STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-238
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 Office of Elisa Hyman, PC, attorneys for petitioners, by Erin O'Connor, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Cynthia Sheps, 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 daughter's tuition at the Manhattan Behavioral Center (MBC) for the 2024-25 school year. The appeal must be sustained in part.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case, and the IHO's decision, will not be recited here in detail. The student has received diagnoses including autism, pica, and apraxia, and has exhibited anxiety and aggressive behaviors (Parent Exs. D; F). Reportedly, the student has continuously attended MBC since 2017 (Parent Ex. U ¶ 22). A functional behavioral assessment (FBA) of the student was conducted in October 2023, the results of which MBC used to create a behavioral intervention plan (BIP) in November 2023 (see Parent Ex. Q).
A CSE convened on February 15, 2024, determined that the student continued to be eligible to receive special education as a student with autism, and developed an IEP for the student with a projected implementation date of February 20, 2024 (Dist. Ex. 1 at pp. 1, 38). The February 2024 CSE recommended that the student receive 12-month services consisting of 30 periods per week of instruction in a 6:1+1 special class in a district specialized school; three periods per week of adapted physical education; five 45-minute sessions per week of individual occupational therapy (OT); five 45-minute sessions per week of individual physical therapy (PT); five 45-minute sessions per week of individual speech-language therapy; and full-time, daily, individual paraprofessional services for behavior support (id. at pp. 28-30, 35). The February 2024 CSE also recommended assistive technology services for the student consisting of a full-time, daily, individual "iPad Pro 9.7 w/Charger-set up/Screen protector Gumdrop Foam Case Touch Chat HDAAC with Word Power" and an "iPad mini with Touch Chat HD[-]ACC with Word Power" (id. at pp. 29-30). Additionally, the February 2024 CSE recommended special transportation including from the closest safe curb to the school, individual paraprofessional services for adult supervision, air conditioning, limited travel time, and a route with fewer students (id. at pp. 30, 34-35).
In a prior written notice dated March 8, 2024, the district informed the parents of the February 2024 CSE's recommendations, the additional special education options considered and rejected, and the reasons why the CSE rejected them (Dist. Ex. 2 at pp. 1-5). The prior written notice was accompanied by a school location letter, dated March 8, 2024, which notified the parents of the student's assigned public school site (id. at pp. 7-8). Through a document titled Parent Notification of Participation in the New York State Alternate Assessment (NYSAA) dated March 8, 2024, the district informed the parents that the CSE determined that the student met the eligibility criteria for the NYSAA (id. at pp. 14-15; see Dist. Ex. 1 at p. 33).
The parents emailed the district a letter dated April 27, 2024, acknowledging their receipt of the district's March 8, 2024 school location letter and notifying the district that they had not received a copy of the student's most recent IEP (Parent Ex. S at p. 1). In their April 2024 letter, the parents notified the district that they toured the assigned public school site but became concerned when during the tour "nobody was able to answer [the parents'] questions of how the placement w[ould] implement the proposed IEP and meet [the student]'s needs" (id.). The parents listed their questions and concerns and asked the district to "please provide a full description of the program and how the placement w[ould] implement the proposed IEP" (id. at p. 2).
By letter dated June 14, 2024, the parents provided the district with 10-day notice of their intention to unilaterally enroll the student at MBC and seek public funding for the cost of the student's attendance for the 2024-25 school year (see Parent Ex. B). The parents also informed the district that it was their position that the district failed to offer the student an appropriate IEP or provide a school location letter for the 2024-25 school year (id. at p. 1). In addition to seeking funding for the costs of the student's attendance at MBC, the parents also notified the district that they were seeking funding for the student's after-school applied behavior analysis (ABA) services through MBC for the 2024-25 school year (id. at p. 5). The parents further asserted that the student had pendency at MBC (id. at p. 6).[1]
A. Due Process Complaint Notice
In a due process complaint notice dated July 5, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (see Parent Ex. A). The parents claimed that the district violated numerous procedural and substantive requirements of the IDEA including, but not limited to: (1) failing to timely and appropriately evaluate the student; (2) failing to develop and implement IEPs with individual instruction, ABA instruction, after-school ABA and appropriate related services; (3) failing to offer the student a timely and appropriate assigned public school; (4) failing to employ appropriate procedures for the student in the IEP; (5) that the February 2024 CSE predetermined its recommendations; (6) that the February 2024 CSE was improperly constituted; (7) failing to conduct an FBA or to develop a BIP (id. at pp. 1, 3, 8). The parents also alleged that the district violated section 504 (id. at pp. 2, 11). The parents asserted that the March 2024 school location letter was procedurally deficient and they therefore did not receive a timely notification of the assigned public school site (id. at p. 8).[2] Further, the parents invoked the student's right to pendency at and alleged that the student's pendency services consisted of enrollment at MBC along with the student's after-school programming (id. at p. 13). As relief, the parents sought funding for the costs of the student's attendance at MBC, funding for the student's after-school ABA services through MBC, as well as funding for the student's special transportation and individual paraprofessional costs (id. at p. 13). The parents also requested an award of compensatory education for any ABA or related services the student missed during the 2024-25 school year (id.). The parents further requested funding for independent educational evaluations (IEEs) (id. at p. 12).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on November 20, 2024 (Tr. pp. 1-92).[3] Following the introduction of documentary evidence, the IHO directed the parents' attorney to present her opening statement before the district's opening statement (Tr. pp. 7-8). At the conclusion of the parents' attorney's opening statement, the district's attorney presented her opening statement and indicated that the district was "resting on its documents regarding its Prong 1 burden" (Tr. p. 13). The district's attorney also stated that with regard to the parents' request for IEEs, the district should be permitted to conduct the evaluations (Tr. pp. 13-14). At the conclusion of the district's opening statement, the parents' attorney interjected that the parents were no longer seeking funding for the IEEs (Tr. p. 14).
In a decision dated March 14, 2025, the IHO found that although the district failed to present witnesses, the documents presented by the district were sufficiently comprehensive to establish that the district offered the student a FAPE for the 2024-25 school year (IHO Decision at pp. 7-13).[4] The IHO first addressed the parents allegations of procedural violations of the IDEA, finding that the parents' claims that the district failed to comprehensively evaluate the student and denied the parents a meaningful opportunity to participate in the development of the IEP were not substantiated by the hearing record, and did not rise to the level of a denial of a FAPE to the student for the 2024-25 school year (id. at pp. 7-10). Specifically, the IHO determined that the CSE relied on sufficient evaluative information provided by the parents, that the parents were provided a meaningful opportunity to participate in the CSE meeting, and that the CSE did not predetermine the outcome of its recommendations (id. at pp. 8-10). The IHO then determined that the district demonstrated that the CSE "considered [the s]tudent's specific strengths and needs, and programmed accordingly using insight from [the s]tudent's current educators, and valid, timely data, with a duly constituted team" and found that the student was offered a FAPE in the least restrictive environment for the 2024-25 school year (id. at p. 12). The IHO further found that the parent's assigned school claims were speculative (id. at p. 13).[5]
The IHO also considered the appropriateness of the parents' unilateral placement and determined that MBC was not an appropriate unilateral placement for the student for the 2024-25 school year (IHO Decision at pp. 14-17). The IHO was particularly troubled by evidence in the hearing record indicating that "MBC d[id] not offer an education program" but rather "training on [the student's] ABA goals from her individual plan," which the IHO found was "not reasonably calculated and tailored to meet [the s]tudent's needs" (id. at p. 14). The IHO also held that the student had not made progress and that the testimony given by the director of education at MBC (director) was evasive and not credible (id. at pp. 14-16). As for equitable considerations, the IHO determined that the district was not required to fund a "non-approved, non-academic, private fee-for-service program" as chosen unilaterally by the parents (id. at p. 18). Lastly, the IHO found that the parents failed to prove that there was a section 504 violation (id. at pp. 18-19).
IV. Appeal for State-Level Review
The parents appeal from the IHO's finding that the district offered the student a FAPE for the 2024-25 school year. Specifically, the parents assert that the IHO erred by finding that the district met its burden despite the failure to present any witnesses. Next, the parents argue that the IHO should have found that the CSE predetermined its decision not to recommend 1:1 ABA services and did not "meaningfully consider" the parents' request for an ABA program. The parents assert that the February 2024 IEP was not based on recent evaluations and ignored the recommendations for ABA services, adopted MBC goals but did not provide the 1:1 ABA services necessary to implement the annual goals, failed to provide 1:1 instruction and/or ABA services, and failed to address her maladaptive behaviors.[6]
The parents also appeal from the IHO's findings that MBC did not provide the student with special education instruction and that the student failed to make progress. Further, the parents argue that the IHO erred in concluding that MBC was not appropriate because the student continued to exhibit aggression, and in finding that the director's testimony was not credible. Additionally, the parents assert that the IHO erred by incorrectly analyzing equitable considerations and finding that they did not support reimbursement.[7]
In an answer, the district argues to uphold the IHO's finding that the student's February 2024 IEP was appropriate to meet her needs in the LRE.
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]).[8]
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.FAPE – 2024-25 School Year
1. CSE Process
In their request for review, the parents allege that the IHO erred by failing to find that the district's procedural violations of the IDEA did not rise to the level of a denial of a FAPE. Specifically, the parents assert that the February 2024 CSE failed to conduct its own evaluations, engaged in predetermination, and denied the parents the opportunity to meaningfully participate in the development of the February 2024 IEP by failing to incorporate the parents' requests into the IEP. With regard to the parents' claims of procedural violations of the IDEA, the IHO did not err in finding that these claims did not rise to the level of a denial of a FAPE to the student (IHO Decision at pp. 7-10). The IHO correctly concluded that although the CSE relied primarily on evaluative information provided by MBC and the parents, the CSE considered sufficient evaluative information and did not deny the parents the opportunity to participate in the development of the IEP or predetermine their recommendations.[9] In making these determinations related to the sufficiency and consideration of evaluative information, the IHO considered the testimony of the student's mother and the MBC director of education, along with the district's prior written notice (id. at p. 8; Parent Exs. U-V; Dist. Ex. 2). The IHO found that based on the parent's testimony, the CSE was not required to obtain additional evaluative data, and that the district's prior written notice demonstrated that the CSE relied on evaluative information supplied by the parent and MBC in making their recommendations (IHO Decision at p. 8). The IHO stated that "[i]n all areas of suspected disability, the [d]istrict relied upon continuously maintained behavioral data from [MBC,] when generating [the s]tudent's educational program" (id.). With regard to the district's failure to conduct an FBA or develop a BIP, the IHO found that reliance on the data provided by MBC was sufficient and that "[a]dditional evaluations would have been duplicative" (id. at p. 9). Turning to the parents' participation and predetermination claims, the IHO found that the February 2024 CSE included all required participants, that the IEP, prior written notice and testimony aligned to demonstrate that the CSE frequently referred to and deferred to the contributions of the "[p]arent's desired CSE participants incorporating their insights into the document" and that "[t]hese documents reveal[ed] that notes from MBC were critical in developing [the s]tudent's program including present levels of academic performance and management needs"(id. at pp. 9-10). The IHO found that the district "did not ignore the feedback of [the s]tudent's teachers and providers that participated in the duly constituted team"and that "[w]hen combined with the [d]istrict's deference to the MBC's data coordinated and furnished by [the p]arent, [the IHO found] the [d]istrict provided [the p]arent a meaningful opportunity to participate in the CSE meeting … and did not pre-determine the outcome of the meeting" (id. at p. 10). In conclusion, the IHO determined that "based on the documents, the [d]istrict engaged in an interactive process with [the p]arent to create the IEP" (id.; see Dist. Ex. 1 at pp. 1-28, 38; Parent Ex. L).
Next, the parents allege that the IHO failed to hold the district to its burden of proof by finding that the district offered the student a FAPE for the 2024-25 school year, when the district did not present any witnesses during the impartial hearing.
The burden of production and persuasion has been shifted under State law to a district to show that it offered a student a FAPE (Educ. Law § 4404[1][c]).[10] In Endrew F., the Supreme Court held that the "reviewing court may fairly expect [school] authorities . . . to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances"(580 U.S. at 404). However, neither the IDEA, State Law, nor case law provides that a district fails to meet its burden of proof simply because the evidence produced does not consist of witness testimony and instead, each party has the right to "[p]resent evidence and confront, cross-examine, and compel the attendance of witnesses" (34 CFR 300.512 [a][2]). Because there is a right to present documentary evidence, the documentary evidence must be discussed as it relates to the disputed issues because a district could prevail on some or all of the disputed issues related to a FAPE for a student by producing evidence consisting of documentary evidence. An IHO is required to conduct a fact-specific analysis in order to determine whether a district offered the student a FAPE and a district must ensure that the hearing record includes evidence addressing the particular issues raised by the parents in their due process complaint notice. The sufficiency of the evidence presented should be determined after weighing the relative strengths and weaknesses of the parties' evidence in light of the allegations and the relevant legal standards. To be clear, there is no procedural requirement that a district call witnesses at the impartial hearing in order to address the parents' due process complaint notice, especially if the district submits the extensive documentation that is required under the procedures of the IDEA itself.[11] Thus, while documentary evidence alone may be sufficient for the district to meet its burden, that evidence must adequately provide a cogent and responsive explanation for the recommendations in the IEP in the context of the disputed issues related to a FAPE for a student.
In this instance, the IHO's finding that the February 2024 IEP offered the student a FAPE for the 2024-25 school year is unsupported by the hearing record in that the evidence offered by the district failed to provide a cogent explanation for its program recommendations, the details of which will be addressed below.
2. February 2024 IEP
As noted above, February 2024 CSE relied on evaluative information provided by the parents and from MBC. Specifically incorporated in the present levels of educational performance on the February 2024 IEP as evaluation results were February 2023 hospitalization notes; a January 2024 letter from the student's neurologist; December 2023 progress reports in speech-language therapy, PT, OT, and ABA; a December 2023 BIP; and a record review (Dist. Ex. 1 at p. 1; see Parent Ex. F at p. 1).[12]
With respect to the student's academic achievement, functional performance, and learning characteristics, the February 2024 IEP included information from the "[c]lassroom" "[p]rogress [r]eport" that described the student as "an affectionate, happy, and friendly 16-year-old girl" (Dist. Ex. 1 at p. 2). The IEP indicated that the student's strengths included that she followed one and two-step directions, verbally asked "for '1 more minute,'" independently used her augmentative and alternative communication (AAC) device to request preferred items, and completed motor imitation tasks (id. at pp. 1-2).
The February 2024 IEP included that the student worked on skills such as requesting items and a break, counting three to four items, "cooperating for medical exams," sorting items, "washing dishes, and folding clothes," and using her AAC device to "direct actions of others, comment, and terminate activities" (Dist. Ex. 1 at pp. 1, 2). The February 2024 IEP included that the student demonstrated progress with skills such as her ability to ask for "'one more minute,'" "stop[] at a crosswalk," "wait[] at a store," "understand[]" simple directions, understand same/different, and "pick[] up her device and transition[] between rooms" (id.).
The February 2024 IEP indicated that the student "at times produce[d] verbal approximations," and demonstrated a "limited ability to navigate her AAC device more extensively" to "convey more specific wants and needs" (Dist. Ex. 1 at p. 2). In speech-language therapy, the February 2024 IEP indicated that the parents received "AAC training" that facilitated "carry over from school to home" (id.). According to the February 2024 IEP, the student's language comprehension was "at the simple conversation level" and that she had "an understanding of some basic language concepts" (id. at p. 3). The February 2024 IEP indicated that the student had "a profound motor speech deficit" that "compromised [her] ability to imitate consonant and vowel combinations" (id.). The February 2024 IEP also indicated that the student communicated using a combination of "gestures," verbal "approximations of single words," and use of an AAC device (id.).
According to the February 2024 IEP, the student enjoyed sensory activities such as playing with putty, sensory bottles and slime, getting squeezes and tickles, and the IEP included strategies used with the student such as "functional communication training, visual schedules, first/then board," and "differential reinforcement," as well as "[m]ats" that were "added to her surrounding reinforcement chair" that "protect[ed] [the student] from injury" (Dist. Ex. 1 at p. 2).
Regarding the student's needs, the February 2024 IEP documented that the student demonstrated "behavioral difficulties" when reinforcement was terminated, when attending to tasks, and when she was "denied access" (Dist. Ex. 1 at p. 2). The February 2024 IEP reflected school reports that the student struggled to "wait[] for preferred items" and "require[d] . . . supervision" in the bathroom because she "lick[ed] or mouth[ed] the toilet paper" (id. at p. 1). The February 2024 IEP indicated that the student "benefit[ted] from a first/then board, noise canceling headphones, and a weight ball" to deter "her from grabbing," and that she was provided with "a ball to squeeze" when out in the community so that she did not "grab at others" (id. at pp. 1, 2). The February 2024 IEP indicated that the student "present[ed] with maladaptive behaviors which include[d] licking, mouthing, head thrashing, self-touching, and ag[g]ression," as well "physical stereotypy," that "impact[ed] her learning and acquisition of new skills" and "pose[d] a safety risk to herself and others" (id. at p. 2).[13] The February 2024 IEP indicated that the student "require[d] close supervision and an FBA/BIP to address her unsafe behaviors," as well as "support to address her daily living skills" (id. at p. 6). At multiple points throughout the February 2024 IEP the student's behavior was described as a significant concern (see id. at pp. 1, 2, 4, 5, 6). According to the February 2024 IEP, the student's maladaptive behaviors included head-thrashing, licking or mouthing objects, aggression, and self-touching (id.). As a result of these maladaptive behaviors, the February 2024 IEP indicated the student required close supervision, and individual, full-time behavior support paraprofessional services were recommended (id. at pp. 1, 4, 6, 29).
Socially, the February 2024 IEP indicated that the student exhibited "sudden and unpredictable mood shifts," "limited social interactions with peers," and "sensory sensitivity to loud noises" (Dist. Ex. 1 at p. 4). The parents reported that the student was "connected" with the Office for People With Developmental Disabilities and that the parents were interested in "a day habilitation facility" for the student in the future (id. at p. 3). According to the February 2024 IEP, the student's mother shared with the CSE that the student's "safety" was a concern and she required "constant supervision" (id. at p. 4). The parent also shared with the February 2024 CSE that the student had "wandered off" in the past and that "the home [was] equipped with locks and alarms" (id.).
Regarding physical development, in the area of OT the February 2024 IEP indicated that the student had demonstrated improvement in a variety of areas (Dist. Ex. 1 at p. 4). The February 2024 IEP indicated that the student's ability to engage in daily living tasks, follow a cleaning routine, type, and grasp a writing implement had all improved (id.). According to the February 2024 IEP, the student "require[d] increased physical assistance" and "verbal" or "gestur[al] cues" depending on "her arousal level" (id.). The February 2024 IEP indicated that in PT, the student "work[ed] hard," but demonstrated "poor endurance and low energy" along with "decreased tone" (Dist. Ex. 1 at p. 4). In addition, the February 2024 IEP included that the student exhibited "significant delays in gross motor function," and "require[d] prompting and coaxing to" initiate and "complete activities" (id.). According to the February 2024 IEP, the student required "careful[] guard[ing]" when she went up and down stairs due to "a history of rolling and spraining her ankle" (id. at p. 5). The February 2024 IEP included that the student demonstrated "progress toward her goals" including improved strength and "motor planning skills" (id.). The parents reported that the student was "prescribed lithium to address behaviors" and her neurologist "suspected seizure activity but [the student]" was unable to "tolerate testing" (id. at p. 5).
To address the student's needs, the February 2024 CSE recommended 12-month services consisting of a 6:1+1 special class in a specialized school, together with five 45-minute sessions per week of individual OT; five 45-minute sessions per week of individual PT; five 45-minute sessions per week of individual speech-language therapy; three sessions per week of adapted physical education, full-time, individual behavior support paraprofessional services; and iPads with AAC software to be used full-time at home and at school (Dist. Ex. 1 at pp. 28-29, 30, 35). The February 2024 IEP also included a variety of supports to address the student's management needs such as redirection; verbal and nonverbal prompts; simplified directions; multisensory instruction; simplified and repeated directions; sensory and/or movement breaks; token board/reinforcers; ongoing communication between home and school; reward/consequence system; visual structure and minimal distractions within her immediate environment; highly structured and predictable routine; sensory opportunities; collaboration with OT for movement activities and sensory diet; AAC device, visual schedule; transition warnings; verbal praise; choices; positive reinforcement and behavior chart; simplified language; extra cues/prompts; directions provided in small steps; visual supports for academics; visual directions with picture symbols; gestural and verbal redirection; and a first/then board (id. at pp. 5-6).
According to the February 2024 IEP, the February 2024 CSE considered both a 12:1+1 and an 8:1+1 special class in a specialized school and rejected those student-to-teacher classroom ratios because they "d[id] not provide enough support" (Dist. Ex. 1 at p. 38). Further, the February 2024 IEP indicated that the February 2024 CSE also considered a 12:1+(3:1) special class in a specialized school as well as both day and residential State-approved nonpublic school placements but rejected those settings as "too restrictive and limiting" (id.).
The parents allege that the IHO improperly concluded that the district's recommendation for a 6:1+1 special class was the equivalent of the student's program at MBC because the student's MBC classroom included six students. The parents assert that the IHO failed to appreciate that the student's classroom at MBC included six instructors providing 1:1 instruction to six students. The parents further argue that there was no evidence to demonstrate that a 6:1+1 special class in a specialized school was appropriate without the support of 1:1 ABA or 1:1 instruction.
According to the hearing record, the February 2024 CSE reviewed the student's February 2023 medical reports that described her "escalating agitation" exhibited during a medical procedure which required intervention from a behavioral emergency response team (Dist. Ex. 1 at p. 1; see Parent Ex. F at pp. 2-6).[14] The CSE also considered a January 25, 2024 letter prepared by the student's neurologist, in which she wrote that "it [was] medically necessary for [the student] to have a dedicated 1:1 [h]ealth [c]risis [p]araprofessional to ensure her well-being" (Parent Ex. F at p. 1; Dist. Ex. 1 at p. 1). The January 2024 neurologist's letter also recommended in-school 1:1 ABA instruction that included BCBA supervision, as well as the related services of OT, PT, and speech-language therapy, parent counseling and training, "special education support," home-based ABA instruction and speech-language therapy, and use of an assistive technology device (Parent Ex. F at p. 1; Dist. Ex. 1 at p. 1).
The February 2024 IEP also included information from the student's mother and MBC (see Dist. Ex. 1 at pp. 1, 3, 37, 38). As noted above, the February 2024 IEP reflected the parents' opinion that the student required individual ABA services to prevent "regress[ion] and aggress[ion]" and a "highly structured environment with minimal distractions" that "focus[ed] on daily living skills" (Dist. Ex. 1 at p. 3). Additionally, the parents reported that the student "require[d] a paraprofessional trained in ABA due to diagnosis of intensive PICA and highly impulsive behaviors" (id. at p. 37). School reports referenced in the February 2024 IEP indicated that the student's
[p]araprofessional need[ed] to be trained in the aspects of ABA. [The student] require[d] a one-to-one setting that[was] rooted in the principles of Applied Behavior Analysis ABA with the oversight of a board certified behavior analyst [BCBA]. Data need[ed] to be taken on all aspects of [the student's] program and data need[ed] to be analyzed on a daily basis in order to make decisions for her learning. Prompting need[ed] to be systematically faded or put in depending on the trends of that data
(Dist. Ex. 1 at p. 38).
Generally, an IEP is not required to specify the methodologies used with a student and the precise teaching methodologies to be used by a student's teacher are usually a matter to be left to the teacher's discretion—absent evidence that a specific methodology is necessary (Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 [2d Cir. Oct. 29, 2014]; A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 [2d Cir. July 29, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 192-94; M.H., 685 F.3d at 257). As long as any methodologies referenced in a student's IEP are "appropriate to the [student's] needs," the omission of a particular methodology is not necessarily a procedural violation (R.B., 589 Fed. App'x at 576 [upholding an IEP when there was no evidence that the student "could not make progress with another methodology"], citing 34 CFR 300.39[a][3] and R.E., 694 F.3d at 192-94). Indeed, a CSE should take care to avoid restricting school district teachers and providers to using only the specific methodologies listed in a student's IEP unless the CSE believes such a restriction is necessary in order to provide the student a FAPE. However, when the use of a specific methodology is required for a student to receive an educational benefit, the student's IEP should so indicate (see, e.g., R.E., 694 F.3d at 194 [finding an IEP substantively inadequate where there was "clear consensus" that a student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee" of the use of this methodology]). If the evaluative materials before the CSE recommend a particular methodology, there are no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member (i.e. school psychologist) to rely on a broader approach by leaving the methodological question to the discretion of the teacher implementing the IEP (A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017]). The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate the "clear consensus" (R.E., 694 F.3d at 194).
Here, review of the evidence in the hearing record shows that the evaluative information upon which the February 2024 CSE relied described the student's intensive needs and recommended that the student receive an individualized program that used ABA instruction. The district's evidence does not otherwise provide a sufficient response to those methodological and acute behavioral concerns noted in the evaluative data that the district chose to base IEP on. Other than brief mention in the short-term objectives, the February 2024 IEP did not specifically reference ABA techniques beyond the parent's specific request for such a program, but it did document the successful strategies that were used with the student in her current ABA program (see Dist. Ex. 1). Thus I am constrained to hold that the CSE failed to observe the clear consensus in the evaluative information upon which the IEP was based and for reasons unexplained, deviated from that consensus when making its substantive programming determinations.
By solely presenting documentary evidence in this matter that lacked the rationales for the CSE's substantive determinations, the district did not successfully refute the parents' reasons for rejecting the recommendation for a 6:1+1 special class that were firmly rooted in the evidentiary record. Specifically, the district's evidence did not indicate how the student's documented need for 1:1 instruction and intensive supervision would be addressed in a 6:1+1 special class along with a behavior support paraprofessional. Therefore, the district failed to meet its burden to demonstrate that the February 2024 IEP offered the student a FAPE, and the IHO's determination that the district "offered a cogent and responsive explanation" for the recommendations made by the February 2024 CSE must be reversed.[15]
B.Mootness
As it has been determined that the district failed to offer the student a FAPE for the 2024-25 school year, typically the next inquiries would revolve around the appropriateness of the unilateral placement and equitable considerations. However, at this point in the proceeding those issues have been rendered moot.
A dispute between parties must at all stages be "real and live," and not "academic," or it risks becoming moot (Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; see Toth v. City of New York Dep't of Educ., 720 Fed. App'x 48, 51 [2d Cir. Jan. 2, 2018]; F.O. v. New York City Dep't of Educ., 899 F. Supp. 2d 251, 254 [S.D.N.Y. 2012]; Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *12 [E.D.N.Y. Oct. 30, 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30, 2008]; see also Coleman v. Daines, 19 N.Y.3d 1087, 1090 [2012]; Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., V.M. v. N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 119-21 [N.D.N.Y. 2013]; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 280-81 [E.D.N.Y. 2010]; Patskin, 583 F. Supp. 2d at 428-29; J.N., 2008 WL 4501940, at *3-*4; but see A.A. v. Walled Lake Consol. Schs., 2017 WL 2591906, at *6-*9 [E.D. Mich. June 15, 2017] [considering the question of the "potential mootness of a claim for declaratory relief"]). Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007).
Here, the parents seek an order granting the relief sought in the due process complaint notice, consisting of placement at MBC, 25 hours per week of 1:1 ABA instruction in school, two hours per week of BCBA supervision, five 45-minute sessions per week of individual OT, five 45-minute sessions per week of individual PT, five 45-minute sessions per week of individual speech-language therapy, two sessions per month of parent counseling and training, special transportation and limited travel time/short bus ride with a 1:1 bus paraprofessional, assistive technology to include a dynamic display SGD daily in home and at school, 10 hours per week of home-based 1:1 ABA instruction, three hours per week of home-based speech-language therapy, a 1:1 paraprofessional throughout the school day, and monthly AAC training for the parents (Parent Ex. A at p. 13).[16]
The district was required to fund the student's pendency services from the date of the parents' July 5, 2024 due process complaint notice through the pendency of these proceedings in accordance with the pendency implementation form countersigned by the district on September 3, 2024 (Pendency Implementation Form). The student's pendency services were based on an unappealed July 2, 2024 prior IHO's decision. According to the pendency implementation form, the student was entitled to 12-month services consisting of enrollment at MBC, 25 hours per week of ABA, two hours per week of BCBA supervision, five 45-minute sessions per week of individual OT, five 45-minute sessions per week of individual PT, five 45-minute sessions per week of individual speech-language therapy, two sessions per month of parent counseling and training, special transportation with limited travel time with air conditioning, a 1:1 bus paraprofessional, and monthly AAC training for the parents (Pendency Implementation Form; see also Parent Ex. V ¶ 71).
While a student is entitled to remain in his or her stay-put placement during the pendency of a proceeding, this statutory protection is similar to preliminary injunctive relief to protect the student while the proceedings are pending and is distinct from the ultimate relief available to a parent through the due process proceedings (20 U.S.C. § 1415 [j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]). However, in this instance, the parents continued the student's center-based program at MBC, through pendency, for the 2024-25 school year (Parent Ex. V ¶¶ 70-71, 86).
Based on the foregoing, the parents obtained all of the relief they sought in this proceeding through pendency and, therefore, there is no further relief that may be granted and the matter no longer presents a live controversy.
Additionally, a claim may not be moot despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318-23 [1988]; Toth, 720 Fed. App'x at 51; Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040). The exception applies only in limited situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). It must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration" (Murphy v. Hunt, 455 U.S. 478, 482 [1982]; see Knaust, 157 F.3d at 88). Many IEP disputes escape a finding of mootness due to the short duration of the school year facing the comparatively long litigation process (see Lillbask, 397 F.3d at 85). Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]; Toth, 720 Fed. App'x at 51; see Hearst Corp., 50 N.Y.2d at 714-15). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Murphy, 455 U.S. at 482; Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 120 [2d Cir. 2001]). Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence (Russman, 260 F.3d at 120; but see A.A., 2017 WL 2591906, at *7-*9 [finding that the controversy as to "whether and to what extent the [s]tudent can be mainstreamed" constituted a "recurring controversy [that] will evade review during the effective period of each IEP for the [s]tudent"]; see also Toth, 720 Fed. App'x at 51 [finding that a new IEP that did not include the service requested by the parent established that the parent's concern that the prior IEP would be repeated was not speculative and the "capable of repetition, yet evading review" exception to the mootness doctrine applied]).
Some courts have taken a dim view of dismissing a Burlington/Carter reimbursement 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, as it has been determined that the district failed to offer the student a FAPE for the 2024-25 school year and the parents assert that the student's pendency program is the same as her unilateral placement, there can be no further pendency changing determinations in this proceeding and there is no further relief that could be addressed in this matter 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—has been discussed and determined. Rather, the parties' remaining dispute centers around the private special education and related services the parent obtained as self-help to remedy the district's denial of a FAPE to the student. As the FAPE determination has already been addressed and the only issues in this matter concerning the parents' requested relief relates to the funding of the private special education and related services sought by the parents, and 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 determined. Without an outstanding IEP dispute, the questions of the privately obtained special education and related services delivered to the student, and equitable considerations, could be made in a much shorter time frame. Pertinently, however, because there is no longer an outstanding dispute as to the student's educational programming, there is no district action "capable of repetition, yet evading review." The parents have prevailed, the evidence of the adequacy of MBC during the 2024-2025 school year cannot be relied on to assess the adequacy of MBC in a different, future school year because it would not be the same evidence. Assuming that the student was once again placed at MBC because the district again refused to provide 1:1 ABA, there would be a need for different, updated evidence of the student's annual performance, new descriptions of what instruction was actually provided at MBC during the relevant time period, and new reports of how the student progressed, and reliance on administrative due process determinations from prior time periods would be factually and legally unsound.[17]
As such, the issue of whether the special education and related services delivered by MBC are appropriate, and whether equitable considerations favor relief to the parents, unlike FAPE, do not fit into the mootness exception as they are not capable of repetition yet evading review.
Based on the foregoing, the questions of whether the services provided by MBC were appropriate and whether equitable considerations favor relief for the parents are moot as there is no further relief that may be granted.
VII. Conclusion
In summary, the IHO erred in finding that the district offered the student a FAPE for the 2024-25 school year, and I find that the district failed to offer the student a FAPE. However, the parent is entitled to the relief sought any determination as to whether or not the parents unilateral placement of the student at MBC for the 2024-25 school year—which has concluded and has been funded by the district—was appropriate or whether equitable considerations warranted an award of full funding to the parents is unnecessary as these issues have been rendered moot.
I have considered the parties' remaining contentions and find the necessary inquiry at an end.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's decision dated March 14, 2025, is modified by reversing those portions which found that the student was offered a FAPE for the 2024-25 school year.
Footnotes
[1] The parents also alleged violations of section 504 of the Rehabilitation Act of 1973 (section 504), systemic violations of the IDEA, and further claimed that the structure of the due process hearing system was not impartial (Parent Ex. B at p. 5).
[2] The paragraph numbers listed in the parents' July 5, 2024 due process complaint notice are not consecutively numbered on page 12 with paragraphs 65-71 repeating (compare Parent Ex. A at p. 7, with Parent Ex. A at p. 12). Nevertheless, the allegations on page 12 are different from those on page 7.
[3] A prehearing conference was held on August 29, 2024, wherein the IHO and the parties discussed the scope of the parents' due process complaint notice (Aug. 29, 2024 Tr. pp. 1-21). The transcripts for the prehearing conference and the impartial hearing are not consecutively paginated. To the extent it is necessary to cite to the transcript of the prehearing conference, it will be cited by the date and corresponding page number. For purposes of this decision, the transcript for the impartial hearing will be cited by page number only.
[4] The IHO's decision contains one instance in which it was dated March 4, 2025 and two instances in which it is dated March 14, 2025. I will accept the March 14, 2025 date, but the IHO should take great care in signing and dating a decision and avoiding such errors given the intense focus on timelines and their significance in the administrative due process forum. The IHO's decision also contains an apparent typographical error stating that the district presented "one witness to defend against [the p]arent's allegations" (IHO Decision at p. 3). The IHO's decision also stated that the parents "admitted twenty-two (22) exhibits into evidence, labeled A and U" (id.). According to the hearing record, the parents offered 22 exhibits into evidence labeled A through V (see Tr. p. 7; Parent Exs.).
[5] The district prepared a school location letter dated March 8, 2024, which mistakenly contained the heading "School Location Letter for the 2023-2024" school year (Parent Exs. A ¶ 69; B ¶ 16; V ¶ 59). The parent testified that she received the school location letter on March 8, 2024, and was able to tour the school on March 18, 2024, but noted that the heading of the letter was for the wrong school year (Parent Ex. V ¶¶ 59, 62). Because the district timely and successfully notified the parents of the assigned public school and she was able to visit the site, I agree with the IHO that the heading on the school location letter was a clerical error that did not rise to the denial of a FAPE (IHO Decision at p. 13).
[6] The parents do not appeal from the IHO's finding that the February 2024 CSE was duly constituted. Therefore, this finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
[7] The parents also argue that the IHO erred by denying the parents' section 504 claims. However, the district correctly asserts in its answer that an SRO lacks jurisdiction to consider a parent's challenge to an IHO's failure or refusal to rule on section 504, as an SRO's jurisdiction is limited by State law to matters arising under the IDEA and Article 89 of the Education Law (Educ. Law § 4404[2] [providing that SROs review IHO determinations "relating to the determination of the nature of a child's handicapping condition, selection of an appropriate special education program or service and the failure to provide such program"]). Courts have also recognized that the Education Law makes no provision for State-level administrative review of IHO decisions with regard to section 504 (see A.M. v. New York City Dep't of Educ., 840 F. Supp. 2d 660, 672 & n.17 [E.D.N.Y. 2012] [noting that "[u]nder New York State education law, the SRO's jurisdiction is limited to matters arising under the IDEA or its state counterpart"], aff'd, 513 Fed. App'x 95 [2d Cir. 2013]; see alsoF.C. v. New York City Dep't of Educ., 2016 WL 8716232, at *11 [S.D.N.Y. Aug. 5, 2016]). Accordingly, such issue will not be addressed further.
[8] 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).
[9] A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social, and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services' needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]). In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]). A CSE must consider independent educational evaluations whether obtained at public or private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]). However, consideration does not require substantive discussion, or that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight or adopt their recommendations (Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 753 [2d Cir. 2018], citing T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993]; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004] [noting that even if a district relies on a privately obtained evaluation to determine a student's levels of functional performance, it need not adopt wholesale the ultimate recommendations made by the private evaluator], aff'd, 142 Fed. App'x 9 [2d Cir. July 25, 2005]; see Michael P. v. Dep't of Educ., State of Hawaii, 656 F.3d 1057, 1066 n.9 [9th Cir. 2011]; K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 805-06 [8th Cir. 2011]; Evans v. Dist. No. 17, 841 F.2d 824, 830 [8th Cir. 1988]; James D. v. Bd. of Educ. of Aptakisic-Tripp Community Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 818 [N.D. Ill. 2009]). District personnel are permitted to "'prepare reports and come with preformed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions'" (DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18 [S.D.N.Y. Jan. 2, 2013] [alternation in the original], quoting M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 506; [S.D.N.Y. 2008]; see B.K., 12 F. Supp. 3d at 358-59 [holding that "active and meaningful" parent participation undermines a claim of predetermination]). Thus, suspicion of a preformed opinion is not enough, especially without some indication from the parents about what information the CSE refused to consider. With regard to participation, the IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 [S.D.N.Y. Sept. 23, 2015]; A.P., 2015 WL 4597545 at *8, *10; E.F. v. New York City Dep't of Educ., 2013 WL 4495676 at *17 [E.D.N.Y. Aug. 19, 2013] [stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"]; P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] [noting that "[a] professional disagreement is not an IDEA violation"]; Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] [finding that "[m]eaningful participation does not require deferral to parent choice"]). When determining whether a district complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of their child's IEP (Cerra, 427 F.3d at 192). Moreover, "the IDEA only requires that the parents have an opportunity to participate in the drafting process'" (D.D-S., 2011 WL 3919040, at *11 [E.D.N.Y. Sept. 2, 2011], quoting A.E. v. Westport Bd. of Educ., 463 F. Supp. 2d 208, 216 [D. Conn. 2006]; see T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009] [noting that the IDEA gives parents the right to participate in the development of their child's IEP, not a veto power over those aspects of the IEP with which they do not agree]).
[10] Ordinarily, 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 v. Weast, 546 U.S. 49, 58 [2005]; Reyes v. New York City Dep't of Educ., 760 F.3d 211, 219 [2d Cir. 2014]; M.H., 685 F.3d at 225 n.3; 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]).
[11] If a district intends to rest its case on documentary evidence alone, it is prudent for the district to offer into evidence all documentation pertaining to the evaluation of the student and the CSE's recommendations, including prior written notices (34 CFR 300.503[a]; 8 NYCRR 200.5[a]; see also L.O. v. New York City Dep't of Educ., 822 F.3d 95, 110-11 [2d Cir. 2016] [discussing the consequences of a CSE's failure to adequately document evaluative data, including that reviewing authorities might be left to speculate as to how the CSE formulated the student's IEP]).
[12] The prior written notice dated March 8, 2024 stated that the February 2024 CSE relied on "[r]eports [t]o determine needs" with a corresponding date of February 15, 2024 (Dist. Ex. 2 at p. 4).
[13] The February 2024 IEP included that an "ice pop schedule" was implemented that resulted in a decrease in licking behavior (Dist. Ex. 1 at p. 2).
[14] The February 2024 IEP noted that MBC was "teaching [the student] to tolerate doctor visits, which help[ed] her in real-life visits" (Dist. Ex. 1 at p. 3).
[15] This is not the first time that the district has been asked to address this. The IHO signed a pendency order on September 3, 2024, establishing the basis for pendency was a prior unappealed IHO decision dated July 2, 2024 which mandated that the student received 25 hours per week of ABA for a 12-month school year (Sept. 3, 2024 Interim Order).
[16] At the impartial hearing, the parents did not seek funding for home-based services. The parents sought funding for the student's center-based program at MBC (Parent Ex. V ¶ 88; see Nov. 20, 2024 Tr. p. 61).
[17] If it were a permissible, sound approach, then reliance on the parties' similar disputes in IHO Exhibit VIII, the IHO's unchallenged, final and binding determinations regarding MBC for the 2023-24 school year, or yet another similar IHO's final and binding determination of MBC for the 2022-23 school year, would yield the answer in this proceeding with little or no regard of the updated evidence of the 2024-25 school year. However, once stay-put was established in the private programming, the continued resolution of each subsequent school year on the merits in each due process proceeding has changed nothing in the parties' intractable positions, leaving only one real question—namely whether the district is required to pay. And parties already agree that it does.