Application of a Student with a Disability

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-234

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 Emily A. McNamara, Esq.

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) fund the costs of their son's tuition at The Caedmon School (Caedmon), as well as the costs of their son's privately obtained services, for the 2024-25 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

Review of the student's educational history shows that he has received a diagnosis of autism spectrum disorder (ASD) at approximately three years of age and he began receiving special education with the support of special education itinerant teacher (SEIT) services while in preschool (Parent Ex. D at pp. 4, 5, 14). The student then began attending Caedmon for kindergarten during the 2022-23 school year, and has remained enrolled there at all times relevant to this proceeding (id.; see Parent Ex. A). 

Turning to the school year at issue, the parents digitally executed an enrollment contract with Caedmon on January 31, 2024, for the student's enrollment for the 2024-25 school year, with a listed tuition of $62,985 (Parent Ex. F at pp. 1, 6).

By prior written notice dated February 27, 2024, the district informed the parents that it was proposing a reevaluation of the student in order to determine if he continued to be eligible for special education services, and, if so, what services the student needed to meet his educational needs (Dist. Ex. 2 at p. 1).  Conversely, it was reflected that, after having reviewed the student's existing assessments, that no additional assessments were needed, and the district indicated that it would be reviewing the student's "[p]rior IEP/IESP, progress reports, teacher reports[,] and evaluation reports" (id.). It was also reflected that a CSE meeting was last held on October 26, 2022 for the student (id.).

By email dated March 1, 2024, the parents forwarded copies of the following evaluative information in anticipation of a March 5, 2024 CSE meeting: a Pediatric Assessment Learning & Support (PALS) report from a neuropsychological evaluation conducted over several dates in 2023; a December 2023 occupational therapy (OT) progress report; a January 2024 speech-language progress report; an applied behavior analysis (ABA) assessment conducted by Up, Up, and Away (UUA) with goals through July 20, 2024; and the student's first grade first semester progress report from Caedmon, dated December 22, 2023 (Parent Ex. D at pp. 1, 4-72).^[1] 

As part of the neuropsychological evaluation conducted in April, May, June, and September 2023, the student was reported as experiencing difficulties in academics, communication, socialization, attention, adaptive, and social/emotional skills, as well as behavior regulation (Parent Ex. D at p. 14).  Additionally, the report noted that the student had received diagnoses of ASD, an attention deficit hyperactivity disorder (ADHD) combined type, and an unspecified anxiety disorder (id.).  The report recommended that the student be provided access "to the general education curriculum and typical peers" but he also required "one-to-one behavioral support throughout the day" (id. at pp. 15-16).

A CSE convened on March 5, 2024, and, after finding the student eligible for special education and related services as a student with autism, developed an IEP with a projected implementation date of March 25, 2024 (Dist. Ex. 1 at pp. 1, 29).^[2]  The March 2024 CSE recommended that the student receive integrated co-teaching (ICT) services for his core subjects, and that he receive one 30-minute session of group counseling services per week, two 30-minute sessions of individual OT per week, and two 30-minute sessions per week of individual speech-language therapy per week (id. at pp. 22-23, 29).  It was also recommended that the parents receive one 60-minute session per month of parent counseling and training (id. at p. 23). 

By email dated April 17, 2024, the parents reiterated "some of the concerns [they] shared at the [March 2024 CSE] meeting," including that the student "require[d] 1:1 behavioral support throughout the day to address his attention, emotional, behavioral self-regulation, language, social skills, adaptive skills, and academic deficits" (Parent Ex. E at p. 1; see Dist. Ex. 1 at p. 29).  The parents alleged that "[e]veryone agreed that [the student] could not accomplish the academic, social, and behavioral progress that he . . . made without the 1:1 support that [they] were currently providing" (Parent Ex. E at p. 2). The parents indicated that they were concerned that the recommended class size of up to 28 students would be too large for the student, who was currently attending a class size of 15, especially without the addition of 1:1 support or ABA (id.).  The parents indicated that they were concerned that the recommendations of the March 2024 CSE were not appropriate (id.). The parents also alleged that they had not received a school location recommendation yet, and that, once received, they would reach out to the school "to find out how they would work to meet [the student's] needs (id.). 

In a letter dated June 14, 2024, the parents advised the district of several concerns regarding the March 2024 IEP and alleged that they had not received a response to their previous correspondence from April 17, 2024 (Parent Ex. C at p. 1).  The parents largely reiterated the same matters identified in the April 17, 2024 email discussed above (compare Parent Exs. C at pp. 1-2, with E at pp. 1-2). The parents also indicated that, "in the ongoing absence of an appropriate and timely program and placement," that the student would continue to attend Caedmon, and that the parents would seek reimbursement or funding for tuition at Caedmon, the cost "of full time SETSS/SEIT in school," the cost of transportation to and from Caedmon, "[u]p to 12 hours per week of after school 1:1 ABA [t]eaching," up to three hours per week of speech language therapy, up to three hours per week of OT, "2 x 30 minutes per week of [s]chool [c]ounseling services in a group of two," and "1 x 30 minutes per month of [p]arent [c]ounseling" (Parent Ex. C at pp. 2-3).  The parents' letter was transmitted to the district via email on June 14, 2024 (id. at p. 4).

A. Due Process Complaint Notice

In an amended due process complaint notice dated August 27, 2024, the parents, through counsel, alleged that the district failed to develop an appropriate IEP "and/or recommend a school placement" for the student, and asked that the district "'fast-track[]' [the matter] for settlement" (Parent Ex. A at p. 1).^{[3], [4]}  The parents alleged that the district failed to provide any program or placement recommendations for the 12-month 2024-25 school year, and that the student required a 12-month school year (id. at pp. 2-3). The parents also alleged that the district failed to procedurally and substantively offer the student a FAPE for the 2024-25 school year (id. at p. 3). The parents alleged, among other things, that the March 2024 IEP was calculated to produce regression and work against independence and self-sufficiency; the district failed to provide the student and the parents with any prior written notice; the CSE was not duly constituted; the district failed to develop an appropriate functional behavioral assessment (FBA); the district failed to develop an appropriate behavioral intervention plan (BIP); the district failed to gather sufficient information prior to the CSE meeting; the district failed to sufficiently individualize the IEP; the IEP contained "misinformation, errors, omissions and/or other inaccuracies;" the district failed to offer an appropriate class size and/or appropriate instructional support; and that the district failed to offer appropriate related services and supports (id. at pp. 3-8). The parents also alleged that the district failed to provide minutes of the CSE meeting; failed to reconvene a CSE meeting; failed to meaningfully communicate with the parents and the student's providers; and failed to "make provision for appropriate parent counseling and training" (id. at pp. 6-7). They further alleged that the annual goals in the student's IEP were not appropriate; that the district "failed to meaningfully discuss and consider methodology implications"; that the district failed to offer a timely placement recommendation; that the district failed to recommend any special education transportation; that the district "fail[ed] to provide adequate training and supervision of its . . . staff;" and that the district and its employees "intentionally or negligently concealed or otherwise failed to disclose information it had a duty to disclose" (id. at pp. 8-11).

As relief, the parents sought "reimbursement and/or funding" for the costs of the student's tuition at Caedmon, as well as the costs of a "full time SETSS/SEIT in school," transportation to and from Caedmon, "up to" 12 hours per week of after school 1:1 ABA instruction, "up to" three hours per week of speech-language therapy, "up to" three hours per week of OT, "2 x 30 minutes per week" of school counseling services in a group of two, and "1 x 30 minutes per month of" parent counseling and training (Paren Ex. A at p. 11).  The parents also indicated that they would "seek a compensatory education claim for any and all educational services" that the student was entitled to and the district failed to provide, "including his pendency entitlements" (id.).

B. Impartial Hearing Officer Decision

An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed on July 2, 2024 (IHO Decision at p. 3). After a prehearing conference on August 1, 2024, and three conferences between August 28, 2024 and November 6, 2024, the parties appeared before the IHO for a hearing on December 6, 2024 and January 1, 2025 (Aug. 1, 2024 Tr. pp. 1-4; Aug. 28, 2024 Tr. pp. 5-9; Oct. 10, 2024 Tr. pp. 10-15; Nov. 6, 2024 Tr. pp. 1-8; Dec. 6, 2024 Tr. pp. 9-102; Jan. 31, 2025 Tr. pp. 118-211).^[5]

In the midst of the proceedings, on September 23, 2024, the district agreed to the parents' request regarding the student's placement during the pendency of the proceeding (see Pendency Implementation Form; see also Oct. 10, 2024 Tr. p. 12). According to that agreement, the student's pendency placement was based on an unappealed IHO decision dated July 2, 2024, which provided for the student's attendance at Caedmon for the 12-month school year, and for the student to receive 12 hours per week of after-school 1:1 ABA services, up to three hours per week of speech-language therapy, up to three hours per week of OT, 1:1 ABA  "full time in school," and for the parents to receive 30-minutes per month of parent counseling (Pendency Implementation Form; see SRO Ex. 1).^[6]

In a decision dated March 12, 2025, the IHO recited the parties' positions, made detailed factual findings, outlined applicable legal standards, and determined that the district failed to offer the student a FAPE, but found that the parents failed to meet their burden of proving that the unilaterally obtained programming at Caedmon was appropriate to meet the student's needs (IHO Decision at pp. 5-36).  With respect to the district's obligation to offer the student a FAPE, the IHO found that it was undisputed that the district failed to offer a school location to implement the student's March 2024 IEP for the 2024-25 school year (IHO Decision at p. 32). The IHO then went on to find that the March 2024 IEP was appropriate and the recommendation for ICT services was reasonably calculated to enable the student to make appropriate progress in his least restrictive environment (LRE) (id. at pp. 32-34). The IHO determined that the parents raised a number of contentions regarding the district's potential offer of a FAPE, which the IHO found were "not certified" as issues for the impartial hearing, but addressed anyway, finding that they were without merit (id.). 

The IHO next addressed the appropriateness of the unilateral placement and found that the parents did not meet their burden because, even though the supplemental OT and speech-language therapy may have been appropriate if provided consistently (which the IHO called into question), the student's nonpublic school did not offer specialized instruction, and the "other main component" of the unilateral placement went beyond what was required for the provision of a FAPE (IHO Decision at p. 34).  In reaching this determination, the IHO found the parents' witnesses, including the parent, the student's teacher, and the student's board certified behavior analyst (BCBA) were not fully credible, as their testimony was largely self-serving and often contradictory (id.). The IHO also found that the witnesses' direct testimony by affidavit, which the IHO found were likely written by counsel, were often contradicted by the witnesses' testimony at the impartial hearing (id.).  The IHO also found that there were large gaps in the student's written schedule that were not clarified, and there was "insufficient evidence of exactly how and when (and how many hours) of ABA services" were provided to the student (id.). The IHO found that the invoices in the hearing record did not corroborate the provision of related services to the student prior to October or after December, nor was it clear whether the student received ABA services during the summer or in September (id.).  The IHO also found that there were questions as to what the ABA provider did for during science, lunch, recess, or music classes, as it was unclear if the ABA provider was actively participating and there was no testimony by the student's school-based ABA providers or session notes (id. at p. 35). 

The IHO further found that the evidence did not establish that the program was sufficiently individualized or specially designed to meet the student's needs (IHO Decision at p. 35).  The IHO found that Caedmon was not a special education program, much less a program that provided specially designed instruction, as there was testimony that all students in a given class were educated in the same manner, without any adaptation (id.).  The IHO found that "[s]imply allowing other providers to be present" did not remedy this deficiency (id.). According to the IHO, the program failed to tailor itself to the student's particular needs (id.).  The IHO also found that, although the parents claimed that the student's public school offering failed to include assistive technology, a sensory gym, or specialized transportation, the parent's unilaterally obtained program did not include them either (id.).  The IHO also found that the unilateral program failed to include any counseling or suitable service to address the student's anxiety (id.). The IHO noted that the student's unilateral program "did not remedy any significant deficiency of the public program, as there were not any to remedy" (id.).  The IHO next turned to the student's progress at the unilateral placement and found that there was inconsistent evidence of progress in the hearing record, as there was no progress report from school year at issue, and, while there was some subjective testimony of progress, there was also conflicting testimony (id.). Finally, the IHO found that the services delivered outside of the  nonpublic school were in excess of what was required for the provision of a FAPE (id. at pp. 35-36). The IHO found that the student did not qualify for 12-month services because there was only some speculative testimony regarding potential regression, there was no evidence to conclude that the student required after-school ABA services, and the student did not require 1:1 ABA support during the entirety of the school day (id. at p. 36).  The IHO noted that the student's private evaluators found that the student's behaviors were not severe enough to warrant a BIP, and that, while 1:1 ABA services may have been helpful for the student to maximize his potential, these were not necessary for the student to obtain an educational benefit, and were therefore excessive (id.). 

With respect to equitable considerations, the IHO found, in the alternative, that she would not have ordered funding for any ABA services other than parent counseling, as they went beyond what was required for the provision of a FAPE (IHO Decision at p. 36).  The IHO also found that she would have ordered reimbursement for the student's nonpublic school tuition, as well as reimbursement for private related services in which invoices and proofs of payment were provided, as there was no future financial obligation in the hearing record, and those awards would be limited to a standard 36-week school year (id.).  The IHO also clarified that she would have only ordered funding for any amount not paid by the student's medical insurance, after receipt of relevant insurance records (id.).

IV. Appeal for State-Level Review

The parents appeal, asserting, among other things, that the IHO erred in finding that the March 2024 IEP was reasonably calculated to confer an educational benefit to the student for the 2024-25 school year. The parents note that the district conceded that it failed to offer the student a FAPE for the 2024-25 school year, did not call any witnesses to explain how the challenged IEP was reasonably calculated, and did not provide documentary evidence to explain what evaluative information was used in developing the IEP. The parents contend that the IHO erred in extrapolating conclusions about the appropriateness of the March 2024 IEP, and then later using those determinations to find the student's unilateral placement inappropriate. The parents next assert that the IHO incorrectly applied an elevated burden on the parents to prove the appropriateness of the unilateral placement, and then further erred in finding that the parents did not meet their burden of establishing the appropriateness of the unilateral placement. According to the parents, the IHO "honed in on facets" of the student's unilateral program, rather than looking at the program as a whole.  The parents contend that they did not need to show that the unilateral program was perfect or show that the unilateral placement reflected the district's program. The parents contend that the student's unilateral program at Caedmon combined with the private ABA services, OT, and speech-language therapy was reasonably calculated to enable the student to make meaningful progress.  The parents assert the IHO erred in finding that the unilaterally obtained program did not remedy the alleged deficiencies in the district's recommended programming, noting the program included a small classroom size and 1:1 support which the parents asserted were deficient in the district's recommended program.  The parents also contend that the IHO erred in critiquing Caedmon for not being a special education program and for not offering in-house related services and assert this was not required, while noting collaboration between the nonpublic school and UUA.  The parents argue that while Caedmon did not provide individual goals for the student, individualized programming came from the implementation of the treatment plan with the student's ABA providers.  The parents argue that the IHO erred in finding the hearing record was inconsistent regarding the student's progress as the IHO relied on one line from a speech-language progress report, and further argue that proof of progress was not required in order to establish the appropriateness of the unilateral placement. According to the parents, the IHO mischaracterized the student's interfering behaviors by failing to note that he needed consistent redirection, and the parents further note that a neuropsychological evaluation reflected that the student's struggles with inattention and regulation interfered with his access to the curriculum. According to the parents, the IHO erred in disregarding the recommendation included in the neuropsychological evaluation report for a small class with specialized 1:1 support as the student's LRE. The parents further contend that the IHO erred in finding that the student's after-school ABA services went beyond what was required for the provision of a FAPE, as the testimony showed that the after-school ABA instruction was for the purpose for supporting the student's behavioral regulation and to provide additional time to work on school assignments. 

With regard to the IHO's findings related to equitable considerations, the parents contend that the IHO erred in determining that they did not have an obligation to pay for the student's after-school services.  According to the parents, while they did not have contracts with the student's after school ABA, speech-language therapy, and OT providers, the IHO failed to consider that the student's private programming was being funded through pendency.  The parents further allege that the IHO made no indication that she would accept additional disclosures that were not related to the parents' transportation request, but then criticized the parents for failing to submit school progress reports and additional invoices that were created after the impartial hearing disclosure deadline.  The parents also offer additional evidence for consideration consisting of the July 2024 IHO decision regarding the 2022-23 and 2023-24 school years, provider invoices and payment information, and the student's second-grade report card produced by Caedmon.  For relief, the parents ask that the IHO's decision be reversed and that they be awarded "the reimbursement relief being requested for [the student's] unilateral placement and program," or that in the alternative, the matter be remanded.

 In an answer, the district initially indicates that it does not dispute the IHO's finding that the district failed to establish that a FAPE was offered to the student for the 2024-25 school year. However, the district contends that the IHO properly found that the March 2024 IEP contained appropriate recommendations which were relevant to the analysis as to whether the student's unilateral placement was appropriate.^[7]  The district further argues that the IHO correctly found that the parents failed to establish that the unilateral placement was appropriate. The district additionally contends that any relief awarded to the parents should be limited to costs actually accrued, and expenses paid by medical insurance should not be included.  Finally, the district generally contends that any arguments raised in the parents' memorandum of law, but not in their request for review, were not properly raised on appeal.^[8]

V. Applicable Standards

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

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

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

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).^[9]

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. Compliance with Form – Request for Review

Before turning to the merits of the parent's appeal, it is necessary to examine the sufficiency of the request for review.

State regulation provides that a request for review "shall clearly specify the reasons for challenging the [IHO's] decision, identify the findings, conclusions, and orders to which exceptions are taken, or the failure or refusal to make a finding, and shall indicate what relief should be granted by the [SRO] to the petitioner" (8 NYCRR 279.4[a]). Additionally, the request for review "must conform to the form requirements in section 279.8 of this Part" (id.).  Section 279.8 requires that a request for review shall set forth:

(1) the specific relief sought in the underlying action or proceeding;

(2) a clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately, and identifying the precise rulings, failures to rule, or refusals to rule presented for review; and

(3) citations to the record on appeal, and identification of the relevant page number(s) in the hearing decision, hearing transcript, exhibit number or letter and, if the exhibit consists of multiple pages, the exhibit page number.

(8 NYCRR 279.8[c]).

Here, the request for review fails to comply with the form requirements of Part 279 of State regulations.  In particular, the practice regulations require that each issue [be] numbered and set forth separately . . . identifying the precise rulings, failures to rule, or refusals to rule presented for review" (NYCRR 279.8 [c][2] [emphasis added]).  In this case the parents' request for review simply numbers every paragraph, regardless of whether it contains statements of fact, statements of law, or allegations of IHO error, without separately numbering the issues which the parents are advancing on appeal. While paragraph numbering is not prohibited, clear enumeration and identification of each issue is required, and counsel for the parent has failed to do so.^[10]

In general, the failure to comply with the practice requirements of Part 279 of the State regulations may result in the rejection of the submitted documents or a determination excluding issues from the scope of review on appeal (8 NYCRR 279.8[a]-[b]; see Davis v. Carranza, 2021 WL 964820, at *12 [S.D.N.Y. Mar. 15, 2021] [upholding an SRO's conclusions that several claims had been abandoned by the petitioner]; M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *23 [S.D.N.Y. Sept. 28, 2018] [upholding dismissal of allegations set forth in an appeal to an SRO for "failure to identify the precise rulings presented for review and [failure] to cite to the pertinent portions of the record on appeal, as required in order to raise an issue" for review on appeal]; T.W. v. Spencerport Cent. Sch. Dist., 891 F. Supp. 2d 438, 440-41 [W.D.N.Y. 2012] [upholding dismissal of a petition for review that was untimely and exceeded page limitations]).

While the parents have failed to comply with practice requirements under Part 279 of State regulations with respect to the formatting of the contentions in the request for review, I decline to exercise my discretion to reject the pleading or make an otherwise adverse finding under these grounds. However, parents' counsel is cautioned in the future to ensure that all submitted pleadings conform with State regulations governing practice before the Office of State Review. Additionally, while I decline to make an adverse finding with respect to this specific error in the request for review, for other reasons, as will be discussed below, some of the parents' arguments will nonetheless be rejected.

2. Additional Evidence/Record Issues

The parents have offered four sets of documents for consideration as additional evidence.  Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; Bautista v. Banks, 2025 WL 861223, at *5-*6 [S.D.N.Y. Mar. 19, 2025], aff'd in part, vacated in part, remanded, 2026 WL 554579 [2d Cir. Feb. 27, 2026] [declining to accept evidence that could have been offered in the first instance during the administrative hearing without adequate justification] Landsman v. Banks, 2024 WL 3605970, at *3 [S.D.N.Y. July 31, 2024] [finding a plaintiff's "inexplicable failure to submit this evidence during the IHO hearing barred her from taking another bite at the apple"]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]).

Here, the parents have offered: (1) a July 2, 2024 IHO decision from a prior matter involving the student; (2) copies of invoices from the student's private providers and checks made out to those providers; (3) spreadsheets created by an unknown author that allege to outline costs and payments for the student's private ABA, OT, and speech-language therapy providers; and (4) a progress report from Caedmon, dated December 20, 2024.  With respect to the July 2, 2024 IHO decision, as discussed above, this decision served as the actual basis for the pendency agreement between the parties, and it is not found elsewhere in the hearing record.  Therefore, in my discretion, this document will be accepted as additional evidence and referred to as "SRO exhibit 1," or "SRO Ex. 1 (see Pendency Implementation Form).

With respect to the second proposed additional exhibit, the invoices of the student's private providers, I note that many of the invoices indicate that they were produced prior to the date of the impartial merits hearing on December 6, 2024.  The parents, in offering these invoices, asserted in a conclusory fashion that the invoices "were not available at the time of [the impartial hearing]," however it is not clear how that could have been the case, as many of the invoices predated the impartial hearing. Additionally, the parents' proposed exhibit included a number of checks paid to UUA, at least three of which were dated prior to the December 6, 2024 hearing.  In any event, neither the invoices nor the checks are necessary to render a decision in this matter, so this proposed additional exhibit will not be accepted as additional evidence.

Regarding the third proposed additional exhibit, the spreadsheets, it is unclear who authored the information in the spreadsheets, and it is unclear why this information could not have been offered at the time of the impartial hearing.  In any event, the document is unnecessary to render a decision, and therefore will not be accepted as additional evidence. 

With respect to the fourth proposed additional exhibit, the December 20, 2024 Caedmon progress report, as the parent alleges, this document, which post-dates the initial appearance for the impartial merits hearing on December 6, 2024, was "not available to [the parents] at the time of the [merits] hearing's disclosure deadline."  While the parent has alleged that "[a]t the conclusion of the hearing, the IHO made no indication that she would accept any additional disclosures that were not related to the [parents'] transportation request," I note that, prior to the "conclusion of the hearing," the parents nonetheless were given the opportunity to offer an exhibit that included October and November invoices (Exhibit Y) on January 31, 2025, in the middle of the merits hearing, and that this document was admitted into the hearing record, despite being past the "disclosure deadline."  There is no indication in the hearing record that the parents made an attempt to offer the December 2024 progress report into evidence at any time during the proceedings.  Therefore, as this document could have been offered at the time of the hearing, and the IHO would have then had an opportunity to rule on its submission, potentially even admitting into evidence during the time of the impartial hearing, I decline to consider this proposed additional evidence for the first time on appeal.

3. Scope of Review

Turning to the substantive allegations raised in their request for review, I note that, while the parents object to the IHO's findings about the appropriateness of the student's March 2024 IEP, the IHO ultimately found that the district did not meet its burden to establish that it offered the student a FAPE for the 2024-25 school year.  Thus, the parents were not aggrieved by the IHO's findings in this regard, and their contentions regarding the appropriateness of the March 2024 IEP will not be considered.^[11] Additionally, the district, as the aggrieved party on this point, has not appealed from the IHO's determination that the district failed to offer the student a FAPE for the 2024-25 school year.  Accordingly, this determination 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]).

            Further, I note that the scope of the parents' appeal is limited to those issues explicitly raised within the request for review.  Factually, the IHO found that three of the five witnesses for the parents, which included one of the student's parents, the student's BCBA, and the student's teacher from Caedmon, were not credible (IHO Decision at p. 34). However, the parents only address the IHO's credibility determinations in their memorandum of law.  As a general matter, it has long been held that a memorandum of law is not a substitute for a pleading (see 8 NYCRR 279.4, 279.6; see also T.C. v. William Floyd Union Free Sch. Dist., 774 F. Supp. 3d 583, 620 n.10 [E.D.N.Y. 2025]; Bd. of Educ. of Harrison Cent. Sch. Dist. v. C.S., 2024 WL 4252499, at *13 [S.D.N.Y. Sept. 20, 2024]; Davis, 2021 WL 964820, at *11; Application of a Student with a Disability, Appeal No. 19-021; Application of the Dep't of Educ., Appeal No. 12-131).  Further, the practice regulations specifically prohibit incorporation by reference (8 NYCRR 279.8[b]).  Thus, any issues not raised in the request for review have been deemed abandoned, and any arguments included solely within the memorandum of law have not been properly raised and will not be considered herein.  Accordingly, the parent’s challenge to the IHO's credibility findings, as raised solely in the memorandum of law, have been waived because they were not appealed in the request for review, and that issue will not be considered.

4. Mootness

With respect to the parents' appeal seeking to reverse the IHO's finding that the parents did not establish that the student's unilateral placement for the 2024-25 school year was appropriate, it is well settled that the dispute between parties must at all stages be "real and live," and not "academic," or it risks becoming moot (Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; see Toth v. City of New York Dep't of Educ., 720 Fed. App'x 48, 51 [2d Cir. Jan. 2, 2018]; F.O. v. New York City Dep't of Educ., 899 F. Supp. 2d 251, 254 [S.D.N.Y. 2012]; Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *12 [E.D.N.Y. Oct. 30, 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30, 2008]; see also Coleman v. Daines, 19 N.Y.3d 1087, 1090 [2012]; Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]).  In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., V.M. v. N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 119-21 [N.D.N.Y. 2013]; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 280-81 [E.D.N.Y. 2010]; Patskin, 583 F. Supp. 2d at 428-29; J.N., 2008 WL 4501940, at *3-*4; but see A.A. v. Walled Lake Consol. Schs., 2017 WL 2591906, at *6-*9 [E.D. Mich. June 15, 2017] [considering the question of the "potential mootness of a claim for declaratory relief"]).  Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007).

While a student is entitled to remain in his or her stay-put placement during the pendency of a proceeding, this statutory protection is similar to preliminary injunctive relief, as it protects the student while the proceedings are pending and is distinct from the ultimate relief available to a parent through the due process proceedings (20 U.S.C. § 1415 [j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]).  In this case, however, the parents' ultimate request for relief is the same for both pendency and the parents' merits-based claim for the district's denial of a FAPE.  At the hearing, the parents requested that the district fund the cost of the student's tuition at Caedmon for the 2024-25 school year, the student's private full-time in-school ABA "SETSS/SEIT" services, up to four hours per week of individual after-school ABA services, up to three hours per week of speech-language therapy, up to three hours of OT, and one 30-minute session per month of parent counseling and training (IHO Ex. II at p. 20).  As discussed above, the parties agreed, based upon the unappealed July 2, 2024 IHO decision in the parent's favor, that the student's pendency placement would include tuition for the student's attendance at Caedmon, the provision of full-time in-school individual ABA services, 12 hours per week of individual after-school ABA services, up to three hours per week of speech-language therapy, up to three hours per week of OT, and 30-minutes per month of parent counseling and training (Pendency Implementation Form).  The agreed-upon pendency placement for the student is, in essence, what the parents requested be funded by the district for the 2024-25 school year, plus approximately eight hours of after-school ABA services more than what the parents requested as ultimate relief during the impartial hearing.  Additionally, neither party alleges on appeal that the pendency order was not implemented, and the district, through a letter-request for an extension to file the answer and cross-appeal, indicated that the student was "currently receiving services pursuant to a pendency (stay-put) placement."  Moreover, the parents asserted in the request for review that the student's "program was being funded by way of his pendency entitlement" during the proceedings below such that the parents were "not required to incur any financial responsibility because the district was required to bear [the] costs" (Req. for Rev. ⁋ 22).  Accordingly, the student has received all of the requested relief sought in this proceeding for the alleged deprivation of FAPE, under the pendency provisions, as related to the 2024-25 school year and a review of the IHO's findings related to the appropriateness of the unilaterally obtained services will not alter the relief in any way.

Nevertheless, a claim may not be moot despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318-23 [1988]; Toth, 720 Fed. App'x at 51; Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040).  The exception applies only in limited situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]).  It must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration" (Murphy v. Hunt, 455 U.S. 478, 482 [1982]; see Knaust, 157 F.3d at 88).  Many IEP disputes escape a finding of mootness due to the short duration of the school year facing the comparatively long litigation process (see Lillbask, 397 F.3d at 85).  Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]; Toth, 720 Fed. App'x at 51; see Hearst Corp., 50 N.Y.2d at 714-15).  To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Murphy, 455 U.S. at 482; Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 120 [2d Cir. 2001]).  Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence (Russman, 260 F.3d at 120; but see A.A., 2017 WL 2591906, at *7-*9 [finding that the controversy as to "whether and to what extent the [s]tudent can be mainstreamed" constituted a "recurring controversy [that] will evade review during the effective period of each IEP for the [s]tudent"]; see also Toth, 720 Fed. App'x at 51 [finding that a new IEP that did not include the service requested by the parent established that the parent's concern that the prior IEP would be repeated was not speculative and the "capable of repetition, yet evading review" exception to the mootness doctrine applied]).

Some courts have taken a dim view of dismissing a Burlington/Carter reimbursement cases as moot because all of the relief has been obtained through pendency (New York City Dep't of Educ. v. S.A., 2012 WL 6028938, at *2 [S.D.N.Y. Dec. 4, 2012]; New York City Dep't of Educ. v. V.S., 2011 WL 3273922, at *9-*10 [E.D.N.Y. Jul. 29, 2011]), while others have found it an acceptable manner of addressing matters in which the relief has already been realized through pendency (see V.M., 954 F. Supp. 2d at 119-20 [explaining that claims seeking changes to the student's IEP/educational programing for school years that have since expired are moot, especially if updated evaluations may alter the scrutiny of the issue]; Thomas W. v. Hawaii, 2012 WL 6651884, at *1, *3 [D. Haw. Dec. 20, 2012] [holding that once a requested tuition reimbursement remedy has been funded pursuant to pendency, substantive issues regarding reimbursement become moot, without discussing the exception to the mootness doctrine]; F.O., 899 F. Supp. 2d at 254-55; M.R. v. S. Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *9 [S.D.N.Y. Dec. 16, 2011]; M.S., 734 F. Supp. 2d at 280-81 [finding that the exception to the mootness doctrine did not apply to a tuition reimbursement case and that the issue of reimbursement for a particular school year "is not capable of repetition because each year a new determination is made based on [the student]'s continuing development, requiring a new assessment under the IDEA"]).

Initially, review of the district court decision in V.S., shows that matter was determined not to be moot because a decision as to the adequacy of the proposed IEP in that matter would have supplanted the student's then-current pendency placement and established a new educational placement for the student (V.S., 2011 WL 3273922, at *10).  However, in this matter, neither party has properly appealed from the IHO's determination that the district failed to offer the student a FAPE for the 2024-25 school year (see IHO Decision at p. 32).  Accordingly, there can be no pendency changing determination related to the 2024-25 school year and there is no further relief that could be addressed for the parents' claims related to that school year that is ongoing and remediable.

Additionally, the capable of repetition yet evading review exception to mootness would not apply because the conduct complained of—the district's failure to offer the student a FAPE—is no longer at issue.  Rather, the parties' dispute centers around the particular nonpublic school and private services that the parents obtained, as self-help, to remedy the district's denial of a FAPE to the student.  As the FAPE determination was not appealed by the district and is therefore final and binding upon the parties, and the only issues relate to the appropriateness of the unilaterally obtained services and the weighing of equitable considerations, any parental concern that the district would continue to recommend the same program is not addressable at this level of the proceeding and cannot be used to justify a finding that the matter is "capable of repetition, yet evading review."  While the Second Circuit has noted that "IEP disputes likely satisfy the first factor for avoiding mootness dismissals" because "judicial review of an IEP is 'ponderous'" (Lillbask, 397 F.3d at 87), this does not seem to be a concern in this matter as the IEP dispute has been removed.  Without an IEP dispute, the question of the appropriateness of unilaterally obtained services could be made in a much shorter time frame.  More pertinently, however, there is no district action "capable of repetition, yet evading review, "as there is no longer a dispute regarding the student's educational programming for the 2024-25 school year.

Moreover, even if the dispute here could be repeated, a determination in this matter would be of little consequence, as detailed procedural and substantive fact findings must be made regarding each disputed IEP, school year, or unilateral placement, and administrative hearing officers cannot rely on facts from one school year to make determinations about a different school year (see J.R. v. New York City Dep't of Educ., 748 Fed. App'x 382, 386 [2d Cir. Sept. 27, 2018] [stating that "the [district's] funding of [the student's] schooling in other years is irrelevant: 'the adequacy vel non of an IEP . . . is to be judged on its own terms'" and that whether the district offered the student "an appropriate placement in other years 'makes no difference' to the question of whether the IEP provided a FAPE" in the school year at issue], quoting M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 67 [2d Cir. 2000]; but see Cohen v. Aviles-Ramos, 2025 WL 3715102, at *3 [S.D.N.Y. Dec. 22, 2025] [noting that the district in that matter did not present a reason to believe that a determination on funding for private transportation services would be subject to an annual reassessment]).  As such, the issue of whether a unilateral placement is appropriate, unlike FAPE, does not fit into the mootness exception as it is not capable of repetition yet evading review.

However, while it is no longer at issue whether the district offered the student a FAPE for the 2024-25 school year, and while I find the remaining issues of whether the student's unilateral placement was appropriate for the 2024-25 school year and the weighing of equitable considerations to be moot,^[12] out of an abundance of caution, I will address the merits of the parents' appeal below, as an alternative finding.

B. Unilateral Placement

Moving to the dispute between the parties regarding the appropriateness of the student's unilateral placement for the 2024-25 school year, the parents assert that the IHO held the parents to an improper burden of proof, requiring "a perfect, retrospective accounting of the student's program at school and afterschool," that the student's placement at Caedmon resolved deficiencies in the district recommended programming, such as a small class size and 1:1 ABA support from UUA, and that although Caedmon was not a special education program, individualization came "from the implementation of [the student's] treatment plan with UUA."

Accordingly, some consideration must first be given to the appropriate legal standard to be applied.

In this instance, the parents seek funding for the student's placement at Caedmon, plus the costs of privately obtained speech-language therapy, OT, and ABA services.  Parents may obtain outside services for a student in addition to a private school placement as part of a unilateral placement (see C.L., 744 F.3d at 838-39 [finding the unilateral placement appropriate because, among other reasons, parents need not show that a "'private placement furnishes every special service necessary'" and the parents had privately secured the required related services that the unilateral placement did not provide], quoting Frank G., 459 F.3d at 365).

Initially, contrary to the parents' contentions on appeal, a review of the appropriateness of a unilateral placement is not restricted to only the evidence available to the parent at the time he or she makes the unilateral placement decision insofar as implementation of the programming and services and the student's progress are relevant to the analysis (see Khanimova v. Banks, 2025 WL 722876, at *6 [S.D.N.Y. Mar. 6, 2025], citing C.L., 744 F.3d at 836).

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129).  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"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits.  Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs.  To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential.  They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

1. Student Needs

Although not in dispute, a brief discussion of the student's needs provides context to resolve the issue of whether or not the unilateral placement and private services obtained by the parents were appropriate for the student during the 2024-25 school year. 

According to a September 2023 neuropsychological evaluation, the student presented with difficulties in academic, communication, socialization, attention, adaptive, and social/emotional skills, as well as behavior regulation (Parent Ex. D at p. 14).  The evaluator explained that the student's performance on the Wechsler Intelligence Scale for Children – Fifth Edition (WISC-V), was variable, specifically noting that he performed "consistently average" in the area of visual spatial processing, but inconsistently in the domains of verbal reasoning and nonverbal fluid reasoning, with performances falling within the average to below average ranges (id. at pp. 14-15). The evaluator opined that the student was unable to perform consistently due to his variable focus and self-regulation skills, and that he displayed weaknesses in receptive and expressive communication, exacerbated by fluctuating focus and an impulsive response style on visual motor tasks (id. at p. 15). Additionally, the evaluator opined that difficulties with attention and communication also impacted the student's performance on memory tasks, noting that he worked best when tasks were visual or multi-modal as opposed to exclusively verbal (id.). 

With regard to academic testing, the evaluation report indicated the student's performance across reading, writing, and math ranged from average to below average (Parent Ex. D at p. 15).  The evaluator indicated that the student's early decoding and spelling skills were developing, but he struggled with higher order comprehension, written expression, and "the more conceptual aspects of these domains" (id.).  In math, the student could identify numbers, compare quantities, and count, but was not yet completing word problems or performing arithmetic (id.). 

The evaluator confirmed the student's ASD diagnosis and reported that the student met the criteria for ADHD combined type, and unspecified anxiety disorder (Parent Ex. D at p. 14).   The September 2023 neuropsychological evaluation report contained the following recommendations:  access to the general education curriculum with 1:1 behavioral support throughout the day; speech-language therapy; OT; use of a clear animated delivery style with instructions broken down into tasks; preferential seating; visual aids; positive reinforcement; frequent breaks; teacher check-ins; ABA services; consultation with a psychiatrist regarding medication for ADHD and anxiety; and reevaluations as necessary (id. at pp. 16-17). 

According to a December 2023 progress report of the student's 2023-24 OT goals, the student was demonstrating steady and consistent gains with the areas of executive function and sensory modulation; however delays in executive skills continued to impact his ability to successfully participate within the classroom environment and with his peers, especially as the complexity and rigor of schoolwork and play increased (Parent Ex. D at p. 66).  The student continued to require moderate verbal cues and minimal visual cues to recognize or add distinguishing features or add universal features when drawing a person (id. at p. 68).  Additionally, the occupational therapist indicated the student was able to copy three shapes with verbal prompting and gestures to highlight the details of the image (id.).  She further explained that the student benefitted from tasks broken down into check lists or step by step instructions (id.).

The January 2024 speech and language progress report indicated that although the student had shown progress over the course of the school year, he continued to exhibit moderately delayed receptive, expressive, and pragmatic language skills (Parent Ex. D at p. 70).  The speech-language pathologist noted that the student had become more independent in the classroom but continued to rely on adult redirection and models (id.). The student was described as increasingly able to use language for various purposes and show greater flexibility in conversational exchanges and turn-taking, while also working on regulating social-emotional feelings (id. at p. 71).  The speech-language pathologist identified story telling as the student's biggest weakness in pragmatics (id.).  The student was making progress in using and comprehending language, particularly in recalling conversation details, learning new vocabulary, consistently making comments, and asking questions appropriately (id.). He was working on responding appropriately to questions and answering a variety of questions with accuracy (yes/no, who, what, where and when) (id. at pp. 71-72).  Finally, the student demonstrated difficulty producing narratives and needed to practice story grammar elements (id. at p. 72).

The January 2024 ABA assessment report and treatment plan indicated that the ABA services were targeting behavioral, communication, activities of daily living (ADL) skills and social goals (Parent Ex. D at p. 29).  The treatment plan noted that the student had made progress over the past six months; however, he exhibited some stereotypical behaviors such as flipping items upside down or lining them up in a specific way, as well as sensory behaviors such as washing hands in a particular manner, becoming upset when clothes became wet, and adjusting his clothes in a certain way (id.).  The plan further indicated that while the student could become upset at times, he was easily redirected (id.).  The BCBA reported that the student could initiate a conversation with an adult without initial prompting but continued to require prompts to initiate conversations with peers (id.).  The treatment plan also indicated that the student exhibited behaviors that could interfere with day-to-day activities such as noncompliance, maladaptive behavior, property destruction, and self-injurious behavior (id. at p. 35). Additionally, the student experienced difficulty navigating peer interactions and sometimes engaged in negative reactions that could escalate to physical aggression (id.).  The BCBA reported that the student was "currently unable to complete certain tasks, activities and ADL skills in absence of behavior and/or without teacher support" (id. at p. 36).  However, the treatment plan reflected that, based on assessment and progress, a BIP was not necessary at that time (id. at p. 60). The following recommendations were contained in the assessment and treatment plan: ABA services to address mand, tact, listener responding, independent play, social behavior and social play intraverbal, visual perceptual and matching to sample, motor imitation, echoic, classroom routine and group skills (id. at p. 62).

According to the June 2024 Caedmon elementary progress report, the student had a positive attitude towards school, did an excellent job with classroom routines and following classroom rules, and, with encouragement and scaffolding, shared his thoughts with the class (Parent Ex. K at p. 1).  The report indicated that the student could sustain focus and work independently when completing writing, handwriting, and phonics workbook tasks (id.).  The student enjoyed cleaning up and keeping his materials organized (id.).  In reading, the progress report indicated that the student had made progress over the 2023-24 school year and was "working to approach grade-level expectations" (id. at p. 2).  The student continued to practice tracking each word, segmenting words, sounding out unknown words, retelling stories, recognizing sight words, and strengthening phonemic awareness (id.).  In writing, the student was reported to enjoy nonfiction and poetry units, take pride in his work, and use the "rules and parameters to guide his writing" (id.).  The progress report reflected the student's progress in math, specifically noting that he was most successful when using manipulative (id. at p. 3).  According to the progress report, the student was working on adding and subtracting single digit numbers, identifying the relationships between ones and tens, and telling time (id.).  The student successfully used nonstandard tools such as inch tiles, clips, and cubes in unit measurement (id.). 

2. Caedmon and Private Related Services

Turning to the program provided to the student during the 2024-25 school year, the hearing record contains limited information.  Specifically, the documentary evidence in the hearing record includes a general description of Caedmon's kindergarten and elementary program and the student's schedule at Caedmon, along with a July 2024 UUA (the ABA provider) assessment report and treatment plan, a November 2024 speech-language therapy progress report, and a 2024-25 OT "IEP Goals" document (Parent Exs. G; I; K; M; N; P; R).^[13]

According to the evidence in the hearing record, the student attended a private, general education program at Caedmon and received 36 hours per week of individual ABA services, two 45-minute sessions per week of individual speech-language therapy, and one 60-minute session per week of individual OT (Parent Exs. D at pp. 63-64, 70; P at p. 1; V ¶ 8; W ¶ 8).

The Caedmon program description highlighted that the program integrated "Montessori values with research-based progressive educational philosophy" (Parent Ex. G at p. 1). The program combined first and second grade and according to the student's teacher, the student's class had a total of 16 students and two teachers in the classroom (Parent Exs. G at p. 5; T ¶¶ 3, 14, 23, 24).  Caedmon's curriculum focused on developing "independence, imagination, and a sense of agency through inquiry, deep thinking and active exploration," and included language arts, mathematics, social studies, and special subject classes (Parent Ex. G at pp. 2-3). Although the student's schedule did not identify any classes prior to 1:00 p.m., the UUA BCBA testified that the student's typical day involved arriving at school, morning meeting, math, reading and writing, lunch, and recess, followed by specials such as library, technology, Spanish, art, music, violin, science, or gym (Parent Exs. I; U ¶¶ 2, 22).

The July 2024 UUA assessment report and treatment plan reported that the student presented with deficits in communication, social, and learning skills, and that he exhibited negative behaviors (Parent Ex. M at p. 2). The treatment plan further reported that the student struggled with expressive language, specifically noting that he was able to request and communicate using four-to-six-word utterances, with occasional errors in verb tense, adjectives, or adverbs (id.).  The student also exhibited some sensory-related behaviors, such as avoiding wet clothes and hands, clapping hands, and being unable to walk in a wet bathing suit or sit for long periods of time (id.).  Additionally, he exhibited restrictive behaviors around clothing (id.).  The treatment plan indicated that the student struggled with peer relationships, could not attend to a whole group session for more than four minutes, and at times, engaged in negative or attention seeking behavior (id.).  Additionally, the treatment plan indicated that the student exhibited difficulty understanding instructions for a given worksheet and/or independent work, and that he could become distracted without support and not complete work independently (id.).

The July 2024 UUA assessment report and treatment plan contained the results of a July 11, 2024 administration of the Assessment of Basic Language and Learning Skills (ABLLS-R), data collected in July 2024 regarding the student's behaviors, as well as approximately 42 proposed treatment plan goals targeting skills within the areas of behavior, listener responding, manding (requesting), tacting (describing), visual perceptual, play, social, PEER interactive routines and group skills, intraverbal, and ADL skills (Parent Ex. M at pp. 3-21; see Parent Ex. N)).  Additionally, the treatment plan also included goals for teacher training and family involvement (Parent Ex. M at pp. 21-23).  The treatment plan goals contained evaluative criteria and procedures, as well as baseline and benchmark data from January 2024 and July 2024, respectively, with the goals being the same goals as were worked on with the student during the 2023-24 school year although, for July 2024, some goals were marked as having been mastered (see id. at pp. 7-23; Parent Ex. D at pp. 34-60).  

Turning to the available documentary information regarding what occurred during the 2024-25 school year, a November 2024 speech-language progress report indicated that the student had been receiving two 45-minute sessions of individual speech-language therapy focused on supporting the student within the classroom, socialization, language, communication, and academic skills (Parent Ex. P at p. 1).  The speech-language pathologist reported that the student was working on writing skills, understanding grammar concepts, reading leveled books, retelling and identifying story components, identifying differences in picture cards using full sentences, homophones, and writing a cohesive paragraph (id. at pp. 1-2). Additionally, the student was demonstrating an increased ability to use language for different purposes, had become increasingly self-aware, was asking appropriate questions and was listening to longer responses, and stayed on topic more consistently (id. at p. 2). The progress report indicated that the student occasionally produced a distortion of /s/, but could correct it with reminders (id.). According to the report, the student was demonstrating longer, more consistent, and cohesive conversational exchanges; however he continued to have difficulty with producing narratives (id. at p. 3).

The speech-language pathologist testified that the student's inconsistent attention and focus inhibited his ability to process language; however, she opined that direct support and 1:1 learning improved the student's level of engagement (Parent Ex. V ¶¶ 2, 13).  She further explained that the student continued to make steady progress toward his speech and language goals, specifically reporting that he had become more comfortable using language to appropriately communicate with same age peers; demonstrated recall of a graphic organizer in order to tell or retell an introduction, three details, and a conclusion; and was demonstrating less rigidity with language, an increased understanding of nuances of language, and was being less literal (id. ¶18).

The hearing record includes a document with OT "IEP" long and short-term goals for the student to work on during the 2024-25 school year to improve his executive functioning, gross motor, fine motor, and visual memory skills (see Parent Exs. R; W ¶¶ 12, 13). The student's occupational therapist testified that she provided one 60-minute session per week of individual OT to the student after school in his home (Jan. 31, 2025 Tr. p. 138; Parent Ex. W ¶¶ 8, 16). She explained that a 30-minute session was not appropriate to meet the student's needs, and therefore it was modified to 60 minutes (Jan. 31, 2025 Tr. p. 139).  She further explained that the increased time allowed for the student's slower working memory and processing speed, as well as to "break activities down into small, manageable tasks (Jan. 31, 2025 Tr. p. 141). The occupational therapist reported that the student's challenges were "related to his executive functioning skills, his working memory, his organization, his cognitive flexibility," his problem solving, and his sensory regulation (Jan. 31, 2025 Tr. pp. 149-50). The occupational therapist reported that the student made progress over the first three months of the 2024-25 school year in gross and fine motor, visual perceptual, and executive functioning skills (Parent Ex. W ¶ 19).  She opined that the student was demonstrating progress throughout the school year in fine motor skills, executive functioning, and sensory regulation (Jan. 31, 2025 Tr. p. 142).

Based on the information discussed above, the hearing record contains limited evidence regarding the specifics of the program and instruction the student received from both Caedmon and his ABA providers during the 2024-25 school year.  Additionally, given the IHO's credibility findings concerning the UUA BCBA and the student's teacher from Caedmon, there is a distinct lack of information as to how the student's ABA services were implemented alongside the general education curriculum at Caedmon (see IHO Decision at p. 34).  Additionally, a similar lack of information in the hearing record persists with respect to the general education curriculum at Caedmon.  For example, while the June 2024 Caedmon elementary progress report supports identifying the student's needs leading into the 2024-25 school year, because it predates the 2024-25 school year it provides little information with respect to the program provided to the student and a more recent report was not offered into evidence during the impartial hearing.^[14]  The bulk of the evidence regarding the actual special education services delivered to the student for the 2024-25 school year pertains to his private speech-language therapy and his OT services, which both appear to adequately address the student's needs in the areas that those services address.  However, the hearing record does not sufficiently explain how the services assist the student in his general education classroom.  Specially designed instruction is defined as "adapting, as appropriate to the needs of an eligible student, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]). Without more information regarding the remaining, significant aspects of the student's educational program, such as how the student's extensive ABA services assist the student in accessing the general education curriculum at Caedmon, there is an insufficient basis to overturn the IHO's ultimate conclusion that the parents failed to meet their burden of establishing that the student's unilateral program met his needs.

VII. Conclusion

I find that the parents are entitled to all of the relief sought in this matter, which is ultimately dismissed as moot for the reasons described above. Accordingly, any further findings regarding the merits are made in the alternative and out of an abundance of caution. In that regard, although my reasoning differs in certain respects from that of the IHO, there is insufficient basis to disturb the IHO’s ultimate conclusion that, under the totality of the circumstances, the parents failed to establish that the student’s unilateral placement for the 2024–25 school year was appropriate.

I have considered the parties' remaining contentions and find the necessary inquiry at an end.

THE APPEAL IS DISMISSED.

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Footnotes

[1] The parent's email was in response to an undated email from the district, informing the parent of the date of the CSE meeting (Parent Ex. D at p. 2). 

[2] The student's eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).

[3] The parents' original due process complaint notice was dated July 1, 2024 (Parent Ex. B), and the amended due process complaint notice reflects that the amendment was being submitted "to update [the student's] pendency entitlements," which were based on a decision of an impartial hearing officer dated July 2, 2024 (Parent Ex. A at pp. 1-2).

[4] Neither the due process complaint notice nor the amended due process complaint notice was signed by an identified person; rather, they included an "s/" mark next to the name of the law firm at the end of the document ("s/ Mayerson & Associates") (Parent Exs. A at p. 12; B at p. 12).   

[5] The first three transcripts are not consecutively paginated with the final three transcripts.  For clarity, all transcript citations will be preceded by the date of the hearing. 

[6] As will be discussed later in this decision, the parents' proposed SRO exhibit 1, a copy of the July 2, 2024 IHO decision, will be accepted as additional evidence into the hearing record. 

[7] Although the district served and filed a document labeled "Verified Answer and Cross-Appeal," review of the document as a whole shows that it does not contain a cross-appeal in that it does not identify any precise rulings, failures to rule, or refusals to rule of the IHO of which the district seeks review (see 8 NYCRR 279.8[c][2]), accordingly, for purposes of this decision, the pleading will be treated as an answer with defenses.  Additionally, to the extent the district has challenged the IHO's potential findings that the student's private OT and speech-language therapy services were appropriate, the district was not aggrieved by the ultimate finding that the unilateral placement for the student, as a whole, was not appropriate, so the district's contentions in this regard would not be properly considered as cross-appeals.  In addition, the parents submit an answer to the district's pleading; however, as the district's pleading was in fact an answer, and not a cross-appeal, the parents' response thereto is a reply and not an answer to a cross-appeal and will be treated as a reply.  State regulation limits the scope of a reply to "any claims raised for review by the answer . . . that were not addressed in the request for review, to any procedural defenses interposed in an answer . . . or to any additional documentary evidence served with the answer" (8 NYCRR 279.6[a]).

[8] While the district makes contentions regarding an award of transportation for the student, I note that, as the parents point out in their reply, they withdrew any requests for relief with respect to transportation services at the end of the impartial hearing (IHO Ex. III at p. 1; see Reply ⁋ 23).

[9] 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).

[10] Part 279 of the practice regulations was amended, effective January 1, 2017, and while the former regulations mandated that "pleadings shall set forth the allegations of the parties in numbered paragraphs" (8 NYCRR 279.8[a][former 3]), that requirement was explicitly repealed in the practice regulations as amended (see 8 NYCRR Part 279).  The regulations, as amended, neither require nor preclude a party from using numbered paragraphs in their pleadings but they do require that the parties number the issues they advance for review on appeal (8 NYCRR 279.8[c][2]).

[11] However, to the extent that the parents contend that the IHO used an incorrect standard in evaluating the appropriateness of the unilateral placement, this will be discussed below. 

[12] The procedural posture here confirms that a merits determination is not outcome-determinative for purposes of the mootness exception. A prior IHO ruled in favor of the parents on a similar claim for the preceding school year in July 2024, while the IHO in this matter ruled against them, a result affirmed herein. Neither determination altered the student’s pendency-driven program for the 2024–25 school year, nor does either bind future determinations, which are necessarily fact-specific and year-dependent. This demonstrates that adjudication of the merits would not yield effective relief and, therefore, does not support application of the capable of repetition yet evading review exception.

[13] The student's school year at Caedmon began on September 5, 2024 and ended on June 11, 2025 (Parent Ex. H).  Additionally, the IHO determined that the hearing record did not identify whether the student received ABA services during summer 2024, as "the biggest component of [the student's] ABA program [wa]s during school" (IHO Decision at p. 34).  It is worth noting that although the IHO made this finding as part of her determination that the hearing record did not include sufficient information to show the unilaterally obtained program was appropriate, the parents only attempted to submit the additional evidence referenced above regarding invoices as to equitable considerations (Req. for Rev. ¶ 24).  Accordingly, the parents have not actually appealed from the IHO's determination that the hearing record did not support a finding that ABA services were delivered to the student during the summer of the 2024-25 school year.

[14] The parents assert that the student's program for the 2024-25 school year was the same program that was found appropriate for the student with respect to the 2023-24 school year and further assert that in contrast to the prior IHO decision, the IHO in this matter "twisted and contorted the applicable standards and the evidentiary record to rule in respondent's favor" (Req. for Rev. ¶¶ 2, 25).  Initially, each school year must be treated separately (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 67 [2d Cir. 2000] [examining the prongs of the Burlington/Carter test separately for each school year at issue]; Omidian v. Bd. of Educ., 2009 WL 904077, at *21-*26 [N.D.N.Y. Mar. 31 2009] [analyzing each year of a multi-year tuition reimbursement claim separately]).  However, with respect to how this allegation is framed by the parents, it is worth noting that in the matter involving the 2023-24 school year, the July 2024 IHO decision shows that IHO in that matter had more current information regarding the 2023-24 school year than was presented in this matter related to the 2024-25 school year (see SRO Ex. 1 at pp.  9-10, 14-15, 19-20).