STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-231
Application of a STUDENT WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
The Law Offices of Regina Skyer and Associates, L.L.P., attorneys for petitioners, by Daniel Morgenroth, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Irene Dimoh, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request to be reimbursed for their daughter's tuition at the International Academy of Hope (iHope) for the 2023-24 school year. The appeal must be dismissed.
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 hearing record is sparse regarding the student's educational history prior to the 2023-24 school year. The student has reportedly received diagnoses of spastic quadriplegic cerebral palsy, epilepsy, seizure disorder, and cortical visual impairment (CVI) and appears to have received services through the Early Intervention Program (EIP) and the CPSE (Dist. Ex. 5 at p. 4; see Dist. Ex. 13 at pp. 1, 2, 4). For the 2021-22 school year, the student attended a district specialized school (Dist. Exs. 7 at p. 1; 13 at p. 1).[1]
The CSE convened on January 23, 2023, found the student eligible for special education and related services as a student with multiple disabilities, and developed an IEP for the student with a projected implementation date of January 30, 2023 (see Dist. Exs. 7; 8). The January 2023 IEP indicated that, at least as of May 18, 2022, the student was attending the district specialized school and subsequently began attending iHope in the summer of 2022 (Dist. Ex. 7 at pp. 1, 3).
The January 2023 CSE recommended the student receive 12-month services consisting of 35 periods per week in a 12:1+ (3:1) special class in a specialized school for all subjects and three periods per week of adapted physical education (Dist. Ex. 7 at pp. 23-24). Further, the January 2023 CSE recommended related services consisting of four 60-minute sessions per week of individual occupational therapy (OT); five 60-minute sessions per week of individual physical therapy (PT); and four 60-minute sessions per week of individual speech-language therapy (id.). The January 2023 CSE also recommended the student receive one 60-minute session per month of parent counseling and training in a group; a daily individual health paraprofessional to assist with the student's ambulation, safety, and feeding; individual nursing services as needed; assistive technology consisting of switches for daily individual use throughout the school day and at home; and special transportation services (id. at pp. 24-25, 29). The recommended special transportation services included the following: transportation to and from the closest safe curb location to school, adult supervision in the form of a 1:1 paraprofessional, a lift bus, and a regular-sized wheelchair (id.. at p. 29).
On June 9, 2023, the parent signed an enrollment contract with iHope for the 2023-24 school year from July 6, 2023 and ending on June 30, 2024, with the executive director/principal of iHope executing the contract on June 13, 2023 (Parent Ex. C).
By prior written notice dated June 18, 2023, the district summarized the recommendations of the January 2023 CSE consisting of placement in a 12:1+ (3:1) special class, and related services, and provided a description of the evaluative information considered by the CSE that included a May 18, 2022 iHope intake evaluation, an August 11, 2022 medication administration form, and an October 2022 iHope quarterly progress report (Dist. Ex. 8 at p. 1).[2] The district also sent a school location letter to the parent, dated June 18, 2023 (Dist. Ex. 9).
On June 20, 2023, the parents provided the district with a letter notifying the district of their intent to place the student at iHope for the 12-month 2023-24 school year and to seek funding from the district due to its failure to recommend a program and placement that would have provided the student with a meaningful educational benefit (Parent Ex. B at p. 1). The parents disagreed with the CSE's recommended class size and listed, among their concerns, the district's failure to develop goals, failure to recommend sufficient related services, failure to consider the recommendations of the most recent evaluations, failure to recommend assistive technology services, failure to provide a translated IEP, and failure to include a nurse/representative from the nursing agency, as well as the lack of sufficient management needs (id. at p. 2). The letter also stated that the district failed to recommend a school placement to implement the student's special education program and requested the CSE address the identified issues prior to the beginning of the school year or alternately fund the proposed unilateral placement at iHope (id.).
A. Due Process Complaint Notice
In a due process complaint notice dated September 20, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year by failing to remedy defects or otherwise respond to concerns identified by the parents regarding the district's recommended program for the 2023-24 school year (Parent Ex. A at p. 1). The parents also requested pendency for the student at iHope based on an unappealed IHO decision (id.).
The parents alleged the district's recommended program summarized in the January 2023 IEP was inappropriate for the student as the student had "previously attended and failed to make progress" in a similar program because the class was "too overwhelming and crowded" (Parent Ex. A at p. 2). According to the parents, the district did not conduct its own evaluation of the student and instead relied on reports from iHope but ignored their recommendations (id.). Among other allegations, the parents alleged that the district failed to develop certain goals including for toileting, feeding, and adapted physical education, did not recommend assistive technology for the student, did not recommend a plan for transitioning the student into the public school, and did not "consider the continuum of placement options," specifically, a 6:1+1 special class, the class size the student was progressing in while attending iHope (id. at pp. 2-4). The parents also included allegations that the district did not notify the parents of the assigned public school prior to the start of the 2023-24 school year (id. at p. 4). For relief, the parent sought funding for tuition and transportation costs at iHope for the 2023-24 school year (id.).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on February 10, 2025 and concluded the same day (Tr. pp. 1-63). In a decision dated March 12, 2025, the IHO found that the district offered the student a FAPE for the 2023-24 school year and denied the parents' request for funding for tuition and transportation at iHope for the 2023-24 school year (IHO Decision at p. 2).
At the outset, the IHO determined that the district committed a procedural violation by not conducting a reevaluation of the student as the hearing record did not include a district evaluation; however, the IHO found the CSE was justified in relying on the evaluations conducted by iHope (IHO Decision pp. 4). The IHO reasoned that while the district was responsible for evaluating the student, relying on the more recent evaluations obtained from the parents' unilateral placement allowed the district to develop an appropriate program and the student's right to a FAPE was not impeded for the 2023-24 school year despite the procedural violation (id.). The IHO made an explicit finding that the district developed appropriate goals for the student (id.at pp. 4-5). The IHO noted the parents' allegation that the IEP did not address toileting and feeding; however, the IHO found that those needs were noted in the present levels of performance and addressed by the speech-language, OT, and PT goals (id.). Moreover, the IHO found that the district's recommended 12:1:+(3:1) special class was an appropriate placement because it was the most supportive classroom available to the student and the IEP also included a 1:1 health paraprofessional to address the student's substantial health needs (id. at p. 5). The IHO reasoned that although the parents and iHope director thought the recommended class was "too large" for the student, the hearing record lacked evidence to support their contention and, consequently, there was "no reason to disturb the reasonable recommendation made by the CSE" (id.). The IHO then turned to the parents' assertion that the CSE failed to recommend vision education services for the student and found it was outside the scope of the hearing (id.). However, the IHO made an alternative finding that the parents' argument was "unpersuasive in light of the clear indication in the [student's] IEP that such services would be considered upon receipt of an updated opthomological [sic] report" (id.). The IHO then found the parent's testimony that she did not receive a placement notification from the district lacked credibility, as it was inconsistent, and the IHO further held that even if the parent's testimony was true it "did not rise to the level of a denial of FAPE" (id. at pp. 5-6). Accordingly, the IHO found that the district offered the student a FAPE for the 2023-24 school year (id. at p. 6).
Despite finding that the district offered the student a FAPE for the 2023-24 school year, the IHO included an alternative finding regarding the appropriateness of iHope, stating that she found the unilaterally obtained program at iHope "specifically designed to meet the student's unique needs" and that those needs were being addressed (id.). The IHO also stated that the hearing record demonstrated that equitable considerations did not weigh against the parents as the parents provided the necessary notice and the tuition costs were not excessive.
In light of the IHO's finding that the district offered the student a FAPE, the IHO dismissed the parents' due process complaint notice and declined to award any of their requested relief (IHO Decision at p. 8).
IV. Appeal for State-Level Review
The parents appeal, alleging that the IHO erred in denying their requested relief for the 2023-24 school year.[3] The parents argue that the IHO erred by finding that the district offered the student a FAPE asserting that the January 2023 IEP failed to include recommendations for assistive technology, vision education services, and appropriate goals for toileting. The parents further argue that the IHO erred in finding the district "carried its burden" to show that the recommended 12:1+(3:1) special class was appropriate as the recommendation ran counter to the parents' contention that the school was "simply too large for [the student]," the information from iHope staff, and the student's prior experiences in that setting. Additionally, the parents object to the IHO's credibility finding as to the parent's testimony that she did not receive notice of the school to which the student was assigned to attend for the 2023-24 school year and that because the parent did not have knowledge of the location where services would be implemented, the district denied the student a FAPE.
In an answer the district argues that it created a procedurally appropriate IEP and that the parents were properly notified of the recommended program and where it would be implemented in a prior written notice and a school location letter that were included in the hearing record.[4] The district argues that its CSE recommended appropriate assistive technology and that the IDEA does not require the precise technical requirements the parents allege. The district argues that the parents did not provide the required form to support a recommendation for vision education services and that the district's recommended program complied with the relevant regulations.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[5]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
A. Preliminary Matters
1. Scope of the Impartial Hearing
Before reaching the merits of the parents' appeal, the first issue to be addressed is whether the IHO erred in determining that the parent's due process complaint notice did not raise any allegations regarding vision education services and that a lack of vision education services on the IEP was outside the scope of the hearing. The parent asserts that the language in the due process complaint notice should be interpreted broadly to include vision education services and the district argues that the parents' due process complaint notice did not contain allegations concerning vision education services.
Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing (Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056). Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[i][7][i][a]; [j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]). Indeed, "[t]he parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function. To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district" (R.E., 694 F.3d 167 at 187-88 n.4; see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 [2d Cir. June 18, 2014]).
Here, review of the parents' due process complaint notice shows that it did not specifically raise issues regarding vision education services (see Parent Ex. A). The parent concedes this, but argues that the due process complaint notice included allegations that the district relied on reports produced by iHope, ignored the recommendations contained in those reports, and failed to conduct additional evaluations to support its recommendation for "'a materially different program that the one [the student] had been receiving at the time" (Req. for Rev. ¶4; Parent Ex. A at p. 2). The parents assert that this was sufficient to put the district on notice that they were challenging the district's recommendations to the extent they differed from the student's program at iHope, which the parents assert included vision education services. However, the parents due process complaint notice did not make this connection. Instead, in the sentence following the above statement, the due process complaint notice ties the allegation to an assertion that the parents' were unable to participate in the CSE process, rather than the substance of the recommended district programing (Parent Ex. A at p. 2). Specially, the due process complaint notice asserts "[i]n doing so, the CSE significantly impeded the ability of the [p]arents to participate in the development of the IEP" (id.). In addition, when the parents did assert substantive concerns with the recommended program, the parents did not raise vision education services and focused on the recommended class size (id. at pp. 3-4). Accordingly, the parents' more general allegation cannot be said to have given the district proper notice of a claim that the CSE improperly excluded vision education services from its January 2023 IEP recommendations.
To the extent that the Second Circuit has held that issues not included in a due process complaint notice may be ruled on by an administrative hearing officer when the district "opens the door" to such issues with the purpose of defeating a claim that was raised in the due process complaint notice (M.H., 685 F.3d at 250-51; see B.M., 569 Fed. App'x at 59; N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 585 [S.D.N.Y. 2013]; A.M. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 282-84 [S.D.N.Y. 2013]; J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, at *9 [Aug. 5, 2013]), that rule does not apply in this case because, as further described below, the identified issues appear to have first been raised by either the IHO or counsel for the parents.
Parents' counsel did not allege the lack of vision education services as grounds for disputing the sufficiency of the 2023 IEP until her closing statement (Tr. p. 57). Moreover, the first mention of a lack of vision education services was solicited on cross-examination when the district's attorney asked the parent's witness, the director at iHope, to describe "in what way" the program at iHope "differs substantially" from the district's recommendations (Tr. pp. 23-24). While parents' counsel sought further information on redirect (Tr. pp. 31-32), the issue of vision services was not something the district raised in the presentation of its case in chief nor was it raised by parents' counsel in her opening statement (see Tr. pp. 11-15). Parents' counsel first argued the issue in closing and the IHO did not raise the issue except in asking a clarifying question of the district's counsel after presentation of her closing in the context of a different service (Tr. p. 56).Based on the above, the hearing record demonstrates that the district did not open the door to issues regarding vision education services (see A.M., 964 F. Supp. 2d at 282-84; J.C.S., 2013 WL 3975942, at *9).
Accordingly, the IHO was correct that this issue was not properly raised and was outside the scope of the impartial hearing and there is no need to address his alternative findings in that regard (see B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 611 [E.D.N.Y. 2012] [explaining that "[t]he scope of the inquiry of the IHO, and therefore the SRO . . . , is limited to matters either raised in the . . . impartial hearing request or agreed to by [the opposing party]]").
B. FAPE—January 2023 IEP
1. Student Needs
In order to determine if the district offered the student a FAPE a review of the student’s needs as identified in the student's January 2023 IEP is necessary.
According to the January 2023 CSE meeting attendance sheet, and meeting minutes, participants included a district representative (school psychologist), and district special education teacher; iHope staff including a social worker, special education teacher, speech therapist, physical therapist, occupational therapist, and vision education teacher; and the student's parent (Dist. Exs. 7 at p. 33; 10; 11 at p. 1). As reported in the prior written notice dated June 18, 2023, the CSE considered information from the May 18, 2022 iHope intake form, the August 11, 2022 medication administration form, and the October 14, 2022 iHope quarterly progress report when developing the student's January 2023 IEP (Dist. Exs. 12-14).
The January 2023 IEP contained much of the information from the iHope reports and medical form, verbatim, in addition to reflecting input from the iHope providers and parent who were present at the CSE meeting (compare Dist. Ex. 7, with Dist. Exs. 12-14).
The January 2023 IEP first reflects information from the May 2022 iHope student intake evaluation which indicated that, at the time of the evaluation, the student was attending a district school (id.). As reflected in the IEP, per the May 2022 iHope evaluation, the student slept throughout the observation, and the parent reported the student had not attended school lately due to her wheelchair being broken (id.). The parent stated the district school called frequently to report that the student would "sleep and cry during the day" (id. at pp. 1-2). The parent also reported that, at the district, the student participated in "painting, cooking, and yoga activities at school, and like[d] to use the iPad" (id. at p. 2). Per parent report, the student enjoyed books and noted she usually read textured books and the student "appear[ed] to be listening" when read to (id.).
With regard to academics, the January 2023 IEP included information from the student's iHope first quarter progress report that summarized the student's educational performance at iHope from July 11, 2022 through October 14, 2022 (Dist. Ex. 7 at p. 2, see Dist. Ex. 12). Consistent with the iHope report, the IEP indicated that the student had begun attending iHope in summer 2022 and her "attendance in the summer and during [the first] quarter [of the 2022-23 school year] ha[d] been inconsistent secondary to transportation issues" (id.). The IEP reflected that at iHope the student engaged in making choices during reading activities by "smiling to confirm her choice with partner assisted scanning" (id.). In addition, the student used a "print flip chart alternative pencil" to choose letters in her name by smiling through partner assisted scanning (id. at pp. 2-3). The IEP noted that, when provided with moderate verbal prompts, the student on one occasion used partner assisted scanning to choose a matching shape to complete an ABAB pattern; however, she did not respond to requests to match the next shape (id. at p. 3).
The January 2023 IEP also borrowed information from the May 2022 iHope student intake evaluation to describe the student's speech and language development (Dist. Ex. 7 at p. 2). The IEP reflected that the student did not communicate with verbalizations, although she used body language and picture symbols, smiled when she liked something, and had experience with yes/no symbols (id.). The student located to sound and a person's voice (id.). In the area of feeding, the IEP reflected that the student was " on a pureed diet" and per parent report the student choked and coughed when eating, although had not yet had a swallow study (id.). As related to augmentative and alternative communication (AAC), the IEP noted the student had experience with an iPad, and with "switches but only for play purposes" (id.). At the January 2023 CSE meeting, the student's iHope speech therapist stated the school had been trialing a variety of AAC devices with the student, to determine the most appropriate for her needs (id.).
The January 2023 IEP also included information from the iHope October 2022 quarterly progress report related to the student's speech-language therapy (Dist. Ex. 7 at pp. 3-4). Echoing the iHope progress report, the IEP again noted the student’s inconsistent attendance at iHope due to transportations issues in the summer of 2022 and stated that school sessions focused on developing rapport with the student, and assessing her speech language skills as well as "trialing different switches, switch sites, and mounting/positioning options in order to determine the most appropriate switch system suited to meet [the student's] communication needs" (id. at p. 3). The IEP indicated that at the time of the progress report the student was trialing a "jellybean switch" mounted to her tray that could be accessed with either her right or left hand (id.). As noted in the iHope October 2022 progress report, the IEP stated that therapy focused on teaching the student the function and purpose of the switch and the student "most frequently use[d] her switch to participate in simple cause-effect games" (id.). According to the IEP the student "use[d] her switch to participate in cause-effect activities with ~50% accuracy given aided language stimulation, an expectant pause and maximal verbal, auditory and/or tactile cues" (id.).
As related to feeding, the January 2023 IEP reported, per the iHope October 2022 quarterly progress report, that the student was "on a puree diet with thin/thickened liquid" and stated the student presented with dysphagia (swallowing disorder), specifically oropharyngeal dysphagia, characterized by anterior loss of foods and liquids, coughing and changes in vocal quality during mealtime, in addition to poor saliva management (Dist. Ex. 7 at p. 3). The IEP noted student participated in a lunch bunch clinical assessment which resulted in the development of a mealtime plan establishing safe feeding and swallowing strategies to ensure adequate nutrition and hydration (id.). According to the IEP, the student was awaiting a formal swallow study to rule out aspiration and determine the least restrictive diet (id. at pp. 3-4).
Turning to the student's social development, the January 2023 IEP reflected information from the May 2022 iHope student intake evaluation that indicated the student recognized familiar voices, turned to familiar voices, and smiled and giggled to show interest in an activity and demonstrated rejection or disinterest by vocalizing, making a serious facial expression, or not responding (Dist. Ex. 7 at p. 4). As reflected in the IEP, during morning meeting when asked her feelings, the student chose "happy" by smiling through partner assisted scanning (id.).
As related to the student's physical development, the January 2023 IEP included the student's diagnoses of spastic quadriplegic cerebral palsy, and epilepsy, and characterized the student as non-verbal and non-ambulatory (Dist. Ex. 7 at p. 5). The IEP reported information obtained from a vision assessment, completed during the iHope May 2022 intake evaluation (id. at p. 4). Per the vision assessment report, the student "was asleep during the evaluation period" (id.). The vision assessment, as reflected in the IEP, indicated that according to the student's mother the student had a diagnosis of CVI and had a right field preference and preferred the color red (id.). The IEP also reflected that the parent stated the student tracked bright lights and saw best when using a black background in a dark room and noted the student "light gazes" (id. at p. 5). The IEP included information from the October 2022 iHope progress report that indicated, during vision education sessions, the student preferred objects with light and motion and regarded items that were the color red, and that the student needed a quiet, controlled environment to use her vision best (id. at p. 6).
In terms of OT, the January 2023 IEP reported per the May 18, 2022 iHope student intake evaluation, the student needed max assistance for self-care (Dist. Ex. 7 at p. 5). The IEP noted that the student's wheelchair was broken, that she was seen for the May 2022 assessment in an adaptive stroller and would have a new wheelchair in July (id.). As noted in the IEP, the student intake evaluation stated the student always required two-person transfers, however, the student slept during the evaluation and "[a]ctual assessment of [the student’s gross motor skills were not done" (id.). The IEP indicated that, according to parent report, the student did not roll or sit on her own but previously stood using a stander, and the student was in the process of getting a new wheelchair and stander (id.). Per parent report, the student leaned to her right and had hip dysplasia (id.). The IEP reported the student enjoyed getting her hair done and deciding what tools to use for self-care activities (id.).
The iHope October 2022 progress report, as reflected in the January 2023 IEP, noted that the team continued to determine the "best switch sites, types of switches, and mounting and/or positioning" for the student (Dist. Ex. 7 at p. 6). The IEP noted the student inconsistently activated her switch to advance through digital material, when provided moderate assistance and verbal cues to attend to task, and activated her switch inconsistently when prompted with a question or request, provided maximal verbal cues and moderate assistance (id.). The IEP further included information related to OT that the student inconsistently attended to pretend play activities and advanced through steps provided "maximal assistance and verbal cues," and that OT addressed the student's ability to build associations between the need to wash her face and the use of a washcloth or wipe (id.). The IEP also reflected information related to PT that the student required maximum trunk support to lift her head in midline, that she was working on promoting her trunk control and mobility while on the mat and she was able to roll towards either side with moderate assistance (id. at p. 7).
2. Annual Goals
On appeal, the parents argue the IHO erroneously found the lack of toileting goals did not contribute to a denial of a FAPE to the student.[6] 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 January 2023 CSE meeting minutes show that the committee discussed the student's toileting needs in the context of her OT services (Dist. Ex. 11 at p. 2). The iHope occupational therapist, reported that she was developing a toileting schedule for the student and introducing her to sitting on an adaptive toilet seat (Dist. Exs. 7 at p. 5; 11 at p. 2). Further, the IEP noted under management needs that the student "still w[ore] [a] diaper, which require[d] close monitoring to prevent skin breakdown" (Dist. Ex. 7 at p. 8). With regard to the effects of student's needs on her involvement and progress in the general education curriculum, the IEP stated that the student needed a high degree of individualized attention to meet her daily care needs and therefore required the support of a 1:1 paraprofessional; the CSE recommended that the student be supported by a full-time individual health paraprofessional (id. at pp. 8, 25). Although the CSE did not recommend a specific toileting goal for the student, the January 2023 IEP identified toileting as an area of need, noted the student's use of a toileting schedule and adaptive equipment and reflected the CSE's recommendation that the student be provided with the services of a 1:1 paraprofessional to "meet daily care needs" (id. at p. 8). As such, the hearing record supports the IHO's findings that, although not specified in a goal, the IEP noted of the student's abilities and needs related to toileting and otherwise addressed those issues (see IHO Decision at p. 5).
Under these circumstances, the January 2023 IEP's recommendations did not result in a denial of FAPE notwithstanding the lack of a specific annual goal in toileting (see L.O. v. New York City Dep't of Educ., 2016 WL 2942301 at *8 [2d Cir. May 20, 2016] [finding that "although the IEP failed to provide goals and objectives specifically related to [the student's] toileting needs, it nonetheless designed goals that would enable [the student] to make progress in this area."]).
3. Assistive Technology
Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. One of the special factors that a CSE must consider is whether the student "requires assistive technology devices and services, including whether the use of school-purchased assistive technology devices is required to be used in the student's home or in other settings in order for the student to receive a [FAPE]" (8 NYCRR 200.4[d][3][v]; see 20 U.S.C. § 1414[d][3][B][v]; 34 CFR 300.324[a][2][v]; see also Educ. Law § 4401[2][a]). Federal and State regulations describe an assistive technology device as "any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability" and assistive technology service as "any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device" (34 CFR 300.5, 300.6; 8 NYCRR 200.1[e]; [f]). Furthermore, State regulations consider assistive technology services to be a related service defined as a "developmental, corrective, and other supportive services as are required to assist a student with a disability" (8 NYCRR 200.1[qq]).[7] The failure to recommend specific assistive technology devices and services rises to the level of a denial of a FAPE only if such devices and services are required for the student to access his educational program (see, e.g., Application of the Bd. of Educ., Appeal No. 13-214; Application of a Student with a Disability, Appeal No. 11-121).
The parents argue in the request for review that the IHO erred in refusing to find that the CSE's failure to recommend assistive technology services or appropriate assistive technology devices denied the student a FAPE. Specifically, the parents contend that the district failed to order assistive technology services to determine an appropriate device (switch) and appropriate mounting positions to enable the student to benefit from this intervention, rather than generally recommending "switches" as the student's use of assistive technology.
The January 2023 IEP included information shared by the iHope speech-language therapist at the CSE meeting indicating that iHope was trialing a variety of AAC devices with the student to determine the most appropriate device to meet the student's needs (Dist. Ex. 7 at p. 2). As noted above, the IEP cited the May 2022 iHope progress report's narrative that indicated speech therapy sessions focused on "trialing different switches, switch sites, and mounting/positioning options in order to determine the most appropriate switch system suited to meet [the student's] communication needs" (id. at p. 3). The IEP reported that the student most frequently used her switch to participate in simple cause-effect games and, at the time, used a jellybean switch mounted in front of her tray that could be accessed either with her right or left hand (id.). The IEP reported that the student currently used her switch to participate in cause-effect activities with 50 percent accuracy given aided language stimulation, an expectant pause and maximal verbal, auditory and/or tactile cues (id.). Further, the IEP reported that the "[student's] access to her switch varie[d] on a daily basis and [wa]s impacted by her tone that day; as such, switch sites may vary from day to day to accommodate changes in tone" (id.).
Both the management needs section and special factors section of the January 2023 IEP noted the student's need for assistive technology devices (Dist. Ex. 7 at pp. 7, 9). The management needs section indicated the student required an AAC device and switches throughout the academic day in all therapy and classroom settings and the special factors section indicated that the student needed a device or service to address her communication needs (id.). The annual goals also included goals aimed at improving the student's communication needs using her switches (id. at pp. 14-16). Under recommended special education programs and services the IEP specifically recommended that the student receive switches throughout the day, at school and at home (id. at p. 25).
The parent's affidavit testimony stated the district failed to conduct an assistive technology evaluation or address her communication needs despite iHope informing the CSE that the student's preferences for communication and appropriate devices to aid her were still being determined (Parent Ex. L ¶ 35). The director of education at iHope (director) reported the student received related services; however, the director did not indicate that the student received assistive technology support as a related service (see Parent Ex. K ¶¶ 18, 50). The director described assistive technology as "one of the keystones of iHope" and reported that each student was assigned a "specific set of customized [assistive technology] to use throughout the day" and each classroom had its own set of these tools to use with all students during group lessons (Parent Ex. K ¶ 36). The director stated that the iHope assistive technology team provided ongoing training and consultations for staff to help them use assistive technology throughout the day (id.).
Although the parents contend that the student needed assistive technology services to determine an appropriate switch device and appropriate mounting positions, rather than a general recommendation for switches, they also acknowledge that at the private school the student's access to switches varied on a daily basis as "impacted by her tone that day" and switch mounting sites varied from day to day (Req. for Rev. at p. 4). The parents also argue that the district recommended two speech-language goals that were reliant on the use of a switch attached to a voice output communication aid at a preferred switch site, without having assistive technology services to help determine the appropriate switch device and mounting location, as well as not specifically recommending this type of switch (id.). However, review of the annual goals shows that although they did indicate the student would use a switch connected to a voice output communication aid, they were not reliant on a specific type of switch (Dist. Ex. 7 at pp. 14-16). The iHope progress report, used by the district to create the student's January 2023 IEP, included two speech-language goals that included the use of a switch connected to a voice output communication aid (Dist. Ex. 12 at p. 3). At the time of the iHope October 2022 progress report, the student was reported to be using a jellybean switch; however, the student was also continuing to trial different switches (id.). The district adopted the iHope speech-language goals in the January 2023 IEP but did not note the use of a particular type of switch (Dist. Ex. 7 at pp. 14-16).
Here, I note the January 2023 IEP included information from the iHope speech progress report that the student used a variety of switches, in a variety of positions dependent on the student's tone and also noted that therapy "continu[ed] focusing on teaching prerequisites skills and stepping stones needed for switch access" (Dist. Ex. 7 at p. 3). Further, the IEP reported that the student typically used switches to participate in cause-effect activities with 50 percent accuracy, and performing at that level necessitated the provision of aided language stimulation, as well as maximal verbal, auditory, and tactile cues (id.). Moreover, according to the January 2023 CSE meeting minutes, the iHope speech-language therapist reported that iHope was "still exploring" and was "not yet requesting an [assistive technology] evaluation from the DOE " (Dist. Ex. 11 at p. 2). As such, I find that the hearing record supports the recommendations made by the January 2023 CSE and the parents' argument that the district denied the student a FAPE due to its failure to recommended necessary assistive technology services or a specific assistive technology device is without merit.
4. 12:1+4 Special Class
I next turn to the parents' remaining argument that the district's recommended class size was too large for the student and that the IHO erred in finding the district shifted the burden of proof onto the parents.
State regulation indicates that the maximum class size for special classes containing students whose management needs are determined to be highly intensive, and requiring a high degree of individualized attention and intervention, shall not exceed six students, with one or more supplementary school personnel assigned to each class during periods of instruction (8 NYCRR 200.6[h][4][ii][a]). Further, State regulation provides that the maximum class size for those students whose programs consist primarily of habilitation and treatment, shall not exceed 12 students (see 8 NYCRR 200.6[h][4][iii]). In addition to the teacher, the staff/student ratio shall be one staff person to three students (id.). The additional staff may be teachers, supplementary school personnel, and/or related service providers (id.). The Second Circuit has observed that "[i]n the continuum of classroom options, the [12:1+(3:1) special class recommendation] is the most supportive classroom available" (Navarro Carrillo v. New York City Dep't of Educ., 2023 WL 3162127, at *3 [2d Cir. May 1, 2023]).
The IHO found that the 12:1+(3:1) special class with a 1:1 health paraprofessional was an appropriate placement for the student (IHO Decision at p. 5). In doing so he noted the program provided for a classroom with no more than 12 students where, in addition to the teacher, the staff-to-student ratio was one staff person to three students (id.). The IHO stated that it was "undisputed" that the student had highly intensive management needs, required a high degree of individualized attention and intervention, and the IHO noted the CSE had recommended a 1:1 health paraprofessional in addition to the staffing provided for in the classroom (id.).
In the request for review, the parents argue that the IHO erred in shifting the burden to the parent to prove that a 12:1+(3:1) class was too large for the student. The parents asserted that the IHO erred in finding the district's recommended 12:1+(3:1) special class appropriate even though the evaluative material before the CSE and testimony of witnesses recommended a smaller class size for the student.[8]
One of the parents' additional assertions on appeal is that the district's recommendation for a 12:1+(3:1) special class was inappropriate because the student had previously attended a similarly sized special class in the district and did not make progress. Review of the hearing record does not support the parents' position on this point. Initially, the parent testified that the student previously attended a district 12:1+(3:1) special class and did not make progress in that program (Parent Ex. L ¶¶ 16, 17). According to snippets of information in the hearing record, the student attended a district public school during the 2021-22 school year and then attended iHope for the 2022-23 and 2023-24 school years (Parent Exs. K ¶¶ 41-43; Dist. Exs. 12; 13 at p. 1). However, the hearing record does not otherwise delineate the educational program the student received during the 2021-22 school year. Additionally, although the parent testified that the student did not make progress in the district, she did not attribute the student's lack of progress solely to being in a 12:1+(3:1) special class; she also testified that the student "was not provided with the assistive technology and augmentative communication services that she required as a non-verbal student" and that she "did not receive the frequency and duration of services that she required to benefit from the program" (Parent Ex. L ¶¶ 18-19).
A student's progress under a prior IEP is a relevant area of inquiry for purposes of determining whether an IEP has been appropriately developed, particularly if the parents express concern with respect to the student's rate of progress (see H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 Fed. App'x 64, 66-67 [2d Cir. 2013]; Adrianne D. v. Lakeland Cent. Sch. Dist., 686 F.Supp.2d 361, 368 [S.D.N.Y. 2010]; M.C. v. Rye Neck Union Free Sch. Dist., 2008 WL 4449338, *14-*16 [S.D.N.Y. Sept. 29, 2008]; see also "Guide to Quality Individualized Education Program (IEP) Development and Implementation," Office of Special Educ. Mem. [Revised Sept. 2023], available athttps://www.nysed.gov/sites/default/files/programs/special-education/guide-to-quality-iep-development-and-implementation.pdf). The fact that a student has not made progress under a particular IEP does not automatically render that IEP inappropriate, nor does the fact that an IEP offered in a subsequent school year which is the same or similar to a prior IEP render it inappropriate, provided it is based upon consideration of the student's current needs at the time the IEP is formulated (see Thompson R2–J Sch. Dist. v. Luke P., 540 F.3d 1143, 1153-54 [10th Cir.2008]; Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520, 530 [3d Cir. 1995]; S.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523, at *10 [S.D.N.Y. Dec. 8, 2011]; D.D-S., 2011 WL 3919040, at *12; J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 650 [S.D.N.Y. 2011]). Conversely, "if a student had failed to make any progress under an IEP in one year, courts have been "hard pressed" to understand how the subsequent year's IEP could be appropriate if it was simply a copy of the IEP which failed to produce any gains in a prior year (Carlisle Area Sch. Dist., 62 F.3d at 534 [noting, however, that the two IEPs at issue in the case were not identical]; N.G. v. E.L. Haynes Pub. Charter Sch., 2021 WL 3507557, at *9 [D.D.C. July 30, 2021]; James D. v. Bd. of Educ. of Aptakisic-Tripp Cmty. Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 827 [N.D. Ill. 2009]).
Accordingly, while it is understandable that the student's progress or lack thereof during the 2021-22 school year was of continuing concern to the parents during the 2023-24 school year, there is not a basis for finding that the student made no progress during the 2021-22 school year or that the program recommended in the January 2023 IEP was so similar to the student's prior program such that it would require a finding that the district did not offer the student a FAPE, even though both programs included placement of the student in a 12:1+4 special class. Instead, the analysis must be based on the information before the January 2023 CSE and consideration of the student's then current needs.
Turning to the remainder of the parents' arguments presented on appeal, the parents focus on their belief that a class with 12 students "[wa]s simply too large for [the student]" (Req. for Rev. at p. 6). Review of the hearing record shows that, at the January 2023 CSE meeting, iHope staff "expressed concern about the recommended class size being too large based on [the student's] current medical and educational needs" and that the student "require[d] a smaller class to better access individualized instruction which she has been shown to need" (Dist. Ex. 7 at p. 32). The parent then expressed that she had the same concerns and "fe[lt] the large class size would be too distracting" (id.).
The January 2023 CSE ultimately recommended the student attend a district 12:1+(3:1) special class, with the provision of a 1:1 full-time health paraprofessional (Dist. Ex. 7 at pp. 23-24). To further support the student within the recommended 12:1+(3:1) special class, the CSE recommended related services in areas of OT, PT, and speech-language therapy (id.). Specifically, the CSE recommended the student receive individual services consisting of four 60-minute sessions per week in OT, five 45-minute sessions per week in PT, and four 60-minute session per week in speech-language therapy, services totaling approximately 11 hours per week of related services (id. at p. 24).
According to the January 2023 CSE meeting minutes, iHope staff reviewed reports from their respective disciplines including academics, OT, PT, and vision education (Dist. Ex. 11 at p. 2). The CSE also had information from the May 2022 iHope intake evaluation, which stated that due to the student’s physical, medical, learning, and communication needs the student required an intensive educational environment, identified as a 6:1+1 special class, with a high adult to child ratio (Dist. Ex. 13 at p. 4). Further, the May 2022 iHope intake evaluation stated, the student required the support of a dedicated 1:1 paraprofessional to meet her daily care needs and that she "benefited from intensive therapy and small group learning" (id.).
According to the IEP, the CSE considered recommending the student attend a 6:1+1, 8:1+1 or 12:1+1 special class but rejected those programs as not meeting the student's needs, although the IEP did not include the CSE's rationale for believing that to be the case (Dist. Ex. 7 at p. 32).
The parent testified that the student required a modified environment, reducing all distraction (Parent Ex. L ¶ 15). She also reported that the student was distracted and it was difficult for her to attend to tasks in a large group setting such as a 12:1+4 (id. ¶ 36). The parent opined it was necessary for the student to be in a smaller class size so that she could remain engaged in tasks (id. ¶ 37). The director of iHope explained her reasoning as to why class size was an important factor for the student, testifying that the student "require[d] a small class size because she needs an environment that can be easily controlled with minimal distractions" (Tr. p. 31).[9] According to the iHope director, "the more people are in a classroom, the more difficult it is to control that environment and limit the number of distractions," noting that for the student to be able to focus on instruction, it was important to reduce auditory and visual distractions (id.).
Review of the January 2023 IEP shows that the description of the student was consistent with the information presented by iHope in that, consistent with the iHope assessment and progress information, the IEP noted that the student required an intensive educational environment of a classroom, with a high adult to child ratio (Dist. Ex. 7 at p. 8). The IEP stated that the student "require[d] a high degree of individualized attention to meet daily care needs and therefore require[d] the support of a dedicated 1:1 paraprofessional" (id.). Further, the IEP noted that the student "require[d] a small, structured class within a specialized school setting along with various related services to make appropriate progress towards individualized goals" (id.).
As noted above, when developing the student's January 2023 IEP the CSE had the May 2022 iHope intake evaluation and October 2022 iHope quarterly progress report available for consideration (Dist. Exs. 7; 12; 13). Although the evaluators who contributed to the May 2022 iHope intake evaluation recommended the student attend a 6:1+1 special class due to her "physical, medical, learning, and communication needs" they did not speak to the student’s distractibility (Dist. Ex. 13). Notably, the student was asleep at the time of the observation for the intake evaluation and the report is based solely on the parent's reporting (id.). Report of the intake evaluation indicated that, per parent report, the student was sensitive to loud noises (id. at p. 2). The report also noted that no hearing concerns were discussed and hearing services were not recommended for the student (id.). The student's vision teacher noted the student needed a quiet, controlled environment to use her vision best, which was repeated in the IEP (Dist. Exs. 7 at p. 6; 12 at p. 3).
In addressing the student's distractibility, the January 2023 IEP included management needs (Dist. Ex. 7 at p. 7). 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]). State guidance explicitly includes limited visual and auditory distractions, as an environmental modification that should be addressed as part of a student's management needs ("Guide to Quality Individualized Education Program [IEP] Development and Implementation," at p. 20, Office of Special Educ. [Feb. 2010, Revised Sept. 2023], available athttps://www.nysed.gov/sites/default/files/programs/special-education/guide-to-quality-iep-development-and-implementation.pdf).
The management needs section of the 2023 IEP included recommendations for sensory supports throughout the academic day in all therapy and classroom settings, such as touch prompts and reduced auditory distractions, as well as the support of preferential seating, extended time, and frequent breaks (Dist. Ex. 7 at p. 7). As related to strategies to support the student, the CSE recommended that, during instruction, the student be provided partner assisted scanning and presented picture symbols to support language instruction, as well as the use of augmentative and alternative communication devices and switches (id.). The management needs section of the IEP also included the need for access to device mounts throughout the day in all therapy and classroom settings (id.). Further, the CSE, in the area of health management, noted the student's need for 1:1 paraprofessional services, and further noted that the student had a seizure disorder that required close monitoring to prevent injury and aspiration (id. at p. 8). Additional supports included close monitoring to prevent injury, as the student had vision issues and, at the time, the student received nutrition, hydration, and medication by mouth requiring close monitoring to prevent aspiration and manage weight and nutritional intake (id.).
Based on the above, while the parents' preference for the 6:1+1 special class ratio that the student was in at iHope during the 2023-24 school year is understandable, the hearing record shows that the 12:1+(3:1) special class recommended by the January 2023 CSE was reasonably calculated to address the student's physical, medical, learning, and communication needs for the 2023-24 school year with the additional supports and management needs. As indicated above, the January 2023 CSE included 1:1 paraprofessional services, in addition to individual support in related services for 11 hours per week, as well as management needs to support sensory needs, reduce auditory distractions, and provide preferential seating. Considering the above information as related to the student's needs and the recommended program, there is insufficient basis to disturb the IHO's decision that the 12:1+(3:1) class size was appropriate.
C. Timeliness of School Assignment
Next, the parents assert that the district did not prove that it provided them with notice of the school site the student was assigned to attend for the 2023-24 school year and, in conjunction with that argument, asserts that the IHO erred by determining the parent lacked credibility in her testimony as to whether the district sent the parent a school location letter.
Although not explicitly stated in federal or State regulation, implicit in a district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP (see T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 [S.D.N.Y. Mar. 30, 2016] [noting that "a parent must necessarily receive some form of notice of the school placement by the start of the school year"]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [finding that a district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year]). While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless follows that it must be shared with the parent before the student's IEP may be implemented. This analysis also fits with the competing notions that, while a district's assignment of a student to a particular school site is an administrative decision which must be made in conformance with the CSE's educational placement recommendation (see M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244-45 [2d Cir. 2015]), there is district court authority indicating that a parent has a right to obtain information about an assigned public school site (see H.L. v. New York City Dep't of Educ., 2019 WL 181307, at *9 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 2015 WL 5564446, at *11-*18 [S.D.N.Y. Sept. 21, 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 2014 WL 2207997, at *14-*16 [S.D.N.Y. May 27, 2014] [holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it]).
Review of the hearing record also shows that the parent signed a contract with iHope for the student's attendance for the 2023-24 school year on June 9, 2023 and, in her testimony, the parent explained that one of the reasons she decided to enroll the student at iHope was because she did not receive a school placement from the district (Tr. p. 48; Parent Ex. C at p. 5). The hearing record includes a June 18, 2023 prior written notice and school location letter, in which the district notified the parent of the program recommended in the January 2023 IEP and the school the student was assigned to attend for the 2023-24 school year, where the recommended program would have been implemented (Dist. Exs. 8; 9). In a letter, dated June 20, 2023, the parents, through their attorney, indicated that the student did not have a school placement to implement her special education program for the 2023-24 school year (Parent Ex. B at p. 2).
The IHO found that the parent's testimony at the hearing was inconsistent as to whether the parent received the school location letter (IHO Decision at p. 6). Generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076). Upon review of the hearing record, the parent testified that while she did not remember receiving the school location letter, she remembered receiving the recommendation for the 12:1+4 placement (Tr. p. 39). Moreover, the parent testified: ". . . I think I did receive a call from a school" but was unsure if "it was for that year" (id.). When pressed to clarify, the parent only acknowledged a phone call with a public school but no further detail was solicited by the district's attorney, nor was any clarification provided by way of redirect (Tr. pp. 40-42, 44-50). Overall, the hearing record does not provide a basis for overturning the IHO's credibility finding on this point.
Finally, the hearing record demonstrates that the student had already attended the same school recommended for the 2023-24 school year, during the 2021-22 school year (see Dist. Exs. 7 at p. 1, 9 at p. 1; 13 at p. 1). Accordingly, while the parent alleges she did not receive formal notification, despite its inclusion in the record, the alleged failure by district to formally notify the parents of the brick and mortar location did not impede the student's right to a FAPE, hinder the parents' opportunity to participate in the decision-making process, or otherwise deprive the student of educational benefits as the parent was aware of the recommended program, the student had previously attended the same school to which the student was assigned to attend, and, presumably, the parent was aware of how to enroll the student at the school if she had so desired (see 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5 [j][4][ii]).
VII. Conclusion
Based on the foregoing, I find that the evidence supports the IHO's finding that the January 2023 IEP was reasonably calculated to enable the student to receive educational benefits in light of her circumstances and that the IHO did not err in rejecting the parents' allegations regarding the district's failure to notify her of the school to which the student was assigned (Endrew F., 137 S. Ct. at 1001; Gagliardo, 489 F.3d at 112; Frank G. v. Board of Educ., 459 F.3d 356, 364-65 [2d Cir. 2006]). Having found that the district offered the student a FAPE, I need not reach the issues of whether iHope was appropriate for the student or whether equitable considerations supported the parents' request for relief and the necessary inquiry is at an end (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).
I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations above.
THE APPEAL IS DISMISSED.
Footnotes
[1] The revised school location letter dated June 18, 2023 indicated that per a June 2023 CSE meeting, the student's program for the 2023-24 school year would continue to be provided at the same school the student attended during the 2021-22 school year (see Dist. Exs. 9 at p. 1; 13 at p. 1).
[2] The hearing record includes evaluative information before the CSE as follows: the May 2022 iHope intake evaluation, the August 2022 medication administration form, and the October 2022 iHope quarterly progress report (Dist. Exs. 12-14). Entered with the August 2022 medication administration form, the record included a September 2022 health examination form and vaccination schedule completed by the student's physician; although attached, this form was not recorded in the June 2023 prior written notice (Dist. Ex. 14 at pp. 1-2).
[3] Counsel for the parents is cautioned that pleadings filed with the Office of State Review must comply with the form requirements, which provide that a request for review shall not exceed 10 pages in length, text shall be double-spaced with block quotations and footnotes permitted to be single-spaced, and text shall be a minimum of 12-point type in Times New Roman Font with footnotes a minimum of 10-point type (8 NYCRR 279.8[a], [b]). In addition, "[c]ompacted or other compressed printing features are prohibited" and "[e]xtensive footnotes may not be used to circumvent page limitations" (* NYCRR 279.[a][2], [b]). The request for review appears to contain both compressed or contracted printing features such as a compressed caption and signature line, as well as what can be considered an extensive use of footnotes, such that the request for review could be considered as in contravention of the page limitation. While the term "extensive" is not defined in State regulation, the request for review's inclusion of 15 footnotes, some of which were in excess of 10 lines each, and which, if incorporated into the document, would clearly exceed the page limitation set forth in State regulation, constitutes an extensive use of footnotes (see Application of a Student with a Disability, Appeal No. 21-181 [finding 52 footnotes in a 30-page memorandum of law to be extensive]). The parent is cautioned that future noncompliance with the practice regulations could result in outright the rejection of a pleading.
[4] The district filed an answer and "cross-appeal" seeking affirmance of the IHO's decision. Although the district served and filed a document labeled "Verified Answer and Cross-Appeal," it is not clear that it is a proper cross-appeal as a review of the document as a whole shows that it does not identify precise rulings which were adverse to the district (see 8 NYCRR 200.5[k][1]; 279.8[c][2]). Accordingly, the district's pleading will be considered as a verified answer and not a cross-appeal.
[5] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[6] The parents raise this issue in the heading of one of their issues raised; however, the entirety of the parents' argument is raised only in a footnote (Req. for Rev. at p. 2). An argument raised only in a footnote, is generally considered waived at this stage of the proceedings (see, United States v. Quinones, 317 F.3d 86, 90 [2d Cir. 2003] [holding that raising an argument only in a footnote is insufficient to preserve an issue for review on appeal], citing United States v. Restrepo, 986 F.2d 1462, 1463 [2d Cir. 1993]; see also R.R. v. Scarsdale Union Free Sch. Dist., 366 Fed. App'x 239, 241-42 [2d Cir. Feb. 18, 2010]; 8 NYCRR 279.8[c]; see generallyApplication of a Student with a Disability, Appeal No. 18-119). In this matter, the district responded in an answer to the parent's argument as raised in the footnote and, although this issue will be addressed in this matter, counsel for the parents is again cautioned that the use of extensive footnotes is prohibited by the practice regulations and, in the future, any issues raised solely in a footnote may be considered abandoned at this stage of the proceeding.
[7] Examples of the term assistive technology service include:
(1) the evaluation of the needs of a student with a disability, including a functional evaluation of the student in the student's customary environment;
(2) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by students with disabilities;
(3) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
(4) coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;
(5) training or technical assistance for a student with a disability or, if appropriate, that student's family; and
(6) training or other technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of that student
(8 NYCRR 200.1[f]).
[8] With respect to the parents' allegations regarding the burden of proof, under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer v. Weast, 546 U.S. 49, 59-62 [2005] [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]). However, under State law, the burden of proof has been placed 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 Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85). Nevertheless, which party bore the burden of persuasion in the impartial hearing becomes relevant only if the case is one of those "very few" in which the evidence is equipoise (Schaffer, 546 U.S. at 58; Reyes v. New York City Dep't of Educ., 760 F.3d 211, 219 [2d Cir. 2014]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 225 n.3 [2d Cir. 2012]; T.B. v. Haverstraw-Stony Point Cent. Sch. Dist., 933 F. Supp. 2d 554, 565 n.6 [S.D.N.Y. 2013]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *5 [S.D.N.Y. Mar. 19, 2013]; see F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 4 [2d Cir. Jan. 8, 2014]).
[9] Specific to the class size and adult support, the director of iHope testified that the student was in a 6:1+1 special class at iHope, but then testified that each student at iHope had their own paraprofessional, which resulted in a 1:1 staff-to-student ratio (Tr. pp. 25-26). However, the reports presented to the district by iHope referred only to the recommendation for a 6:1+1 special class (Dist. Ex. 5 at p. 21; 13 at pp. 2, 4). Accordingly, it appears that the student's class at iHope was presented to the district as a 6:1+1 special class at the time of the January 2023 CSE meeting. In addition, the iHope director acknowledged that the district would have provided the student with the support of 1:1 health paraprofessional services in addition to the 12:1+(3:1) special class (Tr. p. 26) and it is worth noting that the district's 12:1+(3:1) special class could also have included other students who were recommended for additional individual services; however, while individually assigned supplementary support personnel for other students would increase the total number of adults in a classroom, they are not a part of the recommended classroom ratio as they are not assigned specifically to support the student. As noted by the IHO, in the 12:1+(3:1) special class the student would have had the support of one staff member for every three students plus the classroom teacher, as well as the support of the recommended individual paraprofessional services. In a 6:1+1 special class, the staff to student ratio would have been one staff member, including the classroom teacher, for every three students. Accordingly, the recommended 12:1+(3:1) special class ratio is considered the most supportive classroom environment contemplated by State regulation (Navarro Carrillo, 2023 WL 3162127, at *3). Recently, the New York Court of Appeals, in reviewing the regulatory class size amendments, has noted that "nothing in the amendments' history indicates that the agency stopped considering the 12:1+(3:1) ratio as the regulation's most supportive alternative" (Cruz v. Banks, 2026 WL 436354, at *5 [NY Feb. 17, 2026]). The Court of Appeals answered a certified question of State law from the Second Circuit and determined that 8 NYCRR 200.6(h)(4) provides alternative class sized and "the regulation requires a CSE to exercise its knowledge and expertise to select the listed alternative that would best serve a student's individual needs" (id.).