Application of a Student with a Disability

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-208

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

Appearances: The Law Office of Elisa Hyman, PC, attorneys for petitioner, by Sara E. Frankel, Esq.

Liz Vladeck, General Counsel, attorneys for respondent, by Brian J. Reimels, 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 requests for respondent (the district) to provide compensatory education to her son related to the 2020-21, 2021-22, and 2022-23 school years and denied her request for district funding for independent educational evaluations (IEEs) of the student.  The appeal must be sustained in part. 

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  Similarly, when a preschool student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local Committee on Preschool Special Education (CPSE) that includes, but is not limited to, parents, teachers, an individual who can interpret the instructional implications of evaluation results, and a chairperson that falls within statutory criteria (Educ. Law § 4410; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.1[mm]. 200.3, 200.4[d][2], 200.16; see also 34 CFR 300.804).  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 hearing record reflects that the student received services through an Early Intervention Program (EIP) that included applied behavior analysis (ABA) services, occupational therapy (OT), physical therapy (PT), and speech-language therapy (Parent Ex. D at p. 2; Dist. Ex. 5 at p. 2).^[1]  The parent reported that the student also received additional ABA services funded through medical insurance (Tr. pp. 311-12).

According to an April 2019 psychological evaluation, the student showed symptoms warranting an autism spectrum disorder (ASD) diagnosis (Parent Ex. I at p. 14).^[2]  As part of that evaluation, the parent's responses on a Vineland Adaptive Behavior Scales-II rating form yielded an adaptive behavior composite in the low range, with notably delayed communication skills (id. at pp. 11, 14).  The evaluator's recommendations included having the student participate in a center-based program to aid with socialization and following routines (id. at p. 14).

In a letter dated April 22, 2020, the parent requested that a CPSE evaluate the student due to her concerns about the student's speech and cognitive delays and that the student might "fall behind in a typical developing classroom" (Parent Ex. J). 

On May 13, 2020, as part of the student's transition from the EIP to preschool, the parent selected Yeled v' Yalda (Yeled) from the district's list of agencies to complete the student's initial CPSE evaluation for special education eligibility (Dist. Ex. 1; see Parent Exs. K; L; Dist. Ex. 2).  By email dated July 15, 2020, the parent provided the CPSE with letters from the student's early intervention speech-language provider and the student's center-based ABA classroom teacher in anticipation of a CPSE meeting (Parent Ex. BB; see Parent Ex. WW ¶¶ 8-9).

A CPSE convened on July 16, 2020 and, after finding the student eligible for preschool special education services as a preschool student with a disability, developed an IEP with a projected implementation date of September 1, 2020 (Parent Ex. B at pp. 1-3).  The July 2020 CPSE recommended that the student receive, on a 12-month basis, special education itinerant teacher (SEIT) services for eight hours per week, three 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual OT, and two 30-minute individual sessions per week of PT (id. at pp. 1, 17).^[3] 

During the 2020-21 school year, the student attended a center-based preschool program at an early childhood center operated by Yeled, where he received eight hours per week of 1:1 ABA services provided by the district, and approximately 25 hours per week of 1:1 ABA instruction at home through insurance (Parent Ex. WW ¶¶ 21, 22, 27; see Tr. p. 318; Parent Ex. II). 

According to the parent, a CPSE did not convene to develop a new IEP for the student for the 2021-22 school year (Parent Ex. WW ¶¶ 45, 46).  The student remained at Yeled's center-based preschool program for the 2021-22 school year, where he continued to receive 1:1 ABA services (Parent Ex. WW ¶¶ 44, 47, 50, 51). 

By prior written notice dated March 11, 2022, the district informed the parent that the principal requested an evaluation of the student because the student was "aging out of CPSE services," and it was needed to determine the student's eligibility for special education services as a school-aged student (Parent Ex. U at pp. 5-6).  The district recommended that a social history update and a classroom teacher report/interview be conducted (id.).  The district asked the parent to complete a form indicating her consent for the student to receive additional assessments, and the district informed the parent that she had the right to request new assessments (id. at pp. 6, 59).  A copy of the procedural safeguards notice was attached to the prior written notice for the parent's review (id. at pp. 8-58).  On March 31, 2022, the parent signed the consent form for additional assessments, indicating her consent to have the student evaluated (Parent Ex. N).   

A CPSE reconvened on April 5, 2022 and determined that the student's preschool special education and related service recommendations did not need to be adjusted from the July 2020 IEP (Parent Ex. SS at pp. 1-2).  Therefore, the April 2022 CPSE recommended the student receive 12-month services for summer 2022 consisting of eight hours per week of SEIT services, three 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual OT, and two 30-minute sessions per week of individual PT (id. at pp. 1-2, 23-24).

On May 4, 2022, a CSE convened for the student's "turning five" meeting, determined that the student was eligible for special education services as a student with a speech or language impairment, and developed an IEP for school-age services with a projected implementation date of September 6, 2022 (Parent Ex. Z at pp. 1, 28).^[4]  The May 2022 CSE recommended that the student receive, for the 10-month school year, three periods per week of group special education teacher support services (SETSS) in English language arts; two periods per week of group SETSS in math; three 30-minute sessions per week of individual OT; two 30-minute sessions per week of individual PT; two 30-minute sessions per week of individual speech-language therapy; and one 30-minute session per week of speech-language therapy in a group of two (id. at pp. 23-24).^[5] 

In a prior written notice dated May 14, 2022, the district notified the parent of the May 2022 CSE's recommendations for the summer preschool services (Parent Ex. AA).  In a prior written notice dated June 10, 2022, the district again summarized the May 2022 CSE's recommendations and informed the parent of the student's assigned school site for the upcoming school-age programming (Dist. Ex. 11). 

The parent disagreed with the May 2022 CSE's recommendations, in part asserting that the student required "1:1 special education instruction" and "1:1 ABA services" (Parent Ex. WW ¶ 71).  She enrolled the student at Gesher Early Childhood Center (Gesher) in September 2022, where he was placed in an inclusion kindergarten classroom (id. ¶¶ 70, 72).

A. Due Process Complaint Notice

In a due process complaint notice dated September 8, 2022, consisting of 81 enumerated paragraphs and a number of additional subparagraphs, the parent, by her counsel, alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2020-21, 2021-22, and 2022-23 school years (Parent Ex. A at pp. 1-2).  The parent alleged that the district violated numerous procedural and substantive requirements of the IDEA including, but not limited to:  the district failed to conduct timely and appropriate evaluations of the student; the district failed to develop substantively and procedurally appropriate IEPs and placements for the student; the district failed to fully implement the recommendations in the student's IEPs for the school years at issue; the district failed to ensure that certified, licensed, and qualified staff were providing the student's special education and related services; the district failed to provide the parent with copies of prior written notices while the student was in preschool, and failed to provide an adequate prior written notice during the turning five process; the district failed to provide a legally sufficient procedural safeguards notice or a parent handbook; the district denied the parent "meaningful access" to the special education process; the district predetermined the outcome of the student's CSE and CPSE meetings; the district violated Section 504 of the Rehabilitation Act; and the district discriminated against the student (id. at p. 2).  Among other allegations, the parent also alleged that the district did not adequately evaluate the student in every area of suspected disability, and that the district failed to identify whether the student had an autism spectrum disorder and consider autism as the student's disability classification (id. at pp. 4, 6-7).

With respect to the parent's requests for relief, the parent asked, among other things, that the district "prospectively fund" IEEs of the student "on an interim basis to inform the record" or in the alternative, that the IEEs be awarded as final relief (Parent Ex. A at p. 12).  In addition, for the district's alleged three school-year failure to offer a FAPE and for any services missed as part of a request for pendency, the parent requested that the district fund compensatory education services to include, among other things, 1:1 instruction with a research-based strategy (such as ABA), additional SEIT services, executive functioning support, behavior therapy, assistive technology and training in its use, "services to address anxiety," vision services, and related services (id. at pp. 12-13).  The parent additionally requested that the district "fund an increase in 1:1 instruction and related services," "so that the [p]arent can use their insurance-funded ABA after school" and that any services ordered should be delivered by providers of the parent's choosing at "enhanced market rates" (id. at p. 13).  The parent also sought reimbursement for out-of-pocket expenses (id.). 

B. Impartial Hearing Officer Decision

The parties appeared before an IHO with the Office of Administrative Trials and Hearings (OATH) on 47 dates spanning from December 2, 2022 through February 10, 2025 (Tr. pp. 1-1472; Feb. 7, 2025 Tr. pp. 1469-95; Feb. 10, 2025 Tr. pp. 1496-01).^[6]  During the proceedings, the IHO issued an interim decision dated December 30, 2022, finding that the student's pendency services were based on the student's July 2020 CPSE IEP (IHO Ex. I at pp. 1, 5).^[7] 

Also during the proceedings, on February 16, 2023, the parent submitted a written motion seeking an order of interim IEEs in order to inform the record "in terms of the student's program and compensatory education" at reasonable market rates (IHO Ex. II[B1]).  The parent submitted a supplemental motion dated March 13, 2023 to address defenses raised by the district and to assert that she disagreed with both the district's initial evaluations conducted in 2020 and the "turning five" reevaluation (IHO Ex. II [B2] at pp. 1, 6-7, 9-11).  The district submitted a brief in opposition to the parent's motions for IEEs dated May 5, 2023 (IHO Ex. II[D]).  On January 23, 2024, the parent submitted a closing brief and memorandum, as well as a proposed interim order, in support of her request for interim IEEs (IHO Exs. II[F1], [F2]). 

In an interim decision dated January 31, 2024, the IHO denied the parent's interim requests for IEEs (IHO Ex. II[A]).  The IHO indicated that the May and June 2020 evaluations conducted by Yeled were not obtained by the school district, but rather that the parent chose Yeled to conduct the evaluations and they were conducted at public expense (id. at p. 10).  The IHO also noted that it was not relevant whether the parent agreed with the Yeled evaluations because the parent chose Yeled and the parent is entitled to only one IEE at public expense each time the district conducted an evaluation for which the parent disagreed (id.).  Accordingly, the IHO found that the evaluations conducted by Yeled were an IEE at public expense, and therefore denied the parent's requests for IEEs (id. at pp. 10-11). 

In a final decision dated February 28, 2025, the IHO found that the district followed the procedural and substantive requirements of the IDEA for the 2020-21 school year (IHO Decision at p. 21).  The IHO found that the July 2020 CPSE was properly composed and that the district provided credible testimony about its recommendations (id. at pp. 21-22).  Further, the IHO determined that all the evaluations requested by the parent were considered by the CPSE and funded by the district (id. at p. 22).  The IHO concluded that the district provided a FAPE to the student for the 2020-21 school year and declined any relief for claims related to that school year (id. at pp. 22, 27, 38-40). 

With respect to the 2021-22 school year, the IHO found that the district failed to offer the student a FAPE because there was no evidence of an updated preschool IEP being developed for that school year (IHO Decision at pp. 22, 26-27, 38).  With respect to the parent's unilateral program, the IHO found that parent failed to sustain her burden because the hearing record consisted of general information about the services provided (id. at p. 28).  The IHO also found that progress reports from Yeled showed that the student made little to no progress, that the hearing record did not contain any reports related to ABA services, and that the parent's witnesses did not provide any testimony about the 2021-22 school year (id.).  Regarding equitable considerations, the IHO found no evidence that the parent failed to cooperate with the district, that equitable considerations supported the parent's request for reimbursement or direct payment, but then stated that the parent did not meet the third Burlington/Carter criterion (id. at pp. 28-29).  The IHO then proceeded to deny the parent's request for funding of "services rendered by" Yeled for the 2021-22 school year (id. at p. 29).  Regarding the parent's request for compensatory services, the IHO found there was no testimony regarding how the "large number of hours requested were to be utilized and apportioned going forward, [or] how the large bank of hours would assist the student" had he not been denied a FAPE for the 2021-22 school year (id. at p. 30).  The IHO indicated that there was also no evidence that the requested compensatory services would lead to the student's progress, and there was no report regarding any ABA services that may have been in place (id.). 

Regarding the 2022-23 school year, the IHO found that the district provided a FAPE because the district provided adequate explanations for the recommendations in the May 2022 IEP, which were supported by reports and assessments that were reviewed by the May 2022 CSE (IHO Decision at pp. 22-23).  The IHO also found that the district followed the procedural requirements of the IDEA, and that the "2020" CSE was duly constituted as detailed in the "CPSE IEP" (id. at p. 23, citing Parent Ex. Z [the May 2022 "turning 5" IEP]).^[8] 

In addition, the IHO was not persuaded by the parent's claim that the district failed to identify the student with an autism spectrum disorder, as the IHO found no indication that the student received a diagnosis of autism spectrum disorder (IHO Decision at pp. 23-24).  The IHO also found that the hearing record did not support a finding of discriminatory conduct on the part of the district that would support the parent's Section 504 claims (id. at p. 38).  The IHO additionally indicated that there was no evaluation recommending ABA services for any of the school years at issue (id. at p. 32).  The IHO denied all of the parent's requests for compensatory education services, except for the provision of unimplemented pendency services (id. at pp. 32-34).  The IHO further denied the parent's request for IEEs as final relief based on her finding that the parent chose Yeled to conduct the initial evaluation so there was no district evaluations to which the parent disagreed (id. at pp. 38, 40).  The IHO did, however, direct the district to reconvene and assess if the student required any further evaluations based on the hearing record (id. at p. 38).  

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding that the district offered the student a FAPE for the 2020-21 and 2022-23 school years, and failing to award adequate compensatory education services and IEEs.^[9]  Regarding the 2020-21 school year, the parent asserts that the district failed to provide the parent a procedural safeguards notice or a prior written notice for the student's initial evaluation; failed to provide the parent a prior written notice after the July 2020 CPSE meeting; that the July 2020 CPSE was invalidly constituted; and that the parent was denied meaningful participation in the development of the July 2020 CPSE IEP.  The parent further alleges the July 2020 CPSE IEP failed to address the student's communication, oral motor, and functional delays; that the July 2020 CPSE ignored recommendations and evaluations; and that the IHO erred in finding that the student did not have a diagnosis of autism spectrum disorder.^[10]  In addition, according to the parent, the district did not timely implement the July 2020 CPSE IEP. 

With respect to the 2021-22 school year, the parent contends that the IHO erred in denying an award of compensatory education services.  The parent contends that the IHO used an incorrect legal framework, and that evaluative data is not needed to award compensatory education.  The parent also alleges that the district failed to implement all of the student's recommended special education and related services for the 2021-22 school year. 

For the 2022-23 school year, the parent alleges, among other things, that the IHO erred in finding that the district offered the student a FAPE.  Procedurally, the parent contends that the May 2022 CSE was improperly constituted because there was no occupational therapist, speech-language therapist, behavioral specialist, or autism expert in attendance, that the district failed to provide a school location letter, and that the district did not conduct sufficient evaluations.^[11]  Substantively, the parent contends that the May 2022 IEP improperly terminated the student's 1:1 instruction; failed to address the student's behavioral needs; incorrectly terminated the student's 12-month school year services; failed to address the student's oral motor, articulation, and auditory processing deficits; failed to address activities of daily living (ADL) skills; included inappropriately large and insufficiently intensive classroom recommendations; and improperly reduced the student's speech-language therapy. 

The parent additionally contends that the IHO erred in denying IEEs.  The parent alleges that the IHO incorrectly concluded that the 2020 initial evaluation conducted by Yeled was an IEE.  The parent also contends that the district's 2022 reevaluation was insufficient.  According to the parent, the district failed to conduct sufficient evaluations for all school years at issue as the district should have assessed the student for autism spectrum disorder and conducted assessments in assistive technology, behavior, executive functioning and/or regression, ADLs, auditory processing, and ABA.  The parent also contends that the IHO's final decision was insufficient, implies that the IHO was not qualified, and that the IHO violated her due process rights by "delegating a remedy to the IEP team."^[12]  The parent also contends that the IHO erred in denying her Section 504 claim.^{[13], [14]}

In an answer, the district denies the material allegations contained in the request for review and seeks to uphold the IHO's decision.  The district argues that the IHO was fair and impartial, that the IHO's decision was appropriate, that the IHO correctly denied the parent's IEE requests, and that the CSE had sufficient evaluative information.  With respect to the 2020-21 school year, the district states the July 2020 IEP addressed the student's needs and that there was no consensus on continuing the student's program from the prior year.  Procedurally, the district contends that the parent was informed of her due process rights as evidenced by the signed documents included in the hearing record.  With respect to the 2022-23 school year, the district contends that the IHO properly found that the student was offered a FAPE, that the student made progress without 1:1 instruction, and that the May 2022 IEP addressed the student's needs.  The district further argues that, even if the CSE did not recommend extended school year services, the student would have received services during summer 2022 through the CPSE, and the CSE would determine whether the student required summer services in the future at the following annual review.  According to the district, the May 2022 CSE developed appropriate annual goals for the student and did not engage in predetermination, despite the parent's disagreement with the recommendations.  The district also asserts that the parent's contention that the IHO erred in delegating a remedy to a CSE was not explained with specificity by the parent.  Lastly, the district contends that the parent's request for ABA services appears to be a request for dual compensation, due to the student receiving ABA services through insurance, and if any ABA services are awarded, it should be reduced by the amount the student received through health insurance. 

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 generally Forest 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]).^[15]

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

VI. Discussion

A. Preliminary Matters

1. Scope of Review

Initially, as neither party has appealed from the IHO's determination that the district failed to meet its burden to prove that it offered the student a FAPE for the 2021-22 school year, this finding is 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]).

2. Conduct of the Impartial Hearing

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

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

Overall, an independent review of the hearing record demonstrates that the parent had the opportunity to present evidence at the impartial hearing and that the impartial hearing was conducted in a manner consistent with the requirements of due process (see Educ. Law § 4404[2]; 34 CFR 300.514[b][2][i], [ii]; 8 NYCRR 200.5[j]).  IHOs have broad discretion in conducting hearings and ensuring the process runs smoothly.  Additionally, the parent's general allegation that "the IHO did not conduct the proceedings in accordance with the law" is wholly conclusory and devoid of any supporting factual or legal specificity, and there is no basis to find that the parent was denied due process by the IHO during the impartial hearing process.^[16]

B. 2020-21 School Year-CSE Process

1. Procedural Safeguards Notice and Prior Written Notice

The parent alleges that a procedural safeguards notice and prior written notice were not provided to the parent prior to the student's 2020 initial preschool evaluations. The parent also alleges that no prior written notice was provided to the parent after the July 2020 CPSE meeting.

Upon initial referral to the CPSE, a district must initiate an individual evaluation of a student by an approved evaluator (see Educ. Law § 4410[4][a]; 8 NYCRR 200.4[a][1][i], 200.16[b]; see also 20 U.S.C. § 1414[a][1][B]; 34 CFR 300.301[b]).  For preschool students, State regulations further specify that the district shall provide a copy of the procedural safeguards notice and a prior written notice of an initial evaluation in which "the notice shall, for parents of preschool students referred to the committee for the first time, request parental consent to the proposed evaluation and advise the parent of the right to consent or withhold consent to an initial evaluation of the student or to the initial provision of special education services to a student who has not been previously identified as having a disability" (8 NYCRR 200.16[h][1]-[3]).

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

As noted by the district, the parent signed a consent for initial evaluation form on May 13, 2020, which, among other things, indicated that the parent "received a copy of the New York State Education Department Procedural Safeguards Notice" (Parent Ex. L).  Thus, the hearing record does not support the parent's contention that no procedural safeguards notice was provided.  Even if it were established that no procedural safeguards notice was sent to the parent, the district social worker explained the evaluation process as part of the initial social evaluation (Dist. Ex. 3 at p. 1).  However, there is no indication in the hearing record that the district provided prior written notice to the parent before the initial preschool evaluation or after the July 2020 CPSE meeting.  While the lack of prior written notice constitutes a procedural violation, there is no showing, for the reasons explained more fully below, that it rose to the level of a denial of a FAPE for the 2020-21 school year as it did not impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or cause a deprivation of educational benefits (see 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).

2. July 2020 CPSE Composition

The parent alleges that the IHO should have found that the July 2020 CPSE was not properly composed because the CPSE "lacked the required members to develop" the student's 2020 IEP, including individuals "with specialty in [the student's] areas of disability."

The IDEA requires a CPSE to include the following members: the parents; one regular education teacher of the student (if the student was, or may be, participating in the regular education environment); one special education teacher of the student or, where appropriate, not less than one special education provider of the student; a district representative;^[17] an individual capable of interpreting instructional implications of evaluation results; at the discretion of the parent or district, other persons having knowledge or special expertise regarding the student, "including related services personnel as appropriate"; and if appropriate, the student (20 U.S.C. § 1414[d][1][B]; see 34 CFR 300.321[a]; 8 NYCRR 200.3[a][1]).

With regard to the argument that the July 2020 CPSE was procedurally deficient because it did not include an individual with specialized knowledge of the student’s disability—i.e., an "other person[] having knowledge or special expertise regarding the student" within the meaning of the IDEA—the hearing record does not support that claim.  The July 2020 CPSE IEP attendance page reflects that an individual who served as both a special education teacher and related services provider, the parent, a CPSE administrator who served as the district representative, and a representative from the agency who conducted the student's evaluations were in attendance (Tr. p. 668; Parent Ex. B at p. 2).  Although the parent contends that the July 2020 CPSE lacked an individual who specialized the student's areas of disability, suggesting reference to his autism spectrum disorder diagnosis, the individual who attended the meeting as the special education teacher/related service provider was the licensed behavior analyst (LBA) and board certified behavior analyst (BCBA) who had been providing ABA services to the student since 2019, and who attended at the parent's request (Tr. pp. 614-15; compare Parent Ex. B at p. 2, with Parent Ex. BB at p. 9).^[18]  Additionally, the parent could have invited individuals with knowledge or expertise about the student, or the district could have invited them at the parent's request, but the parent did not claim to have made such a request.  In addition, the CPSE administrator testified that she was a certified special education teacher, certified bilingual special education teacher, certified "school district leader," and that she had been working as a district administrator on CPSEs for 13 years (Dist. Ex 16 at p. 7).  Additionally, the district representative indicated that she had experience as a special education evaluator for several years, as well as experience being a "teacher mentor" for several years (id. at p. 8).  Similarly, it does not appear that the parent made a request to have discretionary CPSE related service providers such as an occupational therapist and speech-language therapist attend the CPSE meeting that was denied.  Accordingly, I find insufficient basis rooted in the evidence to conclude that the district violated the requirements for including the requisite members of the CSE.

3. Parent Participation

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

Here, there is no dispute that the parent participated at the July 2020 CPSE meeting (Parent Ex. B at p. 2).  The July 2020 CPSE IEP reflects the parent's comments regarding the student and his skills, as well as her concerns regarding the student's academic, developmental, and functional needs; social development; and physical development needs (id. at pp. 3-9).  While the parent may have disagreed with some of the July 2020 CPSE CSE's ultimate recommendations for the student, such disagreement does not constitute a lack of parental participation by the district.

4. Sufficiency and Consideration of Evaluative Information

On appeal, the parent argues that the IHO should have found that the district failed to determine if any additional assessments were required, and the district failed to conduct specific assessments in the student's areas of suspected disability, which included: an assistive technology assessment, a behavioral assessment, an executive functioning/regression assessment, an ADL assessment, an auditory assessment, and/or an ABA assessment.   

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]).  In the case of a preschool student, a multidisciplinary evaluation is conducted by an approved program selected by the parent (8 NYCRR 200.16[c][1]).  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).

            Evidence in the hearing record shows that the July 2020 CPSE relied on a multidisciplinary evaluation with assessments including the Wechsler Preschool and Primary Scale of Intelligence—Fourth Edition (WPPSI—IV); the Preschool Language Scale-Fifth Edition (PLS-5); an informal oral-motor assessment; the Goldman Fristoe Test of Articulation-3; clinical observations; the Peabody Developmental Motor Scales-Second Edition (PDMS-2); the Revised Brigance Diagnostic Inventory of Early Development; the Hawaii Early Learning Profile (HELP); the Sensory Profile 2; and the Vineland Adaptive Behavior Scales—Third Edition (Vineland-3) (Parent Ex. B at pp. 3-4, 7; see Parent Exs. C; D; E; F; G; H; Dist. Ex. 9).^[19] 

The July 2020 CPSE IEP and the psychological evaluation report both documented the student's global delays in the areas of cognition, receptive and expressive language, social/emotional and behavioral development, physical development, and adaptive functioning (see Parent Exs. B at pp. 3-9; C at pp. 2-5).  According to the IEP and the psychological evaluation report, administration of the WPPSI-IV to the student yielded a full scale IQ which fell within the extremely low range (Parent Exs. B at p. 3; C at pp. 2-3).  Consistent with the psychological evaluation report, the July 2020 IEP noted the student's performance on various diagnostic tools including the Brigance Diagnostic Inventory and the HELP assessment similarly showed scores in the very poor range in cognition and receptive and expressive language, and scores in the poor range in social/emotional development, fine and gross motor development, and adaptive behavior (compare Parent Ex. B at p. 3, with Parent Exs. C; D at p. 6). 

Cognitively, test results reflected that the student had difficulty understanding basic cognitive concepts and performing tasks, and inconsistently followed directions (Parent Exs. B at pp. 3, 4; C at p. 3; D at p. 4).  For example, the student did not appear to understand what was expected of him on a task to point to a previously shown target picture and appeared unable to copy a simple two-block tower (Parent Ex. C at p. 3).  While the student demonstrated understanding of object permanence and cause and effect, he did not demonstrate understanding of the use/function of objects (Parent Exs. B at p. 4; D at p. 4).  With respect to preacademic skills, the student did not point to several pictures when looking at a book or sort or identify colors consistently, but he was able to clap his hands, wave bye, and touch his head when asked to (Parent Exs. B at p. 4; D at p. 4). 

Regarding the student's communication skills, the July 2020 CPSE IEP and the June 2020 speech evaluation report indicated that his receptive language skills were significantly delayed, and that he had only recently begun to produce two-word utterances with prompts (Parent Exs. B at p. 5; H at p. 3).  With regard to social/emotional and behavioral development, the July 2020 IEP reflected the student often screamed and tantrummed due to frustration from limited vocabulary and word-finding difficulties (Parent Exs. B at p. 5; H at p. 1). 

In the area of physical development, the July 2020 IEP and the June 2020 psychological evaluation report indicated that the student "had difficulty positioning and holding a crayon," was "unable to replicate a straight line," and presented with "overall low muscle tone," poor balance, and difficulty running and climbing on low playground equipment (Parent Exs. B at p. 7; C at p. 4).  The June 2020 OT and PT evaluation reports and July 2020 IEP noted that the student presented with an immature grasp, poor bilateral coordination skills and difficulty motor planning including ascending and descending stairs (Parent Exs. B at p. 8; F at p. 3; G at p. 4).  The IEP noted, as did the May 2020 educational evaluation report and a June 2020 Sensory Profile summary report, that the student presented with sensory processing delays, was unable to self-regulate, and engaged in self-stimulatory behaviors such as spinning objects repetitively (Parent Exs. B at p. 6; D at p. 4; Dist. Ex. 9 at p. 6).  In terms of adaptive functioning, the IEP included the information captured by the mother's responses on the Vineland-3 rating scales, indicating that although the student ate in a neat manner, he had difficulty eating with utensils and was not yet toilet trained (Parent Exs. B at p. 7; C at p. 4; E at p. 2).

Taking into account the foregoing, the evidence in the hearing record reflects that the July 2020 CSE had sufficient information before it related to the student's present levels of performance, and his areas of need.  The July 2020 CPSE IEP reflected the student's needs as identified in the assessments conducted, which included evaluations of the student's cognitive, educational, communication, sensory processing, and motor skills (compare Parent Ex. B at pp. 3-9; with Parent Exs. C-D; F-H).  Additionally, while the parent contends that the district erred in not conducting a litany of other assessments, "[t]he IDEA does not compel a school district to perform every sort of test that would arguably be helpful before devising an IEP" (Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 373 F. Supp. 2d 292, 299 [S.D.N.Y. 2005]), and the district's failure to conduct these evaluations does not render the IEP legally inadequate, in light of the breadth of information available from the documents, as well as the available perspectives from those in attendance at the CSE meeting (see Phillips v. Banks, 2024 WL 1208954, at *2 [2d Cir. Mar. 21, 2024]). Thus, I do not find adequate support in the hearing record for the parent's contention that the student's initial preschool evaluation was insufficient.

            Next, the parent contends that the district "ignored the recommendations" from the student's early intervention providers and evaluators, which included recommendations for 1:1 ABA services, an increase in individual instruction, paraprofessional services, and an increase in speech-language therapy.  In support of her argument, the parent cites to the April 2019 psychological evaluation and letters from the student's EIP speech-language pathologist and BCBA (Req. for Rev. ¶ 15; see Parent Exs. I at p. 14; BB at pp. 8-9).^[20]  The parent also cites to her testimony that the student received approximately 10 hours per week of "special instruction" through the EIP, and 10 hours per week of ABA services through insurance prior to the 2020-21 school year (Parent Ex. WW at pp. 50-51).    

            Regarding the parent's claim regarding 1:1 ABA services, review of the psychological evaluation report shows that the psychologist did not recommend 1:1 ABA services, rather, among other recommendations, she opined that the student "would probably benefit from being placed in a center based program in order to assist with socialization and following the overall structure and routines of an early childhood setting" (Parent Ex. I at p. 14).  In her July 2020 letter, the BCBA indicated that the student was receiving ABA services, but at that time, "he d[id] not require discrete trial instruction, rather he need[ed] a less structured classroom that c[ould] provide an opportunity to learn from and interact with peers" (Parent Ex. BB at p. 9).  In her "clinical opinion," the BCBA indicated that the student "be allowed to participate in an integrated class with the aid of a SEIT so he c[ould] be afforded the opportunity to interact and learn from his peers" (id.).  Accordingly, while the student may have been receiving ABA services at the time of the July 2020 CPSE meeting, none of the evidence cited to by the parent reflects a recommendation for ABA instruction per se, and the CPSE did recommend that the student receive 10 hours per week of SEIT services (Parent Ex. B at p. 17).     

The July 2020 recommended that the student receive three 30-minute sessions per week of speech-language therapy (Parent Ex. B at p. 17).  Review of the psychological evaluation and EIP speech-language pathologist's letter reflect recommendations for an increase in speech-language therapy sessions from three 30-minute sessions per week to four 30-minute sessions per week (Parent Exs. I at p. 14; BB at p. 8).  However, according to the EIP speech-language pathologist, with three 30-minute sessions per week, the student had "demonstrated a great deal of progress over the past year," including that he greeted her by name, communicated his needs in one to three word phrases, demonstrated an increase in spontaneous language, concept development, vocabulary, play skills, and eye contact (Parent Ex. BB at p. 8).  Given the progress the student was making during the 2019-20 school year with three sessions per week of speech-language therapy, some of which had been conducted via teletherapy, the CPSE's recommendation for the same frequency of therapy sessions, which were to be conducted in-person at the student's preschool, was not inappropriate (Parent Exs. B at p. 17; I at p. 8).    

Further, in developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]).  A CSE must consider independent educational evaluations whether obtained at public or private expense, provided that such evaluations meet the district's criteria, 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 v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004] [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]).

In this case, the providers which the parent cited in support her contentions indicated that the student would have benefitted from classrooms that allowed him access to his peers in order to have social role models, and did not recommend intensive 1:1 instruction or paraprofessional services, and the CPSE had a basis for its speech-language therapy recommendation.  Accordingly, there is insufficient support for the parent's claims, and no basis to conclude that any procedural violations rose to the level of a denial of a FAPE for the 2020-21 school year. 

C. July 2020 CPSE IEP

In addition to the procedural claims discussed above, the parent further contends that the July 2020 CPSE IEP failed to address the student's communication delays, oral motor delays, and "functional delays" including in his feeding, dressing, and toileting skills. 

The July 2020 CPSE IEP reflected that the student's score on measures of adaptive functioning was in the "[p]oor range" and that while he identified facial body parts such as nose and mouth, he did not identify other "major body parts or clothing items" (Parent Ex. B at pp. 3, 4-5).  Parent report in the IEP indicated that the student understood the statement "let's get dressed, but he d[id] not differentiate between his shirt and pants" (id. at p. 5).  Additionally, the IEP indicated that the student did not attempt to dress or undress himself, he had difficulty manipulating large buttons or zippers, and he required assistance when washing and drying his hands and face (id. at p. 7).  The IEP reflected reports that the student was not toilet trained, was "unaware when he need[ed] to be changed and w[ould] not gesture to let his caregivers know" (id.).  Regarding feeding, the IEP indicated that the student "had difficulty eating with utensils but he [ate] in a neat manner," and that his "[o]ral motor/feeding skills [were] within normal limits" (id.).

Regarding the skills needed for dressing and eating, the July 2020 IEP indicated that the student demonstrated "very poor grasping and visual motor functioning," and he "display[ed] motor planning difficulties" and "difficulty following simple directives" due to difficulty understanding what was being asked of him (Parent Ex. B at p. 7).  The parent is correct that the student's IEP did not specify annual goals or management strategies that stated objectives to improve his dressing or feeding skills specifically; however, it did include recommendations for OT and SEIT services, to work on annual goals to improve his fine motor coordination and grasping skills, visual motor skills, motor planning and direction following abilities, and ability to use an object in a functional manner; prerequisite skills needed for those activities (see id. at pp. 10-13, 17).  Additionally, the student did not yet exhibit prerequisite skills for toileting, such as awareness of when he needed to be changed (id.).  Accordingly, while the IEP may not have specified goals or objectives in the precise wording preferred by the parent, review of the July 2020 IEP shows that it was adequately crafted to address the student's adaptive skill needs.

D. Implementation – July 2020 CPSE IEP

According the parent, the IHO erred in concluding that the student "received all of his 2020 IEP mandated services," and alleged that the district failed to implement them.  The parent testified that the district failed to provide to the student two 30-minute sessions per week of PT after January 20, 2021, three 30-minute sessions per week of OT after March 10, 2021, and stopped providing speech-language therapy services to the student between January 2021 through March 2021 (see Parent Ex. WW ¶ 31-32, 34-35, 37-38; see Parent Ex. KK).  The district answers that the IHO was correct to deny compensatory education for missed services, as the progress reports in the hearing record show the student continued to make progress, "thereby diminishing the need for compensatory services."

With regard to the implementation of a student's IEP, a denial of a FAPE occurs if there was more than a de minimis failure to implement all elements of the IEP, and instead, the school district failed to implement substantial or significant provisions of the IEP (Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]).

According to the IHO, the parent asserted that the student missed 21.5 hours of PT, 25 hours of OT, and 23 hours of speech-language therapy during the 2020-21 school year (IHO Decision at p. 33; see Parent Ex. KK).  According to the July 2020 10-month school year IEP, during the 2020-21 school year the student should have received approximately 36 hours of PT (two 30-minute sessions per week x 36 weeks), and 54 hours of both OT and speech-language therapy (three 30-minute sessions per week x 36 weeks) (Parent Ex. B at pp. 1, 17). 

The district argues that no compensatory education relief is necessary, but does not otherwise challenge the parent's assertion of missed services.   In view of the record and analysis above, I find a failure to implement the PT, OT and speech language services as described above—more than a de minimis departure—such that the deviation was material and significant within the applicable standard . Relief for this violation, including the form and scope of any remedy, will be further discussed below after addressing the other disputes of the parties.

E.  2022-23 School Year-CSE Process

1.  May 2022 CSE Composition

The parent asserts on appeal that the May 2022 CSE "failed to include adequate members" including an occupational therapist, a speech-language therapist, a behavioral specialist, and an expert in autism.

The IDEA requires a CSE to include the following members: the parents; one regular education teacher of the student (if the student was, or may be, participating in the regular education environment); one special education teacher of the student or, where appropriate, not less than one special education provider of the student; a district representative;^[21] an individual capable of interpreting instructional implications of evaluation results; at the discretion of the parent or district, other persons having knowledge or special expertise regarding the student, "including related services personnel as appropriate"; and if appropriate, the student (20 U.S.C. § 1414[d][1][B]; see 34 CFR 300.321[a]; 8 NYCRR 200.3[a][1]).  With respect to the May 2022 CSE, the attendance page reflects that the following persons were in attendance: the parent, a school psychologist who served as the district representative, an "IEP teacher" from the student's assigned school location, the student's classroom teacher, the student's SEIT, an occupational therapist, and the special education supervisor at Yeled (Parent Ex. Z at p. 30; see Dist. Ex. 11 at p. 1). 

On appeal, the parent's allegations regarding the May 2022 CSE composition focus solely on the lack of additional special education and related service providers or experts, rather than members required under State regulation.  As discussed above, those individuals were not required to attend the CSE, and the parent was free to invite additional members.  The parent does not claim on appeal that she requested these professionals attend the CSE meeting and the district denied her request.  Thus, the hearing record indicates that the May 2022 CSE was validly constituted.

Next,  the parent argues that the district "admitted predetermination in that the IEP team could not recommend 1:1 instruction or ABA services on the IEP or a smaller, individualized inclusion class."  With regard 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 S.M. & L.M. v. Eastchester Union Free Sch. Dist., 2026 WL 396110, at *10 [S.D.N.Y. Feb. 12, 2026]; D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-*11 [E.D.N.Y. Sept 2, 2011], aff'd, 506 Fed. App'x 80 [2d Cir. Dec. 26, 2012]; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [E.D.N.Y. 2009], aff'd, 366 Fed. App'x 239 [2d Cir. Feb. 18, 2010]).  Districts may "'prepare reports and come with pre[-]formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions'" (DiRocco, 2013 WL 25959, at *18 [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]).

The record does not show that the district admitted during the impartial hearing that it would not consider the parent's viewpoints with regard to individual services and ABA, although the parent's attorney tried to elicit testimony to that effect on those points.  When asked about a request for ABA or continuation of SEIT, the district witness explained that the team considered teacher input listing "ABA" and "SEIT," but determined for school-age that ABA was not the district's methodology (albeit the district could  use principles from ABA) and that SEIT is a preschool service; instead, the witness testified that the CSE recommended group SETSS with extensive related services based on its view of the student's needs and the restrictiveness of 1:1 instruction (Tr. pp. 860, 862-63, 874-76).   Overall, the parent provided input during the CSE meeting and expressed her disagreement with several viewpoints of the district personnel, but that does not mean that the district refused to consider her input to the extent that the services on the IEP were impermissibly predetermined (see, e.g., Parent Ex. Z at pp. 4-7, 29).  Instead I find that the CSE did not engage in a procedural violation that lead to a denial of a FAPE on this basis.

2.  Sufficiency of Evaluative Information

The parent argues on appeal that the IHO's determination that the district met its burden to establish that it conducted appropriate evaluations of the student be reversed.  Specifically, the parent asserts that the May 2022 CSE "materially reduced" the student's recommended special education services for the 2022-23 school year "without new evaluations."

Review of the May 2022 IEP shows that the CSE considered narrative reports and progress reports from the student's preschool classroom teacher, speech-language therapist, SEIT, parent, occupational therapist, and physical therapist at the time of the meeting (see Parent Ex. Z at pp. 1-7).

The May 2022 prior written notice (Parent Ex. AA at pp. 1-2) reflected the May 2022 CSE considered the following documents when developing the student's IEP for the 2022-23 school year: CPSE evaluations, reports, and IEPs (see Parent Exs. B-H); a 2021 "SEIT [r]eport" (Parent Ex. V); a 2021 OT progress report (Parent Ex. X); a 2022 social history update (Dist. Ex. 12); a 2022 classroom teacher report/interview (Dist. Ex. 13); a 2022 PT progress report (Parent Ex. Y); and a 2022 speech-language progress report (Parent Ex. W).

In terms of the student's cognitive skills, the May 2022 IEP reflected information from a 2021 SEIT report and verbal information relayed by the SEIT during the CSE meeting (compare Parent Ex. Z at pp. 1, 3, with Parent Ex. V).  Consistent with information reported in the SEIT progress report, the IEP noted the student had learned to express when a task felt too long for him; for example, the student would ask, "[i]s work time over yet?" when the task was getting too long (Parent Ex. Z at p. 3; see Parent Ex. V at p. 1).  The student worked on tasks to improve attention and memory skills, and the IEP reflected reports that the student sorted and labeled six basic categories of objects, learned "some functions for basic objects," and followed a daily picture activity schedule independently (Parent Ex. Z at p. 3; see Parent Ex. V at p. 1).  According to the IEP, the student followed classroom routines and had started to do a few motions to familiar songs together with his social group (Parent Ex. Z at p. 5; see Parent Ex. V at p. 1).  The IEP indicated that the student responded with "goodbye" and waved when his classmates said goodbye to him (Parent Ex. Z at p. 5; see Parent Ex. V at p. 1).  Further, the IEP noted that the student transitioned from preferred to nonpreferred tasks without tantrumming (Parent Ex. Z at p. 5; see Parent Ex. V at p. 1).  When given a picture list of his peers and accompanied by his therapist, the IEP reflected report that the student would tap his peers to get their attention and ask if they wanted a snack (Parent Ex. Z at p. 5; see Parent Ex. V at p. 1).  Additionally, the IEP indicated that the student participated in very simple pretend play with his therapist and parent, and would offer the adult a choice of food items during "restaurant" play (Parent Ex. Z at p. 5; see Parent Ex. V at p. 1). 

Regarding the student's academic skills, the May 2022 IEP reflected information consistent with the preschool teacher interview report (compare Parent Ex. Z at p. 1, with Dist. Ex. 13 at p. 1).  The student had learned to identify all capital letters; was able to label most capital letters; had learned to describe objects using function, category, parts and some attributes; and had some understanding of sequence of events (Parent Ex. Z at p. 1; see Dist. Ex. 13 at p. 1).  With regard to readiness skills, the student asked for items he needed when there was an adult in close proximity, he recognized colors, shapes, and numbers and labeled colors, numbers, and some shapes (Parent Ex. Z at pp. 1-2; see Dist. Ex. 13 at p. 2).  Notably, the May 2022 IEP reflected the preschool teacher's interview, that the student "appear[ed] less anxious and overall seem[ed] more comfortable in the classroom" (Parent Ex. Z at p. 1; Dist. Ex. 13 at p. 1).  Similarly, the IEP reflected that the student "follow[ed] the classroom routine with minimal cues" and had "begun singing and doing motions during circle time" and would "say his name when it [wa]s his turn during the circle time routine" (Parent Ex. Z at p. 1; Dist. Ex. 13 at p. 1). 

The May 2022 IEP reflected information from the preschool teacher's interview regarding the student's speech-language skills (compare Parent Ex. Z, with Dist. Ex. 13).  Specifically, the  teacher reported that the student asked questions to get information; was able to answer simple "who, what and where" questions after being told a one-sentence story with a picture cue; and answered some logical "why" questions immediately following an in vivo exposure (Parent Ex. Z at p. 2; see Dist. Ex. 13 at pp. 2-3).  The teacher noted the student's articulation had improved, but still needed more work so that he could be understood better (Parent Ex. Z at p. 2; see Dist. Ex. 13 at pp. 3).  The IEP reflected the teacher's report that the student understood directional and positional words and used them in sentences but mixed up pronouns including he, she, his, her, I, and they (Parent Ex. Z at p. 2; see Dist. Ex. 13 at pp. 3).  Additionally, the IEP recounted the substantive content of the student's January 2022 speech-language progress report, which detailed his receptive and expressive language, auditory listening, articulation, pragmatic, and reading readiness/decoding deficits, and the progress he had made (compare Parent Ex. Z at pp. 2-3, with Parent Ex. W).

In terms of social/emotional and behavioral development, the May 2022 IEP reflected the  preschool teacher interview report, which noted that the student used to refuse to say names, but at the time of the report, the student would call peers by name within his social group to get their attention, and that he was making more attempts to engage with his peers (compare Parent Ex. Z at p. 4, with Dist. Ex. 13 at p. 1).  According to the IEP, the teacher report reflected that the student "recently started using some bad language when he [wa]s upset or d[id not] get his way," would grab toys or bother his peers, and was anxious when in a large group (Parent Ex. Z at pp. 4-5; see Dist. Ex. 13 at pp. 2-3).  At the time of the May 2022 CSE meeting, reports reflected in the IEP indicated that the student was "doing better socially," and attempted to interact more with peers, but that he still needed some prompting (Parent Ex. Z at p. 5).  The IEP also reflected information from the April 2022 social history update regarding the parent's perspective of the student's social skills (compare Parent Ex. Z at p. 5, with Dist. Ex. 12).     

With respect to the student's physical development, the May 2022 IEP reflected information from the March 2022 preschool teacher's interview, the April 2022 social history update, the December 2021 OT progress report, and the January 2022 PT report  (compare Parent Ex. Z at pp. 5-6, with Parent Exs. X; Y, and Dist. Exs. 12; 13).  The IEP reflected the student's medical history as reported in the social history by the parent, including diagnoses and adaptive behavior skills and needs (Parent Ex. Z at pp. 5-6; see Dist. Ex. 12 at p. 1).  According to the IEP, the teacher interview report noted that the student laced cards, strung beads, traced and copied lines, put blocks together, needed cues to hold a pencil with an appropriate grip, and that he was able to cut a paper in half (Parent Ex. Z at p. 6; see Dist. Ex. 13 at p. 4).  Regarding gross motor skills, the May 2022 IEP noted that the teacher interview report stated that the student's gait was adequate, he was able to navigate stairs, but he had difficulty with playing ball during games (Parent Ex. Z at p. 6; see Dist. Ex. 13 at p. 4). 

The IEP also reflected the December 2021 OT progress report, which indicated that the student demonstrated progress with tolerating tactile sensations, completing block building activities, stringing beads, lacing cards, and manipulating objects with his dominant hand while stabilizing with his non-dominant hand (compare Parent Ex. Z at p. 6, with Parent Ex. X at p. 1).  Review of the IEP shows that it also incorporated specific information about the student's attention span, ADL, fine motor, gross motor, and classroom-based (i.e. coloring and scissor) skills (Parent Ex. Z at p. 6; see Parent Ex. X).  With regard to the student's adaptive functioning, the May 2022 IEP reflected the preschool teacher interview report, that the student was able to feed himself and use the bathroom independently, and that he needed help dressing/undressing in some garments (Parent Ex. Z at p. 2; see Dist. Ex. 13 at p. 3).  Additionally, review of the IEP shows that it included content from the January 2022 PT progress report (compare Parent Ex. Z at pp. 6-7, with Parent Ex. Y).  The IEP indicated that the student was able to walk and run on level surfaces without difficulty, and demonstrated improved lower extremity strength and balance (Parent Ex. Z at pp. 6-7; Parent Ex. Y at p. 1).  Delays were noted in the student's ability to catch and throw balls due to decreased eye-hand coordination, jump in specific directions due to poor motor planning (Parent Ex. Z at p. 7; see Parent Ex. Y at p. 1).    

In light of the foregoing, the evidence in the hearing record reflects that the May 2022 CSE had sufficient evaluative information to identify the student's present levels of performance and areas of need.  While the parent alleged a lack of specific evaluations "in areas of suspected disability," the updated reports and interview information above, in conjunction with the CPSE evaluation reports, was an adequate basis for conducting an annual review and revising the student's IEP. As to the parent's contention that reevaluation of the student was required before making changes to the student's IEP, that argument is not born out by the evidence and was not required (L.B. v. New York City Dep't of Educ., 2016 WL 5404654, at *10 [S.D.N.Y. Sept. 27, 2016] [further testing by the CSE was not required prior to IEP revisions]; Cruz v. Banks, 2024 WL 1309419, at *8 [S.D.N.Y. Mar. 27, 2024] ["[n]othing in the IDEA requires that new formal evaluations be conducted for every student before any single change in an IEP"]; L.S. v. Union Free Sch. Dist. of the Tarrytowns, 2024 WL 1859970, at *16 [S.D.N.Y. Apr. 29, 2024]).

F. May 2022 CSE IEP

The parent contends that the May 2022 IEP did not offer the student a FAPE because the annual goals were insufficient; and because the IEP failed to address the student's behavioral needs; terminated the student's 1:1 instruction and the recommended "class sizes and instructional ratios were too large and insufficiently intensive"; wrongfully terminated the student's extended school year services; failed to address the student's delays through adequate speech-language therapy and OT goals and services; and failed to address the student's ADL skills, such as dressing, hygiene, and play skills.^[22]

1. Annual Goals

The parent contends on appeal that the annual goals in the May 2022 IEP were inappropriate and insufficient because they were too difficult, vague, left too much to the discretion of providers and teacher, failed to include measurable and individualized benchmarks, and failed to address significant areas of delay.  

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

The May 2022 CSE recommended approximately 14 annual goals to target the student's needs in the areas of English language arts (ELA), math, communication, fine motor, motor planning, sensory processing, gross motor, and core muscle strength (Parent Ex. Z at pp. 9-22).  Review of the annual goals shows that they included the requisite criteria to measure if the goal had been achieved (i.e. 80 percent accuracy), methods of how progress would be measured (i.e. teacher/provider checklists, informal assessments, observations), and the schedule when progress would be measured (i.e. one time per quarter) (id.).  In the area of ELA, the May 2022 IEP included annual goals and corresponding short-term objectives targeting the student's ability to develop beginning reading skills and to improve writing skills to a kindergarten level (id. at pp. 20-21).  In math, the IEP reflected a goal to improve the student's math skills (id. at p. 22).  To the extent that the parent argues the annual goals were too difficult and vague, review of the present levels of performance and short-term objectives shows that the skills targeted for the student to work on during the 2022-23 school year were appropriately ambitious (see Parent Ex. Z at pp. 1-3, 20-22).  For example, the IEP reflected teacher report that the student recognized capital letters and could label most of them, and his ELA short-term objectives were for him to match and distinguish letters, develop phonemic awareness by identifying letters and making sound/symbol correspondence, recognize letters and associate with pictures of objects beginning with the target phoneme, and recognizing sight words using labeled objects in the classroom (id. at pp. 1, 2, 20).  In writing, the IEP indicated that the student "demonstrate[d] moderate levels of performance" with respect to adequate pressure when using a crayon, and using a mature pencil grip (id. at p. 6).  The ELA writing annual goal was to improve the student's ability to create a story with a beginning, middle, and end using words and/or pictures (id. at p. 21).  For math, the IEP reflected that the student recognized shapes and could label some of them, recognized and could label numbers, and knew 1:1 correspondence (id. at pp. 1, 2).  The math annual goal was for the student to consistently identify numbers, rote count to 20, use 1:1 correspondence, and demonstrate understanding of concepts "more" or "less" (id. at p. 22).  Accordingly, review of the present levels of performance and annual goals and short-term objectives shows that they generally addressed improving the skills the student was beginning to exhibit or demonstrated inconsistently.  The parent's claims regarding the sufficiency of the student's speech-language and OT/motor skills annual goals and services will be addressed below.    

Overall, the May 2022 IEP annual goals were aligned with and addressed the student's areas of need.  As for the parent's allegation that too much discretion was left to teachers or providers, "annual goals are designed to allow the CSE to measure a student's progress in particular areas, not to delineate how the school would assist the student in making such progress. In other words, while . . .  the IEP was indeed required to specify services to assist in supporting the development of [the student's] social skills, . . .  the annual goals are meant to state objectives, not the methodology for helping the student achieve those objectives (S.S. v. Katonah Lewisboro Union Free Sch. Dist., 2026 WL 357638, at *16 [S.D.N.Y. Feb. 9, 2026] [internal citations and cross-references omitted]). Thus under IDEA, teachers and related service providers have always been provided considerable discretion when implementing a student's annual goals from an IEP. Although the parent may have preferred the goals be drafted with particular specificities or more rigidity, the evidence in the hearing record supports the conclusion that the student's annual goals were sufficiently individualized and measurable for the student to make progress during the 2022-23 school year.^[23]  Therefore, I do not find a sufficient basis in the hearing record that supports the parent's claims that the annual goals in the IEP denied the student a FAPE.^[24]  

2. Special Factors – Interfering Behaviors

The parent argues on appeal that the undersigned should find that the May 2022 IEP was deficient because it failed to address the student's "severe interfering behaviors by failing to recommend" a behavioral intervention plan (BIP) or any positive behavioral interventions. 

Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP.  Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., 361 Fed. App'x 156, 160 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172).  State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider developing a BIP for a student that is based upon a functional behavioral assessment (FBA) (8 NYCRR 200.4[d][3][i], 200.22[a]-[b]).  Additionally, a district is required to conduct an FBA in an initial evaluation for students who engage in behaviors that impede their learning or that of other students (8 NYCRR 200.4[b][1][v]).

State regulations define an FBA as "the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment" and include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it

(8 NYCRR 200.1[r]).  According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors (8 NYCRR 200.22[a][2]).  An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement" (8 NYCRR 200.22[a][3]).

Although State regulations call for the procedure of using an FBA when developing a BIP, the Second Circuit has explained that, when required, "[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all" (R.E., 694 F.3d at 190).  The Court also noted that "[t]he failure to conduct an FBA will not always rise to the level of a denial of a FAPE," but that in such instances particular care must be taken to determine whether the IEP addresses the student's problem behaviors (id.).

With regard to a BIP, the special factor procedures set forth in State regulations note that the CSE shall consider the development of a BIP for a student with a disability when:

the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; (ii) the student's behavior places the student or others at risk of harm or injury; (iii) the CSE or CPSE is considering more restrictive programs or placements as a result of the student’s behavior; and/or (iv) as required pursuant to [8 NYCRR 201.3]

(8 NYCRR 200.22[b][1]).

If the CSE determines that a BIP is necessary for a student "[t]he [BIP] shall identify: (i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors . . . ; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals" (8 NYCRR 200.22[b][4]).

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

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]).

Review of the May 2022 IEP indicated that the CSE was aware of the student's behaviors, noting that the student became frustrated when he had difficulty expressing himself, he had "recently started using some bad language when he [wa]s upset or d[id not] get his way," and he would get upset and became "silly/seek attention in negative ways, when adults sp[oke] to someone else" (Parent Ex. Z at pp. 4, 5).  The IEP reflected report that the student would "grab toys or bother his peers" in attempts to engage them, as he reportedly "very much want[ed] to interact and [wa]s making many more attempts than he did in the past" (id. at p. 5). 

However, the May 2022 IEP does not reflect that the student exhibited "severe interfering behaviors" which impeded his learning,  rather, teacher report indicated that the student functioned "fine" in a classroom of 15 students, had "progressed tremendously," sat "nicely" during circle time for up to 15 minutes, and had learned to express when a task was becoming too long for him (id. at pp. 1, 3).  While the IEP described that the student needed frequent breaks from instruction, he also "did well" with token and picture choice boards, followed classroom routines, transitioned from preferred to nonpreferred tasks without tantrumming, and followed a daily picture activity schedule independently (id. at pp. 2, 3, 5).  Additionally, although the student needed prompting, he was "doing better socially" and with adult support, the student was able to "tap [a selected peer] to get their attention, and ask if they want[ed] a snack" (id. at pp. 4, 5).  The IEP reflected reports that the student was "easily motivated and ha[d] a large tangible reinforcer repertoire," and that he "especially enjoy[ed] social reinforcement" (id. at p. 4).  Strategies to address the student's management needs included prompting, refocusing, verbal cueing, praise and encouragement, positive feedback, and opportunities to succeed and be acknowledged for his success (id. at p. 7).    

While the student demonstrated some inappropriate behaviors, he was making progress in the classroom; the May 2022 CSE identified supports such as prompting, choice boards, and reinforcers that successfully addressed those behaviors, and services such as speech-language therapy with annual goals to improve the student's expressive communication and social pragmatic skills (id. at pp. 2, 3, 5, 17, 19, 23-24).  As explained above, a BIP is not the first step when considering how to address student behavior (see 8 NYCRR 200.22 [b][1]), and in this case review of the May 2022 IEP does not support a finding that the student required the development of a BIP or inclusion of positive behavioral interventions beyond those already identified in the IEP in order to offer him appropriate programming.

3. SETSS and Related Services

The parent asserts that the undersigned should find that the May 2022 IEP erroneously terminated the student's 1:1 instruction without regard to his individual needs, recommended class sizes and instructional ratios that were too large and insufficiently intensive, and only offered management strategies on a discretionary basis during SETSS sessions.  Additionally, the parent argues that the undersigned should determine that the IEP failed to appropriately address the student's oral motor, articulation, and auditory processing delays through adequate speech-language therapy annual goals and services, and his motor and sensory delays through adequate OT annual goals and services.

As described above, the May 2022 IEP reflected reports that the student was making progress in his preschool classroom, with eight hours of SEIT services per week, speech-language therapy, OT, and PT (Parent Ex. Z at pp. 1-7; see Parent Ex. B at p. 1).  The May 2022 CSE recommended that the student receive five periods per week of direct, group SETSS in addition to related services (Parent Ex. Z at p. 23).    

The school psychologist who attended the May 2022 CSE meeting testified that the recommendation for SEIT services was from "a preschool IEP" and noted, "[t]he IEP that I helped create [wa]s a school-age IEP.  So we [were] expecting more independence" from the student (Tr. pp. 844, 862-63; Parent Ex. Z at p. 30).  According to the school psychologist, the student had made "significant progress with the CPSE services in place and there was no reason to believe he would not continue to benefit from a similar model," indicating that SETSS is a service "similar" to SEIT services "but provided for school age children" (Dist. Ex. 15 ¶¶ 1, 17).  She testified that the recommendation for SETSS was appropriate for the student because "he was entering kindergarten and his reported instructional/functional levels were at a pre-k level which was age appropriate" (id. ¶ 9).  The school psychologist testified that 1:1 instruction was "extremely restrictive," and the CSE believed that small group SETSS instruction "would work for the [student] and a lot of related services" (Tr. p. 863).  She stated that 1:1 instruction "was not necessary" for the student, and that based on reports regarding the skills the student had, the CSE "felt a group was appropriate" (Tr. pp. 874-76).  Additionally, the school psychologist testified that the student's group would be determined by the SETSS provider, who would identify other "similar functioning peers" (Dist. Ex. 15 ¶ 17). 

Next, with regard to the parent's assertion that the class size and instructional ratios were too large and the management strategies would be delivered on a discretionary basis only during SETSS sessions, the SETSS were to be delivered in a group of no more than eight students, and the student was to receive seven individual related service sessions per week, therefore affording the student with opportunities for small group and individual instruction (Tr. p. 863; Parent Ex. Z at p. 23).  In addition to the previously mentioned strategies to address the student's management needs, additional supports provided in the May 2022 IEP included frequent breaks during instruction, token board and picture choice boards, reinforcement of skills taught, scaffolding, differentiated instruction, preferential seating, check for understanding, information broken down into manageable parts, repetition, review, rephrasing, multisensory approach and use of multisensory materials, graphic organizers, redirection, and motor breaks (Parent Ex. Z at p. 7).  Further, nothing in the IEP suggests that the management strategies provided for would only be implemented during SETSS sessions (id.).   

Regarding the parent's assertion that the May 2022 IEP failed to address the student's oral motor, articulation, and auditory processing delays through adequate annual goals and services, the IEP indicated that the student's articulation skills had improved but were still "deficient," and that regarding auditory processing, the student was "proficient with following spoken directions," followed and comprehended stories read aloud, discriminated between sounds and words, and was "adept" at rhyming words, but exhibited difficulty with comprehending "compound" sentences and use of "inclusion/exclusion words," and auditory discrimination skills such as identifying beginning letter sounds and sounding out words when reading (Parent Ex. Z at pp. 2-3).^[25]  The IEP included an annual goal with short-term objectives to improve the student's auditory discrimination of speech sounds in different positions in words, and ability to discriminate between error and target sounds, produce target sounds in sentences and conversational speech, and reduce the use of phonological processes (id. at p. 15).  Additionally, the IEP provided an annual goal to improve the student's understanding and comprehension of a variety of basic concepts and ability to follow directions (id. at p. 16).  The CSE recommended that the student receive two 30-minute sessions per week of individual speech-language therapy and one 30-minute session per week of speech-language therapy in a group (id. at pp. 23-24).    

With regard to the parent's claim that the May 2022 IEP failed to address the student's motor and sensory delays, the IEP detailed the student's difficulties with fine motor, gross motor, and sensory processing skills as described above (Parent Ex. Z at pp. 6-7).  The CSE developed annual goals with corresponding short-term objectives specifically to improve those skills, such as improving fine motor coordination, strength, and ability to manipulate classroom materials; motor planning skills; sensory processing skills including inhibiting self-stimulatory behavior and working with various textures; and gross motor coordination and planning skills (id. at pp. 9-13).  To address those needs, the CSE recommended that the student receive three 30-minute sessions per week of individual OT, and two 30-minute sessions per week of individual PT (id. at p. 23).  Accordingly, the evidence in the hearing record does not support the parent's claim that the May 2022 IEP failed to address the student's articulation, auditory processing, motor, and sensory processing needs through adequate speech-language therapy and OT annual goals and services.      

As set forth above, the evidence does not substantiate the parent's allegations regarding deficiencies in the May 2022 CSE's recommended programming, including continuing 1:1 instruction in accordance with student's preschool design, the adequacy of speech-language and OT services, and thus does not, in my view, provide a sufficient basis to disturb the IHO's determination that the district offered the student a FAPE for the 2022–23 school year.

G. Compensatory Education

The parent asserts that the IHO used the wrong legal standard and improperly placed the burden on the parent, denying compensatory relief based on evidentiary requirements that do not apply. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).  The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M., 758 F.3d at 451; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).  Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

As noted above, the district did not refute that the student missed 21.5 hours of PT, 25 hours of OT, and 23 hours of speech-language therapy during the 2020-21 school year or argue that this was not a material or substantial deviation from the student's IEP.  The hearing record did not include PT, OT, or speech-language therapy progress reports from the end of the 2020-21 school year to describe the student's functioning and how the missed related services sessions affected the student, if at all (Parent Exs. A-N; U-KK; MM; OO-SS; UU-WW; YY-ZZ; Dist. Exs. 1-17).  However, progress reports from the middle of the following 2021-22 school year show that the student was making progress with respect to PT, OT, and speech-language therapy (see Parent Exs. W; X; Y).  However, those same progress reports also indicated that the student demonstrated regression "when there is an interruption in services" (see Parent Exs. W; X; Y).  Neither party's arguments on this point were particularly convincing or well-crafted.  In light of this evidence that weighs partially in favor of providing compensatory education relief, I will direct the district to provide compensatory education to the student equal to approximately one-half of the missed hours as an equitable remedy, namely PT in the amount 11 hours; OT in the amount of 12.5 hours; and speech-language therapy in the amount of 11.5 hours.^[26]

H. Independent Educational Evaluations (IEEs)

Finally, the parent alleges that the IHO erred in not ordering IEEs to inform the hearing record and denying the parent's motion for reconsideration on his interim ruling.  The parent further contends that the IHO should have ordered IEEs as final relief.  In an answer, the district generally asserts that the IHO's decisions should be upheld.

The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]).  Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]).^[27]

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

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

Here, the IHO factually erred in her interim decision dated January 31, 2024, when she concluded that the 2020 initial evaluations of the student conducted by Yeled constituted an IEE (IHO Ex. II[A] at pp. 10-11), at least not one of the types of IEEs identified in 8 NYCRR 200.5[g], namely those requested by the parent at public expense, provided by the parent at private expense, or requested by a hearing officer at public expense.  Instead, the initial evaluation was a multidisciplinary preschool individual evaluation of the variety where the parent, by State regulation is permitted to select the approved evaluator and it is publicly funded by the local municipality at the behest of the CSE (8 NYCRR 200.16[c]-[d]).  Notwithstanding the recognition of this distinction, an interim order for an IEE was not needed to inform the hearing record in this case and the IHO did not err in declining to award one.  As discussed above, the hearing record contained sufficient evaluative information to enable the IHO to assess the substantive adequacy of the July 2020 and May 2022 IEPs.  Moreover, the parent was not entitled to any relief due to an inadequately designed IEP, as the hearing record supports the IHO's determination that the IEPs offered the student a FAPE.  Therefore, under the circumstances of this case, I do not find that the IHO's failure to order IEEs, either on an interim basis or as relief, was an abuse of discretion (see, e.g., Application of a Student with a Disability, Appeal No. 25-066 [rejecting the parents' claim that the IHO should have ordered IEEs as equitable relief where "the hearing record support[ed] the IHO's determination that the design of the student's IEPs did not deny the student a FAPE for the" school years at issue]; cf. Application of the Dep't of Educ., Appeal No. 12-033 [finding that the IHO properly exercised his authority to order independent evaluations where the hearing record lacked sufficient evaluative information]). 

In her arguments to the IHO, parent did not only seek IEE from the IHO directly under 8 NYCRR 200.5[g][2], but also intermixed the arguments with other points under the publicly funded IEE provisions in  8 NYCRR 200.5[g][1] due to her disagreement with evaluations of the student (IHO Ex. II[B1]).  The parent also explicitly argued that  "[t]he State Review Officer ("SRO") has just conclusively clarified that a parent may request IEEs in a due process complaint ("DPC") and need not file a separate letter prior to doing so. See SRO No. 19-094" (id.).  Indeed, the record shows just that—that  the parent generally alleged in her September 2022 due process complaint notice that the district did not adequately evaluate the student in every area of suspected disability, and failed to conduct a number of specific evaluations and follow the procedural IDEA requirements for "all of the evaluations and reevaluations conducted" (id.).  In the due process complaint notice, without specifying any particular evaluation or identifying an area of disagreement, the parent instead generally alleged that she "disagrees with the evaluations and reevaluations conducted" (id. at p. 7).  However, as relief, the parent requested the following IEEs of the student: a neuropsychological evaluation; an "[a]utism/ABA" assessment; an OT evaluation; a speech-language evaluation; a PT evaluation; assistive technology evaluation; an FBA; and a "positive behavior plan for home and school" (Parent Ex. A at p. 12).  Subsequently, in her February 2023 motion papers, the parent requested the following IEEs: a neuropsychological evaluation; a speech-language evaluation; an OT evaluation; a PT evaluation; a vision processing evaluation; an FBA and BIP; an ABA assessment; and an assistive technology evaluation (IHO Ex. II[B1] at p. 6)

As the parent points out, in past decisions SROs, including the undersigned, have permitted a parent to request a district-funded IEE in a due process complaint notice in the first instance (see, e.g. Application of the Dep't of Educ., Appeal No. 21-135); however, what the parent does not point out is that since that time, SROs have also expressed reservations that this is not the process contemplated by the IDEA and its implementing regulations (Application of the Dep't of Educ., Appeal No. 23-034;  Application of a Student with a Disability, Appeal No. 22-150) and my observation is that the approach has caused more problems than it resolves (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]).  The statute clearly indicates that a district is required to either grant the IEE at public expense or initiate due process to defend its own evaluation of the student, but a district need only do so "without unnecessary delay" (34 CFR 502[b][2]).  The process envisions that a district has an opportunity to engage with the parent on the request for an IEE at public expense outside of due process litigation, and if a delay should occur as a result, one of the fact-specific inquiries to be addressed is whether the IEE at public expense should be granted because the district's delay in filing for due process was unnecessary under the circumstances (see Cruz v. Alta Loma Sch. Dist., 849 F. App'x 678, 679-80 [9th Cir. 2021][discussing the reasons for the delay and degree to which there was an impasse and finding that the 84-day delay was not an unnecessary delay under the fact specific circumstances]; Pajaro Valley Unified Sch. Dist. v. J.S., 2006 WL 3734289, at *2 [N.D. Cal. Dec. 15, 2006] [finding that an unexplained 82-day delay for commencing due process was unnecessary]; Alex W. v. Poudre Sch. Dist. R-1, 2022 WL 2763464, at *14 [D. Colo. July 15, 2022] [holding that simply refusing a parent's request for an IEE at public expense is not among the district's permissible options]; MP v. Parkland School District, 2021 WL 3771814, at *18 [E.D. Pa. Aug. 25, 2021] [finding that the school district failed to file a due process complaint altogether and granting IEE at public expense];^[28] Jefferson Cnty. Bd. of Educ. v. Lolita S., 581 F. App'x 760, 765-66 [11th Cir. 2014]; Evans v. Dist. No. 17 of Douglas Cnty., Neb., 841 F.2d 824, 830 [8th Cir. 1988]).  As the Second Circuit observed, at no point does a parent need to file a due process complaint notice to obtain an IEE at public expense (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 168-69 [2d Cir. 2020]).^[29] 

Continued study of the judicial and administrative guidance on the topic led me to change my previous approach of allowing the parent to initially disagree with a district evaluation and request an IEE in a due process complaint notice (without attempting to raise such disagreement with the district first).  Since then, judicial precedent has also recognized the incompatibility with the statutory process when parental disagreement specified in the first instance in the due process complaint notice.  In holding that the parent did not follow the required process for seeking a publicly funded IEE by expressing disagreement in the first instance in the due process complaint notice, the court explained that

[t]his ruling aligns with the process required by statute. As the SRO Decision explained, after a parent disagrees with an evaluation and requests an IEE at public expense, the district must “without unnecessary delay” either grant the IEE at public expense or initiate a due process proceeding itself to defend its own evaluation of the student. SRO Decision at 15 (citing 34 C.F.R. § 300.502(b)(2)); see also D.S., 975 F.3d at 157 (citing same). The requirement to file a due process complaint on the part of the district would not make sense if the statute anticipated parents making their disagreements with triennial evaluations known in the first instance in their own due process complaint. [The SRO] held that Plaintiffs approach here did not afford the DOE an opportunity to “engage with the parent on the request for an IEE at public expense outside of due process litigation” as contemplated by the statute. SRO Decision at 15. The Court sees no reason to disagree with the SRO's statutory analysis.

(R. F. v. New York City Dep't of Educ., 2025 WL 2695690, at *12 [S.D.N.Y. Sept. 22, 2025]).  In this case there is no evidence that the parent expressed disagreement with the evaluation of the district or requested an IEE from the district at public expense other than in the due process complaint notice seeking an impartial hearing and an IEE as relief.

Accordingly, although for different reasoning, I find that the IHO did not err in her decision to deny the parent's request for IEEs at public expense as the request was raised for the first time in the due process complaint notice.  While the parent's request for an independent neuropsychological evaluation, a speech-language evaluation, an OT evaluation, a PT evaluation, a vision processing evaluation, an FBA and BIP, an ABA assessment, and an assistive technology evaluation is denied, the parent may request that the district conduct those assessments.  Upon receipt of such request, the district must consider whether it would be appropriate to conduct the evaluations to assess the student's special education needs and, after due consideration, provide the parent with prior written notice describing, if applicable, its reasons for concluding that additional evaluations of the student are unnecessary (8 NYCRR 200.5[a]; see 34 CFR 300.503, 300.305[d]).  If the parent is dissatisfied with the district's response or evaluations, the parent may then submit a request to the CSE that it fund an IEE in the manner contemplated by the IDEA, as discussed above.

VII. Conclusion

In summary, the district has prevailed with respect to the adequacy of the July 2020 and May 2022 IEPs, but the parent prevailed in part regarding the district's failure during the 2020-21 school year to deliver related services as described above and  the appropriate relief is to direct the district to provide compensatory education due to missed PT, OT, and speech-language therapy.  The remaining arguments and requested remedies, including independent assessments or an IEE, are not warranted for the reasons stated above.

I have considered the parties' remaining contentions and find that they need not be addressed in light of my determinations herein.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO decision, dated February 28, 2025, is modified by reversing that portion which dismissed the parent's claim pertaining to the implementation of related services during the 2020-21 school year as described in the body of this decision; and

IT IS FURTHER ORDERED that, unless the parties shall otherwise agree, the district shall provide the student with 11 hours of PT, 12.5 hours of OT, and 11.5 hours of speech-language therapy as compensatory education relief within one year of the date of this decision.

Dated: May 29, 2026

Justyn P. Bates

STATE REVIEW OFFICER

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Footnotes

[1] The hearing record contains multiple duplicative exhibits.  For purposes of this decision, only the parent exhibits will be cited where both a parent and district exhibit are identical in content.  The IHO is reminded that it is her responsibility to exclude evidence that she determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).

[2] The April 2019 psychological evaluation noted that the student displayed repetitive behaviors, did not maintain good eye contact, did not show interest in peers, and did not consistently display joint attention (Parent Ex. I at p. 14).

[3] State law defines SEIT services (or, as referenced in State regulation, "Special Education Itinerant Services" [SEIS]) as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "[SEIS] for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available at http://www.p12.nysed.gov/ specialed/publications/2015-memos/documents/SpecialEducationItinerantServicesforPreschoolChildrenwith Disabilities.pdf; "Approved Preschool Special Education Programs Providing [SEIT] Services," Office of Special Educ. [June 2011], available at http://www.p12.nysed.gov/specialed/publications/SEITjointmemo.pdf).  In addition, SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii] [emphasis added]; see Educ. Law § 4410[1][k]).

[4] Although both parties agreed the student was eligible for special education, the May 2022 IEP indicated that the parent did not agree with the student's eligibility classification of a student with a speech or language impairment, but, rather, the parent believed an autism classification was more appropriate (Parent Ex. Z at p. 4). 

[5] 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.

[6] The final two transcripts in the hearing record contain a pagination error, insofar as the first page of the transcript dated February 7, 2025 begins on page 1469, rather than continuing after the final page number of the prior transcript dated February 5, 2025, page 1495 (compare Feb. 5, 2025 Tr. p. 1495 with Feb. 7, 2025 Tr. p. 1469).  Therefore, the final two transcripts will include the date of the hearing when they are cited.

[7] The interim pendency decision contains a typographical error, referring to a July 2020 individualized education services program (IESP) instead of the July 2020 IEP as the basis of the student's pendency program, and also incorrectly refers to the due process complaint notice as being dated September 9, 2022 and containing allegations only about the 2022-23 school year (IHO Ex. I at pp. 1-2, 5; see Parent Exs. A; B).  The hearing record reflects that the parties agreed that the July 2020 IEP was the basis of the student's pendency (Tr. p. 12).   

[8] It appears the IHO incorrectly referenced the year when making this statement; the heading of this section indicates the IHO was referring to the "2022-2023 SY" and cited documents subsequent to 2020 (IHO Decision at pp. 22-23). 

[9] The request for review included proposed additional evidence for consideration.  It is not necessary to accept the parent's first proposed exhibit into evidence, as the September 8, 2022 due process complaint notice is already part of the hearing record (see Parent Ex. A).  The parent's second proposed exhibit is a motion for reconsideration and request for educational records made by the parent to the IHO.  Since these documents should have been included in the hearing record according to State regulation (see 8 NYCRR 200.5[j][5][vi] [requiring, among other things, that the hearing record include "all briefs, arguments or written requests for an order filed by the parties for consideration by the impartial hearing officer"]), the parent's proposed exhibit shall be included in the hearing record as "SRO Ex. B".

[10] On appeal, the parent alleges that the IHO erred by finding that the student did not have autism and it is unclear whether the parent is also asserting that the district denied the student a FAPE because it failed to diagnose the student with autism or because  the district failed to consider autism as the student's disability classification or some combination thereof.  Regardless, neither point carries the day in terms of the parent's case.  The district was not obligated to conduct a separate assessment or otherwise refer the student to either rule out, or to diagnose, whether he met the criteria for a diagnosis of autism (see MB v. City Sch. Dist. of New Rochelle, 2018 WL 1609266, at *12 -* 13 [S.D.N.Y. Mar. 29, 2018] [finding no procedural violation arising from a lack of a specific "autism evaluation" where the CSE had sufficient information about the student's individual needs and noting, in any event, that "there has been no showing that an autism-specific evaluation (or formal autism diagnosis) would have changed [the student's] recommended suite of special education services in any respect"])." In New York, preschool students are not classified in IEPs by specific disability categories.  Instead, the CPSE classifies eligible children simply as a "preschool student with a disability" (see Educ. Law § 4410[1][i]; 8 NYCRR 200.1[mm], 200.16).  To the extent the parent is challenging the student's disability classification by the CSE once the student became school aged, courts have given considerably less weight to identifying the underlying theory or root causes of a student's educational deficits and have instead focused on the process of identifying the academic skill deficits to be addressed though special education and through the formulation of the student's IEP (Navarro Carrillo v. New York City Dep't of Educ., 2023 WL 3162127, at *2 [2d Cir. May 1, 2023] [agreeing that the classification issue was a "red herring" and that the disability categories served only the purpose of ascertaining the student's eligibility for special education]; B.D. v. Eldred Cent. Sch. Dist., 2023 WL 3025308, at *10 [S.D.N.Y. Apr. 20, 2023] [characterizing the eligibility category as "a distinction without a difference"]; Polanco v. Porter, 2023 WL 2242764, at *6 [S.D.N.Y. Feb. 27, 2023] [finding that "well-reasoned decisions in other circuits have clarified that a student's disability classification is generally immaterial in determining whether a FAPE was provided if the IEP otherwise sufficiently met the needs of the disabled student"]; see Fort Osage R-1 Sch. Dist. v. Sims, 641 F.3d 996, 1004 [8th Cir. 2011] [noting the IDEA's strong preference for identifying the student's specific needs and addressing those needs and that a student's "particular disability diagnosis" in an IEP "will, in many cases, be immaterial" because the IEP is tailored to the student's individual needs]; Draper v. Atlanta Indep. Sch. Sys., 480 F. Supp. 2d 1331, 1342 [N.D. Ga. 2007]).  "Indeed, '[t]he IDEA concerns itself not with labels, but with whether a student is receiving a free and appropriate education'" (Heather S. v. State of Wisconsin, 125 F.3d 1045, 1055 [7th Cir.1997]).

[11] Contrary to the parent's contentions, the hearing record indicates that the district notified the parent of the student's assigned school for the 2022-23 school year (Dist. Ex. 11).

[12] To the extent the parent is challenging the IHO ordering the CSE to reconvene and determine if the student required further assessments, it is noted that an IHO generally has broad authority to fashion appropriate equitable relief (see, e.g., Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 [S.D.N.Y. 2011]; see Forest Grove v. T.A., 129 S.Ct. 2484 [2009]).  In addition, while the parent generally contends that the IHO "did not demonstrate an understanding of blackletter special education law and clinical issues," the parent does not explain how the IHO was deficient.  The parent's disagreement with the conclusions reached by the IHO does not provide a basis for arguing the IHO lacked proper qualifications or competence.

[13] An SRO lacks jurisdiction to consider a parent's challenge to an IHO's finding or failure or refusal to rule on section 504, as an SRO's jurisdiction is limited by State law to matters arising under the IDEA and Article 89 of the Education Law (Educ. Law § 4404[2] [providing that SROs review IHO determinations "relating to the determination of the nature of a child's handicapping condition, selection of an appropriate special education program or service and the failure to provide such program"]).  Courts have also recognized that the Education Law makes no provision for State-level administrative review of IHO decisions with regard to section 504 (see A.M. v. New York City Dep't of Educ., 840 F. Supp. 2d 660, 672 & n.17 [E.D.N.Y. 2012] [noting that "[u]nder New York State education law, the SRO's jurisdiction is limited to matters arising under the IDEA or its state counterpart"], aff'd, 513 Fed. App'x 95 [2d Cir. 2013]; see also F.C. v. New York City Dep't of Educ., 2016 WL 8716232, at *11 [S.D.N.Y. Aug. 5, 2016]).  Therefore, an SRO does not have jurisdiction to review any portion of the parent's claims regarding section 504, and accordingly such claims will not be further addressed.

[14]  It is well-settled that a memorandum of law is not a substitute for a pleading (see 8 NYCRR 279.4, 279.6; see also Davis, 2021 WL 964820, at *11; Application of a Student with a Disability, Appeal No. 19-021; Application of the Dep't of Educ., Appeal No. 12-131).  Thus, any issues not raised in the request for review have been deemed abandoned and any arguments included solely within the memorandum of law have not been properly raised and will not be considered herein. 

[15] 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).

[16] To the extent that the parent argues on appeal that the IHO erred in finding that the student had not received an autism diagnosis at the time of the July 2020 CPSE meeting, the IHO stated in the decision that "[w]hether there was an ASD diagnosis or not, the student did receive the recommended services" pursuant to the July 2020 CPSE IEP (IHO Decision at p. 24).  Therefore, the student's autism diagnosis or lack thereof at that time was not a basis for the IHO's denial of the parent's requested relief.  Furthermore, mere disagreements with the conclusions reached by the IHO are not a sufficient basis to find that the parent was denied the right to due process. (Application of a Student with a Disability, Appeal No. 23-090; see Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 [2d Cir. 2009] ["Generally, claims of judicial bias must be based on extrajudicial matters, and adverse rulings, without more, will rarely suffice to provide a reasonable basis for questioning a judge's impartiality"]; A. S. & A.B. v. New York City Department of Education, 2026 WL 1079380, at *31–32 [S.D.N.Y. Apr. 21, 2026]; Talley v. Aviles-Ramos, 2026 WL 592078, at *5-8 [S.D.N.Y. Mar. 3, 2026]).

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

[18] I note that the parent testified that she is a BCBA and "work[ed] in a school setting with children primarily" on the autism spectrum (Tr. pp. 275-77). 

[19] The CPSE acknowledged that the student's evaluation was conducted virtually during the first few months of COVID-19 pandemic and state of emergency (Parent Exs. B at p. 4; C at p. 2), which the parent pointed out numerous times. Because the parent identifies no concrete way in which the evaluation's procedures, measures, or outcomes were undermined by its remote administration in a way that led to a denial of a FAPE, the mere use of a remote modality is insufficient, by itself, to conclude that the evaluation was deficient.  Furthermore, the updated information obtained since that time was not remote.

[20] None of the evidence cited to by the parent reflects a recommendation that the student receive paraprofessional services (see Parent Exs. I at p. 14; BB at pp. 8-9; WW at pp. 50-51).  The BCBA letter indicated that at that time of the July 2020 CPSE meeting the student was attending a "daycare class with the aid of a shadow," but did not otherwise indicate that the student required paraprofessional support (see Parent Ex. BB at p. 9).      

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

[22] Regarding the parent's claim that the May 2022 CSE "terminated" the student's extended school year services, during summer 2022, the student was not yet eligible for services from the CSE, yet was still eligible for services under the auspices of the CPSE, and there is no claim that the parent was prevented from availing herself of those services during that time (see Req. for Rev. ¶ 22).    

[23] Courts have generally been reluctant to find a denial of a FAPE on the basis of an IEP failing to sufficiently specify how a student's progress toward his or her annual goals will be measured when the goals address the student's areas of need (E.E. v. New York City Dep't of Educ., 2018 WL 4636984, at *9 [S.D.N.Y. Sept. 26, 2018]; L.B. v. Katonah-Lewisboro Union Free Sch. Dist., 2016 WL 4926203, at *9 n.11 [S.D.N.Y. Sept. 14, 2016]; D.A.B. v, New York City Dep't of Educ., 973 F. Supp. 2d 344, 359-61 [S.D.N.Y. 2013]; A.D., 2013 WL 1155570, at *10-*11; J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *13 [S.D.N.Y. Feb. 20, 2013]; P.K. v. New York City Dep't of Educ. (Region 4), 819 F. Supp. 2d 90, 109 [S.D.N.Y. 2011], aff'd, 526 Fed. App'x 135 [2d Cir. May 21, 2013]).

[24] The substance of certain goals is also addressed in the programming discussion below.

[25] Review of the May 2022 IEP shows that the student fed himself independently, and does not indicate that the student exhibited oral motor deficits, nor did the parent report any difficulty with the student's oral motor skills during the social history update, or the speech-language therapist in the student's January 2022 speech-language progress report (see Parent Exs. W; Z; Dist. Ex. 12). 

[26] Equitable considerations are not irrelevant when considering compensatory education relief, but some types of facts may weigh differently in a tuition reimbursement scenario, with one example being the 10-day notice of unilateral placement provisions that are explicit, and others that are implicit in statute. Suffice it to say that in this case the IHO's discussion of equitable considerations was inconsistent and I find no reason in the record evidence to reduce or deny relief upon a basis of inequitable conduct of the parent.

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

[28] The Parkland case also discussed caselaw with different factual circumstances in which the district's failure to file for due process had been excused such as incomplete district evaluations or agreements between the district and parent that the district would conduct further evaluations.

[29] The Second Circuit, in Trumbull, speculated that a "hypothetical scenario in which a parent might need to file a due process complaint for a hearing to seek an IEE at public expense is if the school unnecessarily withheld a requested IEE or failed to file its own due process complaint to defend its challenged evaluation as appropriate" (Trumbull, 975 F.3d at 169).