions and questions read to help with comprehension, breaks during academic tasks, fidgets, focus prompts, a calculator, learning opportunities, pre-teaching, and preferential seating near the teacher (id. at p. 22). 

In addition, contrary to the parent's assertion that the student's social and pragmatic needs were not addressed in the January 2024 IEP, many of the student's annual goals, described above, were developed in consideration of their social/emotional and communication needs including improving: the use of coping strategies when anxious, the ability to verbally advocate for themself, and their self-esteem, interaction skills with others, ability to problem solve during social conflict, conversation skills, and ability to deal with anxiety (see Dist. Ex. 1 at pp. 24-33).  In order to achieve these goals, the January 2024 CSE recommended two 45-minute sessions per week of individual counseling and one 45-minute session per week of counseling in a group setting (id. at p. 34). 

Regarding the parent's concerns about the student's need for supervision of life skills, a teacher report reflected in the January 2024 IEP indicated that the student effectively transferred skills and knowledge learned into other settings, their goal of attending a four year college was realistic, and the skills needed to achieve that goal was to improve writing skills (Dist. Ex. 1 at pp. 6-7).  The term one Eagle Hill report card information from the 2023-24 school year reflected in the IEP indicated that regarding residential life, the student had "acclimated well to their new environment," was doing well asking for help, and although their "room care need[ed] a bit of work," the student was "receptive and respectful to being asked to tidy up" (id. at p. 8).  Additionally, the IEP noted reports that mornings could be "a bit of a challenge" for the student, and they were sometimes late leaving the dorm for the school day, but it was something they were working on (id.).  The term two residential life information included in the IEP indicated that the student continued to need reminders to tidy up their room, but they were polite and did as requested, and continued to work on getting out on time in the morning (id. at p. 12).  The IEP indicated that during term three, the student had done well regarding "timeliness," and was more aware they needed to "work on their room care" (id. at p. 15).  In terms of the student's needs as reported by the parent in 2021 related to tasks of daily living such as eating, dressing, washing, hygiene, and domestic and community-based skills, the evidence in the record indicated that even in 2021 they were an area of relative strength for the student and while possibly not on par with same-aged peers, there is no evidence that such deficits were serious obstructions to the student's functioning in school (Dist. Ex. 4 at p. 7).

Although the parent, the dean of Eagle Hill, and the July 2021 neuropsychological evaluator opined that the student required a residential placement, the evidence in the hearing record did not establish that the student required a residential setting, as the student did not have any educational needs that required a residential placement and could not be addressed with ICT services and counseling.^[13]

The January 2024 IEP stated that "[the student was] a motivated student who want[ed] to do well academically and socially" but required special education services and supports to access the general education setting within a classroom that delivered ICT services, which was "the least restrictive setting for the student" (Dist. Ex. 1 at p. 41).  Once a CSE determines that an appropriate class placement for the student is available within the district, the district is not obligated to consider a more restrictive setting, such as a nonpublic school (see B.K., 12 F. Supp. 3d at 359 [indicating that "once the CSE determined that a 6:1:1 placement was appropriate for [the student], it was under no obligation to consider more restrictive programs"]; E.F., 2013 WL 4495676, at *15 [explaining that "under the law, once [the district] determined . . . the [LRE] in which [the student] could be educated, it was not obligated to consider a more restrictive environment"]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *7-*8 [S.D.N.Y. Mar. 19, 2013] [finding that "[o]nce the CSE determined that [the public school setting] would be appropriate for the [s]tudent, it had identified the [LRE] that could meet the [s]tudent's needs and did not need to inquire into more restrictive options"]).    Additionally, the parents' preference for a "smaller class size" illustrates a common predicament: that often what is considered "small" in terms of class size is in the eye of the beholder (M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 335 [E.D.N.Y. 2012] [holding "[t]hat the size of the class in which [the student] was offered a placement was larger than his parents desired does not mean that the placement was not reasonably calculated to provide educational benefits"], aff'd, 725 F.3d 131 [2d Cir. 2013]), but a parents' decision to provide a smaller classroom ratio is not in and of itself conclusive evidence of the question of whether a public placement provides appropriate services to meet a student's needs (see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015]).

Accordingly, the evidence in the hearing record supports the January 2024 CSE's recommendation of ICT services for the student for the 2024-25 school year.

C. Assigned Public School Site and School Location Letter

The parent alleged in her due process complaint notice that she did not receive a public school placement for the student for the 2024-25 school year and that the district was required to have an appropriate placement for the student by August 15, 2024 (Parent Ex. A at p. 4).^[14]

In general, the IDEA and State regulations require that a district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability (34 CFR 300.323[a]; 8 NYCRR 200.4[e][1][ii]; Cerra, 427 F.3d at 194; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]).^[15]  The IDEA and State regulations also provide parents with the opportunity to offer input in the development of a student's IEP, but they do not permit parents to direct through veto a district's efforts to implement each student's IEP (see T.Y. v. New York City Dep't of Educ., 584 F.3d at 420 [2d Cir. 2009], cert. denied, 560 U.S. 904 [2010]; see also Deer Val. Unified Sch. Dist. v L.P., 942 F. Supp. 2d 880, 889 [D. Ariz. 2013]).  Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320).  With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; see Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]).  Additionally, a district "must ensure that . . . [t]he child's IEP is accessible to each regular education teacher, special education teacher, related service provider, and any other service provider who is responsible for its implementation" (34 CFR 300.323[d][1]; C.U. v. New York City Dep't of Educ., 2014 WL 2207997, at *13 [S.D.N.Y. May 27, 2014]).

Although federal and State regulations do not expressly state that a district must provide a written notice to the parents in any particular format describing the "bricks and mortar" location to which a student is assigned and where the student's IEP will be implemented, once an IEP is developed and a parent consents to a district's provision of special education services, the IDEA is clear such services must be provided to the student by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320).  When determining how to implement a student's IEP, the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation (see K.L.A. v. Windham Southeast Supervisory Union, 371 Fed. App'x 151, 154, 2010 WL 1193082, at *2 [2d Cir. Mar. 30, 2010]; T.Y., 584 F.3d at 420; White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 [5th Cir. 2003]; see Veazey v. Ascension Parish Sch. Bd., 121 Fed. App'x 552, 553 [5th Cir. Jan. 5, 2005]; A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 [4th Cir. 2004]; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 [2d Cir. 1980]; Tarlowe, 2008 WL 2736027, at *6).  To be clear there is no requirement in the IDEA that a student's IEP name a specific school location (see, e.g., T.Y., 584 F.3d at 420).  Moreover, parents generally do not have a procedural right to participate in the selection of a specific locational placement of their child (see Luo v. Baldwin Union Free Sch. Dist., 2013 WL 1182232, at *5 [E.D.N.Y. Mar. 21, 2013], aff'd, 556 Fed. App'x. 1, 2013 WL 6726899 [2d Cir Dec. 23, 2013]; J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *10 [S.D.N.Y. Feb. 20, 2013]; see also R.E., 694 F.3d at 191-92 [finding that a district may select a specific public school site without the advice of the parents]; F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *11 [S.D.N.Y. Oct. 16, 2012] [noting that parents are not procedurally entitled to participate in decisions regarding public school site selection]).

However, although not explicitly stated in federal or State regulation, implicit in a district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP (see T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 [S.D.N.Y. Mar. 30, 2016] ["a parent must necessarily receive some form of notice of the school placement by the start of the school year"]; Tarlowe, 2008 WL 2736027, at *6 [a district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year]).  While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless follows that it must be shared with the parent before the student's IEP may be implemented.

Here, the student's January 2024 IEP was to be implemented on January 17, 2024 with a projected annual review date of January 8, 2025 (Dist. Ex. 1 at p. 1).  The district sent a school location letter to the parent dated January 19, 2024, which indicated the specific public school site where the January 2024 IEP would be implemented (Dist. Ex. 3).  Based on the student's annual review date, the January 2024 school location letter also indicated the public school location for the 2024-25 school year.  The evidence in the hearing record also indicates that the parent knew that the student had an assigned public school site for the 2024-25 school year, as she was in contact with the proposed school's parent coordinator in August 2024 to set up a school tour (Parent Ex. C at p. 2).  Accordingly, the parent's allegation that the student did not have a public school location to implement their IEP during the 2024-25 school year is without merit. 

The same can also be said regarding the parent's claim that the district was required to have an assigned school location by August 15, 2024 (Parent Ex. A at p. 4).  The student in this matter was recommended for a 10-month school year program, meaning the student's program for the 2024-25 school year would begin on or around September 5, 2024 (see Dist. Ex. 1).^[16]  Accordingly, the district informed the parent on January 19, 2024 of the "bricks and mortar location" of the special education program and related services in a student's January 2024 IEP well before the start of the 2024-25 school year (see Dist. Ex. 3).

In its answer to the district's cross-appeal the parent argues that the district did not respond to her request for more information regarding the assigned public school or her request to tour the assigned public school.

Regarding the parents' ability to tour an assigned public school site, the United States Department of Education's Office of Special Education Programs (OSEP) has opined that the IDEA does not provide a general entitlement to parents of students with disabilities or their professional representatives to observe proposed school placement options for their children (Letter to Mamas, 42 IDELR 10 [OSEP 2004]; see G.J. v. Muscogee County Sch. Dist., 668 F.3d 1258, 1267 [11th Cir. 2012] [noting that rather than forbidding or mandating access for parents, "the process contemplates cooperation between parents and school administrators"]; J.B. v. New York City Dep't of Educ., 242 F. Supp. 3d 186, 195 [E.D.N.Y. 2017] [noting that the IDEA does not afford parents a right to visit an assigned school placement before the recommendation is finalized]; J.C. v New York City Dep't of Educ., 2015 WL 1499389, at *24 n.14 [S.D.N.Y. Mar. 31, 2015] [acknowledging that courts have rejected the argument that parents have a right under the IDEA to visit assigned schools and listing authority], aff'd, 643 Fed. App'x 31 [2d Cir. Mar. 16, 2016]; E.A.M., 2012 WL 4571794, at *11 [finding that a district has no obligation to allow a parent to visit an assigned school or proposed classroom before the recommendation is finalized or prior to the school year]; S.F., 2011 WL 5419847, at *12).^[17]

On the other hand, there is district court authority indicating that a parent has a right to obtain information about an assigned public school site (see H.L. v. New York City Dep't of Educ., 2019 WL 181307, at *9 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 2015 WL 5564446, at *11-*18 [S.D.N.Y. Sept. 21, 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U., 2014 WL 2207997, at *14-*16 [holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it]).  

Review of the January 2024 school location letter shows that the parent was invited to visit the assigned public school location and was provided with the name and phone number of a contact person to arrange for such visit (Dist. Ex. 3).  The parent contacted the proposed school location in February and March 2024 to schedule a school tour, but it was not until August 12, 2024 that she received a response (Parent Ex. C).  In an email from the proposed school's parent coordinator to the parent on August 12, 2024, the coordinator requested the parent call her on Monday, August 19, 2024, when the school principal was back in the office to "set up something" (id.).  There is no information on what actions were taken by the parent or the district after such date other than the parent sending a 10-day notice letter to the district on August 15, 2024 (see Parent Ex. B).^[18]

As discussed above, the district is not required to allow a parent to visit an assigned school (see J.B., 242 F. Supp. 3d at 195; J.C., 2015 WL 1499389, at *24 n.14; E.A.M., 2012 WL 4571794, at *11; S.F., 2011 WL 5419847, at *12).  However, while a general entitlement to visit an assigned school is not supported by the relevant legal authority, there is some authority that a district's failure to accommodate a parent's inquiries concerning an assigned school could, under certain circumstances, constitute a procedural violation that could either contribute to a finding that FAPE was denied to a student or in itself rise to the level of a FAPE denial.  Such circumstances, however, are not present here.  While the evidence in the hearing record supports a finding that there were some communication difficulties in arranging for a visit to the assigned school and a school visit ultimately was not scheduled, the district did provide the parent with information pertaining to how to contact the school and to arrange for a visit and did not ignore the parent's requests to visit the school or refuse to allow a school visit (see Parent Ex. C; Dist. Ex. 3).  Moreover, while a parent need not particularize his or her questions and concerns in order to justify a request to learn about an assigned school, it does not appear in this instance that the parent sought any information regarding the assigned school on August 19, 2024, when the school principal was back in the office.  Instead, the parent opted to send a 10-day notice letter to the district on August 15, 2024.  Accordingly, the parent's argument that the district denied the student a FAPE on the ground that the parent was not able to visit the assigned school is unavailing.

In her answer to the district's cross-appeal, the parent argued that the district had not established that the assigned public school would provide all the mandated services in the January 2024 IEP.  In addition, the parent was particularly concerned about the support services available to the student at the assigned school site (Parent Ex. C at p. 1). 

In response, the district argues there were no specific allegations raised in the parent's due process complaint notice regarding the assigned public school's ability to implement the student's IEP program, offer ICT services and counseling, and/or have a seat available for the 2024-25 school year.  A review of the due process complaint notice indicates that the parent did raise a concern regarding the assigned public school's special education services but did not specifically claim that the proposed school would not be able to implement the January 2024 IEP.  Regardless, even if the undersigned was to find that the parent properly raised an issue with the assigned public school's ability to implement the January 2024 IEP, such claims would be speculative. 

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., 584 F.3d at 419; 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., 746 F.3d at 79).  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, 5-6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. Mar. 16, 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. Dec. 30, 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 M.E. v. New York City Dep't of Educ., 2018 WL 582601, at *12 [S.D.N.Y. Jan. 26, 2018]; 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. v. New York City Dep't of Educ., 2016 WL 3981370, at *13 [S.D.N.Y. Mar. 31, 2016]; 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 student never attended the proposed public school site pursuant to the January 2024 IEP.  Any conclusion that the district would not have implemented the student's IEP or that the assigned public school site could not meet the student's needs would necessarily be based on impermissible speculation, and the district was not obligated to present retrospective evidence at the impartial hearing regarding the execution of the student's programming under the IEP or to refute the parent's claims (R.B., 589 Fed. App'x at 576; 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]).  In view of the foregoing, the parent cannot prevail on her claims regarding the assigned public school's ability to implement the program recommended in the student's January 2024 IEP.

Accordingly, the IHO erred in his determination that the district failed to offer the student a FAPE for the 2024-25 school year and that determination is reversed.

VII. Conclusion

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]).  In this case, the IHO erred in failing to address the detailed documentary evidence presented by the parties in favor of a technicality that no witness testified, all while acknowledging that it is "not necessarily fatal."  The IHO was required to analyze the documentary evidence with respect to the substantive disputed issues and did not do so in favor of rendering a two-sentence analysis which was simply inadequate under the circumstance of this case.  Having found that the district offered the student a FAPE for the 2024-25 school year, I need not reach the issues of whether Eagle Hill was 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 that I need not reach them in light of the determinations made herein.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision, dated February 27, 2025, is modified by reversing those portions which found that the district failed to offer the student a FAPE for the 2024-25 school year.

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Footnotes

[1] The hearing record includes references to the student using different pronouns (see Tr. pp. 47, 53; Parent Exs. A at p. 4; B at p. 1; G at p. 1; Dist. Ex. 1 at p. 18).  To the extent possible, the student will be referred to by their preferred pronouns in this decision or as "the student" when grammatically necessary.

[2] The student's eligibility for special education as a student with an other health impairment is not in dispute (see 34 CFR 300.8[c][9]; 8 NYCRR 200.1[zz][10]).

[3] Eagle Hill has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d]; 200.7).

[4] There is a slight discrepancy in the evidence regarding the date of the meeting, but it is not material to the parties' dispute (compare Dist. Ex. 2 with Parent Ex. A).

[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] If the parent believed that there were particular facts or events during the CSE process that were relevant that should have come to light and were not captured by or, more importantly, contradicted the documentary evidence offered by the district, the parent, as a participant in the impartial hearing process, was free to try to establish a different version of the facts, offer contrary documentation, or "compel the attendance of witnesses and to confront and question all witnesses at the hearing" such as other witnesses, including but not limited to the district personnel that participated in the January 2024 CSE meeting (8 NYCRR 200.5[j][3][xii]).  The IHO was authorized to issue subpoenas for this purpose if necessary (8 NYCRR 200.5[j][3][iv]).

[7] If a district intends to rest its case on documentary evidence alone, the district should offer into evidence all documentation pertaining to the evaluation of the student and the CSE's recommendations, including prior written notices (34 CFR 300.503[a]; 8 NYCRR 200.5[a]; see also L.O. v. New York City Dep't of Educ., 822 F.3d 95, 110-11 [2d Cir. 2016] [discussing the consequences of a CSE's failure to adequately document evaluative data, including that reviewing authorities might be left to speculate as to how the CSE formulated the student's IEP]).

[8] Management needs, are defined by State regulations as "the nature of and degree to which environmental modifications and human material resources are required to enable the student to benefit from instruction" and shall be determined in accordance with the factors identified in the areas of academic or educational achievement and learning characteristics, social and physical development (8 NYCRR 200.1[ww][3][i][d]).

[9] Although the parent testified, the testimony did not cover the January 2024 CSE meeting as a topic  (see Tr. pp. 55-61; Parent Ex. J).

[10] The parent alleged in her due process complaint notice that the student's transition goals, activities, and the student's "plans moving forward" were not discussed "at depth" but the parent does not indicate what she means by "at depth" (Parent Ex. A at p. 3).  As indicated above, there is a detailed report, and four coordinated set of transition activities contained within the January 2024 IEP to assist the student with their transition from high school to college (Dist. Ex. 1 at pp. 23-24, 37).

[11] State regulations dictate that an initial evaluation of a student include a classroom observation (see 8 NYCRR 200.4[b][1]).  However, as the January 2024 CSE was not an initial evaluation of the student, but an annual review, the federal regulations require that for a re-evaluation a CSE must review existing evaluative data, when the January 2024 CSE did through the current evaluations and the Eagle Hill report card for the 2023-24 school year (34 CFR 300.305[a]; Dist. Ex. 1).  Thus, it is not a forgone conclusion that the lack of a classroom observation when conducting an annual review is a procedural violation.

[12] According to the January 19, 2024 prior written notice, the January 2024 CSE reviewed an October 30, 2018 neuropsychological assessment, an undated psychoeducational assessment, and a September 27, 2018 social history update (Dist. Ex. 2 at p. 3).  However, none of these documents were included in the hearing record (see Parent Exs. A-M; Dist. Exs. 1-5). 

[13] With respect to developing the January 2024 IEP and the CSE's reliance on the July 2021 neuropsychological evaluation report, a CSE must consider independent evaluations whether obtained at public or private expense, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]).  However, consideration does not require substantive discussion, or that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight or adopt their recommendations (Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 753 [2d Cir. 2018], citing T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993]; Watson, 325 F. Supp. 2d at 145 [noting that even if a district relies on a privately obtained evaluation to determine a student's levels of functional performance, it need not adopt wholesale the ultimate recommendations made by the private evaluator], aff'd, 142 Fed. App'x 9 [2d Cir. July 25, 2005]; see Michael P. v. Dep't of Educ., State of Hawaii, 656 F.3d 1057, 1066 n.9 [9th Cir. 2011]; K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 805-06 [8th Cir. 2011]; Evans v. Dist. No. 17, 841 F.2d 824, 830 [8th Cir. 1988]; James D. v. Bd. of Educ. of Aptakisic-Tripp Community Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 818 [N.D. Ill. 2009]).

[14] The parent's due process complaint also raised allegations regarding the 2023-24 school year; however, such claims will not be addressed as the 2023-24 school year is not at issue on appeal (Parent Ex. A at p. 5).

[15] In New York State, the school year is defined as the "period commencing on the first day of July in each year and ending on the thirtieth day of June next following" (N.Y. Educ. Law § 2[15]). 

[16] A copy of the 2024-25 school year calendar can be found on the district's website at https://www.schools.nyc.gov/calendar/2024-2025-school-year-calendar

[17] Nothing in this decision is intended to discourage districts from offering parents the opportunity to view school or classroom placements, as such opportunities can only foster the collaborative process between parents and districts envisioned by Congress as the "core of the [IDEA]" (Schaffer v. Weast, 546 U.S. 49, 53 [2005], citing Rowley, 458 U.S. at 205-06; see also 20 U.S.C. § 1400[c][5]).

[18] In the 10-day notice, the parent reiterated her attempts to tour the proposed school location after receiving the school location letter on January 19, 2024, but failed to mention that she also reached out on August 9, 2024 to the proposed school and received a response on August 12, 2024 to set up a school tour (Parent Exs. B at p. 2; C at p. 2).