STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-211
Application of a STUDENT WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Mayerson & Associates, attorneys for petitioners, by Gary S. Mayerson, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Abigail Hoglund-Shen, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioners (the parents) appeal from those parts of a decision of an impartial hearing officer (IHO) which denied in part their requested relief related to the unilateral placement of their son (the student) consisting of enrollment at Fusion Academy (Fusion) and home-based services were inappropriate for the 2024-25 school year. The district cross-appeals from those parts of the IHO's decision which found the parents' unilateral placement was appropriate and that equitable considerations favored the parents. The appeal must be dismissed. The cross-appeal must be sustained in part.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail.
Briefly, the hearing record is sparse with regard to the student's educational history prior to August 2022. An August 2022 neuropsychological evaluation report indicated that the student had "a history of [a]utism [s]pectrum [d]isorder (ASD), severe speech delays, and difficulties with attention and impulsivity" (Parent Ex. D at p. 1). At the time of the August 2022 evaluation, the student was 13 years old and attended a public middle school on a part time basis—between two hours and two and one-half hours per day—where he received integrated co-teaching (ICT) services in math and "Advisory" as well as 1:1 special education itinerant teacher (SEIT) support to modify his instruction (id. at pp. 1, 12).[1] In addition to school-based SEIT services the student also received home-based SEIT services for a combined total of 25 hours per week of school and home-based SEIT services (id.). According to the evaluation report, the student also received five 45-minute sessions per week of occupational therapy (OT) and five 45-minute sessions per week of speech-language therapy (id.). Lastly, the student's program included four hours of weekly supervision (id.). The neuropsychological evaluation report noted that the student's SEIT provider was trained in the Rapid Prompting Method (RPM) and that the student had been working with this method since 2016 (id. at p. 1).[2] In addition to ASD, the evaluator who conducted the 2022 neuropsychological evaluation determined that the student also met the criteria for diagnoses of attention deficit hyperactivity disorder (ADHD); combined presentation "(Severe)," unspecified anxiety disorder and obsessive-compulsive disorder (OCD) (id. at pp. 12-13).
On November 17, 2023, the district completed a physical therapy (PT) evaluation of the student at the request of the parent (Dist. Ex. 4; see Parent Ex. BB at p. 4).[3] The evaluator reported that the student presented with motor planning deficits as well as postural and gravitational insecurities and recommended the student continue to receive PT services (id. at pp. 5-7).
In an email dated December 4, 2023, the parents requested a PT evaluation, recounted the events of an August 2023 CSE meeting, and advised the district "that in the ongoing absence of an appropriate and timely program and placement for [the student, he] w[ould] continue to receive home instruction with supplemental classes and educational opportunities" for the 12-month, 2023-24 school year (Parent Ex. BB at pp. 1-4). In December 2023, the student began attending Fusion Academy (Parent Ex. P ¶ 11).
A CSE convened on January 22, 2024, and developed an IEP for the student with a projected implementation date of January 22, 2024 (Dist. Ex. 1 at p. 1).[4] Finding the student remained eligible for special education as a student with autism, the January 2024 CSE recommended that the student attend a State-approved nonpublic residential school and receive 12-month services consisting of a 6:1+1 special class, along with the related services of five 45-minute sessions per week of individual OT, two 45-minute sessions per week of individual PT, four 45-minute sessions per week of individual speech-language therapy, and one 45-minute session per week of speech-language therapy in a group (id. at pp. 27-28, 34).[5] The CSE also recommended that the parents receive parent counseling and training at the school's discretion (id., at pp. 27, 34).
In a 10-day notice letter dated June 14, 2024, the parents asserted that the district had not held a CSE meeting for the student since August 16, 2023, had reconvened on January 22, 2024 "to add PT recommendations to [the student]'s IEP," and that they had not received an updated IEP after that meeting or an assigned school site for the student for the 2024-25 school year (Parent Ex. C at p. 1). The parents noted that the August 2023 CSE had recommended a residential placement for the student and that there were no residential placements that were appropriate for or that would accept the student (id.). They indicated that they were "open-minded to discussing and considering all appropriate programs and placements" but advised the district that in the absence of an appropriate and timely placement the student would continue to attend Fusion as a component of his educational program (id.). In addition, the parents indicated they would be seeking reimbursement and/or funding of their unilaterally chosen educational program for the 2024-25 school year, which consisted of 30 hours per week of 1:1 teaching from a certified special education teacher, 20 hours per week of trained instructor support and/or 1:1 teaching, up to five hours per week of program support and oversight from a certified special education teacher, five 45-minute sessions per week of speech-language therapy, five 45-minute sessions per week of OT, up to two sessions per week of PT in an unspecified duration, transportation costs, all costs and expenses for "team training and/or expert consultation," up to four hours per month of individualized parent counseling and training, tuition and costs for "online or partial-day school/programming/instruction," and tuition and costs at Fusion (id. at pp. 1-2).
On October 4, 2024, the student's mother electronically signed an enrollment contract with Fusion (Parent Ex. E at pp. 1-11). The student was enrolled for one semester of Geometry, which began on October 18, 2024, and consisted of 25 sessions of "pay-as-you-go" tutoring and mentoring for the student (id. at pp. 1-3).[6] The student's mother also agreed to have the student participate in the "M[astery] L[earning] M[odel] for an additional cost per session as needed (id. at p. 4).[7] On December 6, 2024, the student's mother electronically signed an enrollment agreement with Fusion for one semester of Modern World History beginning on December 11, 2024, and consisting of 25 sessions (id. at pp. 12-14).
A. Due Process Complaint Notice
In an amended due process complaint notice dated October 15, 2024, consisting of 98 enumerated paragraphs as well as numerous subparagraphs, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. B at pp. 1, 3-13).[8] The parents invoked the student's right to pendency based on a June 17, 2024 unappealed IHO decision (id. at p. 2). The parents further asserted that the district did not provide a copy of the student's IEP and had not provided a school location letter for the 2024-25 school year (id. at p. 3). The parents also contended that the district's recommendations for the 2023-24 school year had been either rejected, inappropriate, or unresponsive, and that the district had failed to recommend a placement for the 2024-25 school year (id.). The parents also argued that the district's proposed program and placement did not meet the student's needs, did not represent the student's least restrictive environment (LRE) and that the CSE's deferral to the Central Based Support Team (CBST) indicated a lack of appropriate public school options (id. at pp. 3-4). The parents also alleged that the student's IEP was likely to cause regression and hinder independence (id. at p. 4).
As relief, the parents sought reimbursement and/or funding for 30 hours per week of 1:1 teaching from a certified special education teacher, 15 hours per week of trained instructor support, up to 5 hours per week of program support and oversight from a certified special education teacher, five 45-minute sessions per week of speech-language therapy, five 45-minute sessions per week of OT, up to two sessions per week of PT in an unspecified duration, transportation costs, all costs and expenses for team training and/or expert consultation, up to four hours per month of individualized parent counseling and training, tuition and costs for online or partial-day school/programming/instruction, five hours per week of 1:1 teaching from instructors with particular expertise or experience, and tuition and costs at Fusion (Parent Ex. B at pp. 13-14).
B. Impartial Hearing Officer Decision
An IHO from the Office of Administrative Trials and Hearings (OATH) was appointed on July 2, 2024 to preside over this matter (IHO Decision at p. 3).[9] On October 28, 2024, the IHO issued an interim order on pendency finding that the student was entitled to 12-month services, which included tuition at Fusion, 25-30 hours per week of 1:1 teaching from a certified special education teacher, 15 hours per week of trained instructor support, five 45-minute sessions per week of speech-language therapy, five 45-minute sessions per week of OT, two 60-minute sessions per week of PT, team training and/or expert consultation on an as needed basis, up to four hours per month of parent counseling and training, online school/programming/instruction to include science instruction two times per week, as well as IXL, Fishtank, and Cognishine, and a metrocard for transportation (Interim IHO Decision at p. 1).
Following a second prehearing conference on November 25, 2024, the parties reconvened before the IHO for an impartial hearing on January 9, 2025 and January 24, 2025 (Tr. pp. 1-128). The IHO noted during the second prehearing conference held on November 25, 2024, that the amended due process complaint notice did not specifically challenge any aspect of the January 2024 IEP, rather the parents alleged that the district failed to offer a placement for the student for the 2024-25 school year (Tr. p. 5). During the January 9, 2025 impartial hearing date, the district conceded that it did not offer the student a placement that could implement the January 2024 IEP for the 12-month, 2024-25 school year (Tr. p. 27).
In a decision dated March 5, 2025, the IHO found that based on its concession that it failed to offer a school placement for the 2024-25 school year, the district failed to offer the student a FAPE for the 2024-25 school year (IHO Decision at p. 23). Turning to the second prong of a Burlington/Carter analysis, the IHO found that "based on the totality of the evidence," the parents met their burden to demonstrate the appropriateness of their unilateral placement, however the IHO then stated that she "did not find every portion of the student's private program to be appropriate" (id. at p. 23). The IHO also found that there was insufficient evidence in the hearing record to establish the parents' "financial obligation to warrant some of the requested relief" and that the "speculative future portion of the requested relief," consisting of unknown providers, and training and consultation that had yet to be provided and "for which no financial obligation ha[d] occurred" were "not suitable for relief as neither the appropriateness nor the [p]arents' financial obligation c[ould] be determined on the record" (id.).
The IHO then listed the components of the parents' unilateral placement that she determined to be appropriate: 25 hours per week of 1:1 special education teacher support services (SETSS) with an RPM trained instructor; two hours per week of 1:1 online science instruction; six hours per week of 1:1 in-person English language arts (ELA) instruction with an RPM trained instructor; one hour per week of home-based individual PT with a licensed provider; one 30-minute session every two weeks of 1:1 online art instruction with an RPM trained instructor; and online curricula consisting of "IXL," and "Match Fishtank," upon proof of payment showing that they were purchased during the 2024-25 school year (IHO Decision at p. 23).[10] The IHO noted that this portion of the student's unilateral placement "in the aggregate" provided more than 34 hours per week of 1:1 instruction, which exceeded the requirements for a full-time program and was more than double the minimum time requirements for home and hospital instruction under "the regulations" (id.). The IHO determined that the hearing record established these services were provided by appropriately qualified providers, that the instruction provided was individualized to meet the student's needs, and that the student made "significant" progress (id. at pp. 23-24).
The IHO determined that there was insufficient evidence to support the appropriateness of the following portion of the student's unilateral placement: $300 training in September; any additional parent counseling and training or consultation services apart from the art classes, which had not been provided during the 2024-25 school year, and for which there was no financial obligation; the student's program at Fusion because it did not offer specially designed instruction and therefore could not be appropriate and further that the parents had not established a financial obligation for future classes; any services beyond the 42-week, 12-month school year mandate; and private transportation (IHO Decision at p. 24).[11]
The IHO then addressed equitable considerations and determined that no factors warranted a reduction in the amount of funding requested by the parents, and that they had cooperated with the IEP process (IHO Decision at p. 25). However, the IHO also determined that the parents had no financial obligation to pay for the future service portion of the student's unilaterally obtained program, noting such services were speculative (id. at p. 26).
The IHO went further stated that efforts needed to be made to find a more appropriate program for the student, which was a nonpublic residential school or day program (IHO Decision at p. 25). The IHO also opined that the student would benefit from attempts to place him in a program that would expose him to more typical peers and foster more independence (id.).
Notwithstanding the above findings, the IHO ordered the district to reimburse the parents, upon provision of invoices and proofs of payment, for services provided to the student between July 1, 2024, and the date of her decision, including aspects of the parents' unilateral placement that the IHO found to be inappropriate.[12] Specifically, the IHO ordered the district to reimburse the parents for
Up to 25 hours per week of 1:1 instruction with the SEIT at a rate of $120;
Up to two hours per week of 1:1 online science instruction with [the] Science Teacher at a rate of $100 per hour;
Up to six hours per week of in-person 1:1 ELA instruction with [the] ELA Teacher at a rate of $66 per hour;
Up to one hour per week of 1:1 PT in the home with [the] PT Provider at a rate of $165 per hour;
Up to 30-minutes every two weeks of 1:1 online art instruction with [the] Art Teacher at a rate of $70 per 30-minute session;
Up to $159 for the purchase of the online curricula IXL, if the proof of payment shows that it was purchased for the current school year;
Up to $95 for the purchase of the online curricula Match Fishtank, if the proof of payment shows that it was purchased for the current school year;
Up to $300 for the purchase of a training attended by [the p]arent in September 2024; and
$10,508 for the student's enrollment in Geometry and Modern World History at [Fusion]
(IHO Decision at p. 27).
The IHO also ordered the CSE to reconvene and modify the student's IEP to include 12-month (42-week) home-based instruction consisting of 25 hours per week of 1:1 SETSS with an RPM trained instructor, two hours per week of 1:1 online science instruction, six hours per week of 1:1 in-person ELA instruction with an RPM trained instructor, one hour per week of individual PT with a licensed provider, 30 minutes every two weeks of 1:1 online art instruction with an RPM trained instructor, and online curricula of IXL and Match Fishtank (IHO Decision at p. 27). The IHO also ordered the district to immediately investigate the existence of any available nonpublic school placement that included, at minimum, small classes, qualified teachers trained in RPM or similar methodology and/or a 1:1 RPM-trained communication partner for the student, grade-level content, behavioral supports, and the provision of all necessary related services for the 12-month school year (id.).[13]
IV. Appeal for State-Level Review
The parents appeal and allege that the IHO erred by failing to find that the parents' unilateral placement in its entirety was appropriate and erred in awarding funding for a portion of the parents' unilateral placement. The parents argue that the classes at Fusion, parent counseling and training, private transportation and 52-week services were appropriate to meet the student's needs and the IHO erred by determining they did not have a financial obligation to warrant some of their requested relief. The parents also argue the IHO held them to a higher burden of proof to demonstrate the appropriateness of the student's unilateral placement. The parents allege that the student required OT and speech-language therapy, but they were unable to find providers who were able to effectively work with the student; thus, they request reimbursement for such services only to the extent they are able to find appropriate providers for the remainder of the 2024-25 school year.
In an answer and cross-appeal, the district denied all the parents' allegations. As its cross-appeal, the district alleges the IHO erred in failing to determine that the parents' unilateral placement was not appropriate, but argues in the alternative that the IHO's determination that individual components of the student's program were inappropriate should be upheld. The district also alleges that the IHO erred in determining that equitable considerations favored the parents as there was no evidence of the parents' financial obligation to many of the service/educational providers. The district further cross-appeals from the IHO's order that the CSE reconvene to amend the student's IEP to include specific program recommendations, arguing that it was improper for the IHO to award prospective relief in the form of IEP amendments. The district also cross-appeals from the IHO's order directing the district to locate a residential placement with certain attributes, arguing that the parents did not request such an award in their amended due process complaint notice. As relief, the district requests a dismissal of the parents' request for review and for its cross-appeal to be sustained.
In an answer to the district's cross-appeal, the parents reassert the claims and arguments set forth in the request for review and further argue that the IHO correctly ordered the district to reconvene the CSE to amend the student's IEP to include home-based and online instruction, and correctly ordered the district to consider a placement capable of implementing RPM.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[14]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
A. Scope of Review
Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). The Second Circuit has held that courts assessing the propriety of a unilateral placement must consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
As noted above, in somewhat contradictory findings, the IHO determined that the parents had met their burden of demonstrating the appropriateness of their unilateral placement, while also finding that certain components of the unilateral placement were not appropriate (IHO Decision at p. 23). The IHO also found that there was insufficient evidence in the hearing record to establish the parents' "financial obligation to warrant some of the requested relief" and that the "speculative future portion of the requested relief," consisting of unknown providers, and training and consultation that had yet to be provided and "for which no financial obligation ha[d] occurred" were "not suitable for relief as neither the appropriateness nor the [p]arents' financial obligation c[ould] be determined on the record" (id.). The IHO then listed the specific components of the parents' unilateral placement which she found to be appropriate, however in conclusion, she noted that those components amounted to more than 34 hours per week of 1:1 instruction, which she found to exceed the requirements of a full-time program (id.).
The IHO also determined that there was insufficient evidence to support the appropriateness of (1) a September training at a cost of $300 (Parent Ex. U ¶ 79), (2) any additional parent counseling and training or consultation services other than the student's art classes—which had not been provided during the 2024-25 school year, and for which there was no financial obligation—and (3) private transportation costs (IHO Decision at p. 24). With regard to Fusion, the IHO determined that it did not offer specially designed instruction and there was no evidence that the student's curriculum was modified to meet his needs or evidence of progress (id. at pp. 24-25). Next, the IHO found that it was undisputed that the student required 12-month services, however, she found that a 42-week school year was sufficient (id. at p. 25). The IHO further determined that in requesting 52-week services, the parents sought to maximize the student's potential (id.).
Thus, it appears that the IHO tended toward concluding that Fusion was not an appropriate unilateral placement for the student. Notwithstanding the above findings, the IHO nevertheless awarded reimbursement for the two classes the student attended at Fusion, along with reimbursement for the September training in the amount of $300 (see Parent Ex. U ¶ 79). The IHO denied funding and/or reimbursement for additional parent counseling and training or consultation services, and private transportation. In her discussion of the appropriateness of the parents' unilateral placement, the IHO found the home-based services to be appropriate but in excess of the requirements of a FAPE, and that the parents' request for 52-week services were for the purpose of maximization.
The legal standard for determining the appropriateness of a unilateral placement pursuant to a Burlington/Carter analysis is whether the unilateral placement provided instruction specially designed to meet the unique needs of the student. Additionally, the program provided by the parents' unilateral placement must be reasonably calculated to enable the student to receive educational benefit. Here, the IHO articulated the correct legal standards in her decision; however, upon application of those standards her analysis of the appropriateness of the parents' unilateral placement conflate the appropriateness discussion with equitable considerations and improperly focused on whether or not the student required the home-based services to receive an educational benefit, rather than considering whether the parents' unilateral placement—which consisted of both enrollment at Fusion along with the home-based services—constituted instruction specially designed to address the student's needs when viewed in light of the totality of the circumstances. The IHO even recognized that a binary inquiry was required, but then immediately proceeded to divvy up the parents' unilateral services, finding some of them appropriate, and other aspects very much inappropriate and at times excessive.
For example, the IHO found that Fusion failed to offer specially designed instruction (IHO Decision at p. 24). Then the IHO's analysis indicates that she viewed the parents' home-based services as exceeding the requirements of a FAPE and that their request for 52-week services was for the purpose of maximizing the student's potential (id. at pp. 23-25). While the IHO rightly addressed the persuasiveness of some of the evidence presented by the parents, the questions of excessiveness of services and maximization are equitable considerations, and the Second Circuit Court of Appeals has held it is error for an IHO to apply the Burlington/Carter test by weighing equitable considerations in the IHO's analysis of the appropriateness of the unilateral placement (A.P. v. New York City Dep't of Educ., 2024 WL 763386, at *2 [2d Cir. Feb. 26, 2024] [explaining that the first two prongs of the test generally constitute a binary inquiry that determines whether or not relief is warranted and holding that the IHO should have determined only whether the unilateral placement was appropriate or not rather than holding that the parent was entitled to recover 3/8ths of the tuition costs because three hours of instruction were provided in an eight hours day]).
While the IHO's analysis was flawed, neither party has appealed from the IHO's determinations that the district failed to meet its burden to prove that it offered the student a FAPE for the 12-month, 2024-25 school year. Accordingly, that finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
Typically, the next inquiries would revolve around the appropriateness of the parents' unilateral placement which consisted of Fusion and home-based services and equitable considerations, however, at this point in the proceeding those issues have been rendered moot, as discussed below.
B. Mootness
A dispute between parties must at all stages be "real and live," and not "academic," or it risks becoming moot (Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; see Toth v. City of New York Dep't of Educ., 720 Fed. App'x 48, 51 [2d Cir. Jan. 2, 2018]; F.O. v. New York City Dep't of Educ., 899 F. Supp. 2d 251, 254 [S.D.N.Y. 2012]; Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *12 [E.D.N.Y. Oct. 30, 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30, 2008]; see also Coleman v. Daines, 19 N.Y.3d 1087, 1090 [2012]; Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., V.M. v. N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 119-21 [N.D.N.Y. 2013]; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 280-81 [E.D.N.Y. 2010]; Patskin, 583 F. Supp. 2d at 428-29; J.N., 2008 WL 4501940, at *3-*4; but see A.A. v. Walled Lake Consol. Schs., 2017 WL 2591906, at *6-*9 [E.D. Mich. June 15, 2017] [considering the question of the "potential mootness of a claim for declaratory relief"]). Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007).
Here, the parents sought funding for the student's unilateral placement, which consisted of funding for the student's tuition at Fusion and for the cost of the student's home-based services for the 12-month, 2024-25 school year (Parent Ex. B at pp. 13-14). Specifically, the parents requested
(a) 30 hours of 1:1 teaching per week from a special education certified teacher;
(b) 15 hours of trained instructor support per week;
(c) up to 5 hours of program support and oversight from a special education certified teacher;
(d) 5x45-minute sessions of speech per week;
(e) 5x45-minute sessions of OT per week;
(f) up to two sessions of PT per week;
(g) transportation costs;
(h) all costs and expenses for team training and/or expert consultation;
(i) up to 4 hours per month of individualized parent training/counseling;
(j) tuition and costs for online or partial-day school/programming/instruction
(k) 5 hours of 1:1 teaching per week from instructors with particular expertise or experience;
(1) tuition and costs at Fusion Academy
(Parent Ex. B at pp. 13-14).
The district was required to fund the student's stay put placement from the date of the parents' July 1, 2024 initial due process complaint notice through the pendency of these proceedings in accordance with the IHO's interim decision on pendency dated October 28, 2024 (Interim IHO Decision at pp. 1-2). The student's pendency services were based on an unappealed June 17, 2024 IHO decision. According to the IHO's interim decision, the student was entitled to 12-month services, including tuition at Fusion, 25-30 hours per week of 1:1 teaching from a certified special education teacher, 15 hours per week of trained instructor support, five 45-minute sessions per week of speech-language therapy, five 45-minute sessions per week of OT, two 60-minute sessions per week of PT, team training and/or expert consultation on an as needed basis, up to four hours per month of parent counseling and training, online school/programming/instruction to include science instruction two times per week, as well as IXL, Fishtank, and Cognishine, and a metrocard for transportation (id. at p. 1).
While a student is entitled to remain in his or her stay-put placement during the pendency of a proceeding, this statutory protection is similar to preliminary injunctive relief to protect the student while the proceedings are pending and is distinct from the ultimate relief available to a parent through the due process proceedings (20 U.S.C. § 1415 [j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]). However, in this instance, the student received services under pendency for the entirety of the 12-month, 2024-25 school year and the parents' initial and amended due process complaint notices requested the same services for both pendency and the ultimate relief as part of the hearing (see Parent Exs. A at pp. 2, 12-13; B at pp. 2-3, 13-14). According to the IHO's interim decision, the district was provided an opportunity to respond to the parents' pendency request and failed to do so (Interim IHO Decision at p. 2; see also Oct. 10, 2024 Tr. p. 18). During the November 25, 2024 impartial hearing date, the district representative indicated that the student was receiving pendency services (Tr. p. 12). Accordingly, the parents have received all of the relief they had sought in this proceeding.
Additionally, a claim may not be moot despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318-23 [1988]; Toth, 720 Fed. App'x at 51; Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040). The exception applies only in limited situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). It must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration" (Murphy v. Hunt, 455 U.S. 478, 482 [1982]; see Knaust, 157 F.3d at 88). Many IEP disputes escape a finding of mootness due to the short duration of the school year facing the comparatively long litigation process (see Lillbask, 397 F.3d at 85). Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]; Toth, 720 Fed. App'x at 51; see Hearst Corp., 50 N.Y.2d at 714-15). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Murphy, 455 U.S. at 482; Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 120 [2d Cir. 2001]). Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence (Russman, 260 F.3d at 120; but see A.A., 2017 WL 2591906, at *7-*9 [finding that the controversy as to "whether and to what extent the [s]tudent can be mainstreamed" constituted a "recurring controversy [that] will evade review during the effective period of each IEP for the [s]tudent"]; see also Toth, 720 Fed. App'x at 51 [finding that a new IEP that did not include the service requested by the parent established that the parent's concern that the prior IEP would be repeated was not speculative and the "capable of repetition, yet evading review" exception to the mootness doctrine applied]).
Some courts have taken a dim view of dismissing a Burlington/Carter reimbursement case as moot because all of the relief has been obtained through pendency (New York City Dep't of Educ. v. S.A., 2012 WL 6028938, at *2 [S.D.N.Y. Dec. 4, 2012]; New York City Dep't of Educ. v. V.S., 2011 WL 3273922, at *9-*10 [E.D.N.Y. Jul. 29, 2011]), while others have found it an acceptable manner of addressing matters in which the relief has already been realized through pendency (see V.M., 954 F. Supp. 2d at 119-20 [explaining that claims seeking changes to the student's IEP/educational programing for school years that have since expired are moot, especially if updated evaluations may alter the scrutiny of the issue]; Thomas W. v. Hawaii, 2012 WL 6651884, at *1, *3 [D. Haw. Dec. 20, 2012] [holding that once a requested tuition reimbursement remedy has been funded pursuant to pendency, substantive issues regarding reimbursement become moot, without discussing the exception to the mootness doctrine]; F.O., 899 F. Supp. 2d at 254-55; M.R. v. S. Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *9 [S.D.N.Y. Dec. 16, 2011]; M.S., 734 F. Supp. 2d at 280-81 [finding that the exception to the mootness doctrine did not apply to a tuition reimbursement case and that the issue of reimbursement for a particular school year "is not capable of repetition because each year a new determination is made based on [the student]'s continuing development, requiring a new assessment under the IDEA"]).
Initially, review of the district court decision in V.S., shows that matter was determined not to be moot because a decision as to the adequacy of the proposed IEP in that matter would have supplanted the student's then-current pendency placement in that matter and established a new educational placement for the student (V.S., 2011 WL 3273922, at *10). However, in this matter, neither party has appealed from the IHO's determination on the merits that the district failed to offer the student a FAPE for the 12-month, 2024-25 school year (see IHO Decision at p. 23). Accordingly, there can be no determination on the merits to the contrary in this proceeding and there is no further relief that could be addressed in this matter that is ongoing and further remediable.
Additionally, the capable of repetition yet evading review exception to mootness would not apply because the conduct complained of—the district's failure to offer the student a FAPE—is no longer at issue in this proceeding. Rather, the parties' dispute centers around the unilateral placement consisting of enrollment at Fusion as well as particular home-based services the parents obtained as self-help to remedy the district's denial of a FAPE to the student. As the FAPE determination has already been addressed and the only issues in this matter relate to the appropriateness of unilateral placement and the weighing of equitable considerations, any parental concern that the district would continue to recommend the same program is not addressable at this level of the proceeding and cannot be used to justify a finding that the matter is "capable of repetition, yet evading review." While the Second Circuit has noted that "IEP disputes likely satisfy the first factor for avoiding mootness dismissals" because "judicial review of an IEP is 'ponderous'" (Lillbask, 397 F.3d at 87), this does not seem to be a concern in this matter as the IEP dispute has been removed. Without an IEP dispute, the question of the appropriateness of a unilateral placement could be made in a much shorter time frame. More pertinently, however, because there is no longer a dispute as to the student's educational programming, there is no district action "capable of repetition, yet evading review." As such, the issue of whether a unilateral placement is appropriate, unlike FAPE, does not fit into the mootness exception as it is not capable of repetition yet evading review.
Based on the foregoing, the questions of whether the parents' unilateral placement was appropriate and whether equitable considerations favor relief for the parents are moot as there is no further relief that may be granted. The district's cross-appeal will be addressed below.
C. Prospective Relief
The district cross-appeals from those parts of the IHO's decision to the extent to which it found some aspects of the parents' unilateral placement were appropriate, that found that equitable considerations favored the parents, and awarded the parents specific prospective relief in the form of IEP amendments. The district also asserts that the IHO's directive to investigate the availability of RPM at potential residential placements exceeded the scope of the parents' amended due process complaint notice and was improper. As relief, the district requests that the IHO's findings be reversed and the orders awarding prospective relief be vacated. In light of the above findings, it is not necessary to further address the district's cross-appeal of the IHO's determinations related to her prong II and prong III Burlington/Carter analyses. They were flawed insofar as the IHO failed to adhere to the necessary binary inquiry. Nevertheless, the district correctly argues that the IHO erred in awarding the parents prospective relief.
The IHO's decision as a whole expressed considerable reticence regarding the services from Fusion, and the IHO not envision the continuation of the student's placement at Fusion beyond was mandated under the stay-put provision. The IHO clearly found that Fusion failed to offer specially designed instruction (IHO Decision at p. 24). Instead, in her decision, the IHO ordered the district to immediately convene a CSE meeting to modify the student's IEP to include 12-month (42-week) home-based instruction consisting of 25 hours per week of 1:1 SETSS with an RPM trained instructor, two hours per week of 1:1 online science instruction, six hours per week of 1:1 in-person ELA instruction with an RPM trained instructor, one hour per week of individual PT with a licensed provider, 30 minutes every two weeks of 1:1 online art instruction with an RPM trained instructor, and online curricula of IXL and Match Fishtank (IHO Decision at p. 27). The IHO also ordered the district to immediately investigate the existence of any available nonpublic school placement that included, at minimum, small classes, qualified teachers trained in RPM or similar methodology and/or a 1:1 RPM-trained communication partner for the student, grade-level content, behavioral supports, and the provision of all necessary related services for the 12-month school year (id.).
Generally, an award of prospective relief in the form of prospective placement of a student in a particular type of program and placement, under certain circumstances, has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y. Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]). However, concerns about circumventing the CSE process arise most prominently in matters where the school year challenged has ended and, in accordance with its obligation to review a student's IEP at least annually, the CSE would have already convened to produce an IEP for the following school year (see V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *7 [S.D.N.Y. Aug. 17, 2022] [acknowledging that "orders of prospective services are disfavored as a matter of law" and, in the matter at hand, indicating that "the CSE should have already convened for subsequent school years]; M.F. v. N. Syracuse Cent. Sch. Dist., 2019 WL 1432768, at *8 [N.D.N.Y. Mar. 29, 2019] [declining to speculate as to the likelihood that the district would offer the student a FAPE "in the future" and, therefore, denying prospective relief]; Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 [D.D.C. Aug. 24, 2012] [noting that prospective placement is not an appropriate remedy until the IEP for the current school year has been completed]).
In this instance, and at this point of the proceeding, the 12-month, 2024-25 school year at issue has ended; and, presumably, the CSE should have convened to craft an IEP to meet the student's needs for the 12-month, 2025-26 school year. Accordingly, there is no basis to award prospective relief in this case (see Eley, 2012 WL 3656471, at *11). If "the parent disagrees with the recommended programming for the 20[25-26] school year, the appropriate course would be to begin a new impartial hearing" (Application of a Student with a Disability, Appeal No. 23-010).
In addition, the district correctly argued that the parents did not request prospective relief in their amended due process complaint notice and the IHO did not provide notice to the parties that she intended to award prospective relief the parents did not request. With regard to the IHO's directive for the district to "investigate the existence of any available NPS placement that would include … small classes, qualified teachers trained in RPM or similar methodology and/or a 1:1 RPM-trained communication partner for the student, grade-level content, behavioral supports, and the provision of … related services (at minimum OT, PT, SLT, and PCAT)" for the 12-month school year, such a directive is unsupported by the hearing record (IHO Decision at p. 27).
There are no evaluations in the hearing record to support a finding that the student requires RPM as a specific methodology to the exclusion of all others.[15] Notably, the RPM methodology is not without controversy in educational circles and has been the subject of dispute elsewhere—as noted in one State-level due process decision "[t]he American Speech Language Hearing Association has issued a position statement which is currently in effect on Rapid Prompting Method, which includes the Spelling to Communicate method. The American Speech Language Hearing Association does not recommend the use of such methods. The American Speech Language Hearing Association requires speech language pathologists to inform and warn clients, family members, caregivers, teachers, administrators and other professionals that there is no evidence that messages produced using these methods reflect communication by the person with a disability[,] before using or considering using rapid prompt methods, such as Spelling to Communicate," and the parents in that proceeding conceded that there was no scientific research to support the Spelling to Communicate method (In re Lower Merion School District, 120 LRP 14590 [SEA PA Dec. 15, 2019]; see K.M. by & Through C.M. v. Bd. of Educ. of Montgomery Cty., 2019 WL 330194, at *2 [D. Md. Jan. 25, 2019] [noting that the school district refused to employ the facilitated communication method used by a parentally-obtained private provider], adhered to on denial of reconsideration, 2019 WL 3892321 [D. Md. Aug. 19, 2019]); however, at times, other school districts appear to have allowed at least some use of this methodology with some alleged problems (see Duncan v. San Dieguito Union High Sch. Dist., 2019 WL 4016450, at *1 [S.D. Cal. Aug. 26, 2019]).
Based on the foregoing and there being no clear consensus, supported by convincing evaluative information that the student required RPM, the IHO erred in ordering the CSE to investigate placing the student in a residential setting that utilized RPM (see A.M. v. New York City Dep't of Educ., 845 F.3d 523, 543–46 [2d Cir. 2017] [referencing and following the proposition that when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not reasonably calculated to enable the child to receive educational benefits]). The IHO's orders directing the district to convene the CSE to amend the student's IEP and to investigate potential residential placements must be reversed.
VII. Conclusion
In summary, the IHO's directives requiring the district to immediately convene a CSE meeting to modify the student's IEP to include 12-month (42-week) home-based instruction consisting of 25 hours per week of 1:1 SETSS with an RPM trained instructor, two hours per week of 1:1 online science instruction, six hours per week of 1:1 in-person ELA instruction with an RPM trained instructor, one hour per week of individual PT with a licensed provider, 30 minutes every two weeks of 1:1 online art instruction with an RPM trained instructor, and online curricula of IXL and Match Fishtank; and to "investigate the existence of any available NPS placement that would include … small classes, qualified teachers trained in RPM or similar methodology and/or a 1:1 RPM-trained communication partner for the student, grade-level content, behavioral supports, and the provision of … related services (at minimum OT, PT, SLT, and PCAT)" for the 12-month school year, must be reversed.
In addition, while the IHO did not correctly apply the Burlington/Carter three-part test to determine whether the parents were entitled to public funding for their unilateral placement, I find that it is unnecessary to review whether their unilateral placement was appropriate or whether equitable considerations warrant a reduction in relief because the district has already funded all of the parents' requested relief pursuant to pendency.
I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations above.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's decision dated March 5, 2025, is modified by reversing those portions which directed the district to amend the student's IEP and to investigate the existence of potential residential placements capable of implementing RPM.
IT IS FURTHER ORDERED that the parents are entitled by operation of law to the costs of the student's tuition at Fusion for the 2024-25 school year as well as home-based services in accordance with pendency through the end of the 2024-25 12-month school year.
Footnotes
[1] State law defines SEIT services (or, as referenced in State regulation, "Special Education Itinerant Services" [SEIS]) as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "[SEIS] for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available athttps://www.nysed.gov/special-education/special-education-itinerant-services-preschool-children-disabilities). A list of New York State approved special education programs, including SEIS programs, can be accessed at https://www.nysed.gov/special-education/approved-preschool-special-education-programs. SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii]; see Educ. Law § 4410[1][k]).
[2] Rapid Prompting Method is described in the hearing record as "a communication method that relies on a certified or highly trained provider holding a letter or number board and repeatedly prompting" the student using verbal, auditory, visual or tactile cues for the student to spell out responses (Parent Ex. D at p. 1).
[3] At the time of the evaluation the student was receiving two 45-minute sessions per week of PT (Dist. Ex. 4 at p. 2).
[4] According to the parents, the January 22, 2024 CSE was a reconvened meeting for the purpose of reviewing the PT evaluation (Parent Ex. C at p. 1). However, the January 22, 2024 IEP did not indicate that it was an IEP amendment or a reconvene of a CSE meeting and further indicated that the student's projected date of annual review was January 22, 2025 (Dist. Ex. 1 at pp. 1, 33)
[5] The student's eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[6] Fusion has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[7] The Fusion contract indicated that the Mastery Learning Model required students to master class material before moving on to the next level (Parent Ex. E at p. 4). The contract explained that while some students may attain mastery with the base amount of sessions others would require mastery learning sessions to ensure proficiency and meet attendance requirements (id.).
[8] The parents filed an initial due process complaint notice on July 2, 2024 (Parent Ex. A at pp. 1-14).
[9] The hearing record includes transcripts that were not consecutively paginated. The transcripts for an August 1, 2024 prehearing conference, an August 28, 2024 status conference, and an October 10, 2024 status conference were consecutively paginated. The transcripts for a prehearing conference on November 25, 2024, and January 9, 2025 and January 24, 2025 impartial hearing dates were consecutively paginated, however due to an apparent change in transcription service providers, the November 24, 2024 prehearing conference transcript begins with page 1. To the extent it is necessary to cite to the transcripts for the prehearing and status conferences that took place between August and October 2024, they will be cited by the date and corresponding page number (see Aug. 1, 2024 Tr. pp. 1-4; Aug. 28, 2024 Tr. pp. 5-9; Oct. 10, 2024 Tr. pp. 10-19). All other transcript citations in this decision refer to the proceedings held on November 24, 2024, January 9, 2025, and January 24, 2025 (see Tr. pp. 1-128).
[10] At times in the hearing record, the special education services provided by the 1:1 SEIT appeared to be interchangeably referenced as either SEIT services or SETSS. The IHO noted in her decision that SEIT services are for preschool students and that she would refer to the 1:1 instruction as SETSS (IHO Decision at p. 23 n.50). The term SETSS is not defined in the State continuum of special education services (see NYCRR 200.6), and the manner in which those services are treated in a particular case is often in the eye of the beholder. 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.
[11] The IHO stated that the main deficiency with the Fusion was that it did not offer specially designed instruction (IHO Decision at p. 24). She noted the Fusion teachers had no training in RPM and would be unable to communicate with the student without the presence of the SEIT (id.). The IHO found that while the SEIT was providing specially designed instruction, Fusion was not, and that "[s]imply allowing the SEIT to be present" did not constitute specially designed instruction, nor did the 1:1 class at Fusion as it was the school's model and offered to all students (id.). The IHO also expressed concern regarding the "conflicting evidence" of the student's schedule noting that "it c[ould] not be determined what the student's schedule ha[d] actually been at any specific time during the school year" (id.).
[12] The IHO stipulated that if the district did not implement the services directly, the parents would be entitled to continued reimbursement for the remainder of the 2024-25 school year (IHO Decision at p. 27).
[13] The IHO stipulated that until an appropriate nonpublic school placement could be found, the student's IEP would consist of the home-instruction as ordered (IHO Decision at pp. 27-28).
[14] 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).
[15] In her affidavit in lieu of direct testimony, the student's SEIT testified that RPM was the "only way [the student] c[ould] communicate" and that he required an instructor trained in RPM "because that [wa]s the only way he c[ould] access learning" (Parent Ex. O ¶ 60). The SEIT further testified that the student could not access the curriculum without the use of RPM and attributed his steady progress to 1:1 instruction and the use of RPM (id. ¶ 61). The student's ELA academic tutor testified that the student could learn in a classroom "supportive of alternative communication methods such as RPM, AAC, and spelling, and if it presume[d] competence" (Parent Ex. S ¶¶ 2, 6, 10, 54). The student's mother testified that "RPM ha[d] continued to play an essential role in [the student]'s ability to engage in grade level academics" (Parent Ex. U ¶ 6). The parent also testified that RPM was recommended by the evaluator who conducted a June 2022 neuropsychological evaluation (id. ¶ 26). However, review of the June 2022 neuropsychological evaluation report indicates that several assessments were conducted with the use of RPM and with the student's SEIT acting as a scribe (Parent Ex. D at pp. 6-7, 9, 12). In the clinical summary and recommendations section of the report, the evaluator noted the student "reportedly continu[ed] to make gains, academically, and especially with his ability to communicate more fluently and independently with the use of an RPM letter board," however, the student was "also reportedly experiencing significantly more problems with attention, impulsive behavior, emotional and behavioral dysregulation, and anxiety" (id. at p. 12). The evaluator also noted that much of the student's testing results had been obtained "via the use of RPM with the assistance of his 1:1 SEIT and/or with significant scaffolding and support from the examiner and/or his SEIT, [the student]'s performances range[d] widely, depending on the nature and demands of each task administered to him" (id.). The evaluator also noted "that not all standardized activities could meaningfully be administered to him at this time due to factors such as increased motor demands and demands for use of speech"(id.). The evaluator stated that "[the student] should also continue to be allotted full-time support from his SEITs/trained instructors, who [we]re experienced in, and should continue to utilize, the RPM method with him, adapting it appropriately to his curriculum; a paraprofessional would not be sufficient to meet these needs given their lack of proper training with the highly specialized, sensitive nature of this method" (id. at p. 14). The parent testified that the student's SEIT used RPM with the student and that "[u]tilizing RPM ha[d] been the way [the student] ha[d] been able to communicate and engage with learning," and since the SEIT was "highly experienced with RPM, she serve[d] as [the student]'s communication partner" when he received instruction at Fusion and from his home-based science instructor (Parent Ex. U ¶ 65). The parent also testified that the student's physical therapist was not trained in RPM, however he was "effective at getting [the student] to do the physical work through prompting and modeling" (id. ¶ 77). The parent further testified that the student continued to excel in academic areas and showed strong interest in and aptitude for learning when given effective support, which had "only been possible with a highly trained team who [we]re skilled at using the RPM and c[ould] read [the student]'s subtle cues that indicate[d] he [wa]s moving towards dysregulation" (id. ¶ 87). Nevertheless, review of the hearing record indicates that the student's SEIT was the only witness who testified that the student could only access learning through the use of RPM to the exclusion of any other methodology.