STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-244
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, 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. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which found that respondent (the district) offered the student a free appropriate public education (FAPE) and denied the parent's request for funding of the student's tuition costs at the Auditory Oral School of New York (AOSNY) 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
The parties' familiarity with this matter is presumed, and therefore the facts and procedural history of this case and the IHO's decision will not be recited in detail. Briefly, the student has received a diagnosis of "moderate sloping to severe bilateral sensorineural hearing loss" (Dist. Ex. 2 at p. 3).
A Committee on Preschool Special Education (CPSE) convened on May 4, 2023, found the student eligible for special education and related services as a preschool student with a disability, and recommended the student receive 12-month services consisting of a 12:1+2 special class placement and four 30-minute sessions per week of individual speech-language therapy (Parent Ex. B at pp. 1, 13-14). The May 2023 CPSE also recommended special transportation and an assistive technology device (FM unit) for the student (id. at pp. 1, 13, 16). The May 2023 CPSE recommended the student attend an early childhood education program selected by the parent and "School Strivight" was listed in the additional information section of the May 2023 IEP as the childcare location selected by the parent (id. at p. 1). The hearing record indicates the student attended AOSNY since at least the 2022-23 school year (Parent Exs. D; E; F).[1]
A CSE convened on March 26, 2024 for the student's "turning 5" meeting and found the student eligible for special education as a student with a hearing impairment (Dist. Ex. 2 at pp. 1, 19).[2] The March 2024 CSE developed an IEP for the student with a projected implementation date of September 5, 2024 which recommended that the student attend a 12:1+1 special class for all subjects, and receive related services of two 30-minute sessions per week of individual hearing education services and four 30-minute sessions per week of individual speech-language therapy (id. at pp. 14-15). In addition, the CSE recommended hearing assistive technology (an FM unit) for the student to use daily (id. at p. 15). The March 2024 CSE determined that the student did not need any special transportation accommodations or services (id. at p. 19).
In a prior written notice dated May 17, 2024, the district summarized the recommendations of the March 2024 CSE, and informed the parent of the public school site the student was assigned to attend for the 2024-25 school year beginning September 2024 (Dist. Ex. 5).
In an August 22, 2024 letter, the parent, through her attorney, expressed her disagreement with the recommendations made by the March 2024 CSE and informed the district of her intention to unilaterally place the student at AOSNY and seek reimbursement or direct payment from the district for the student's unilateral placement at AOSNY (Parent Ex. C).
On August 28, 2024, the parent signed a contract with AOSNY for the 2024-25 school year (Parent Ex. G).[3] The contract outlined the cost of attendance at AOSNY, including $91,300 for a "September-June Classroom Placement" and a $300 registration fee, for a yearly total tuition cost of $91,600 (id.). The contract also included paraprofessional services for the student and four sessions per week of "speech" at a cost of $16,000 (id.). The student began attending AOSNY for the 2024-25 school year on September 5, 2024 (Parent Ex. I).
A. Due Process Complaint Notice and Post-Dating Events
In a due process complaint notice dated September 10, 2024, the parent alleged that the district failed to offer the student an appropriate placement for the 2024-25 school year, and therefore the parent had to place the student at AOSNY (Parent Ex. A at p. 5). According to the parent, the March 2024 CSE recommended a 12:1+1 special class instead of a 12:1+2 special class and this new program would not have provided the student with enough educational support (id. at pp. 2-3). In addition, the parent asserted that the district inappropriately "removed" summer services and transportation from the student's program for the 2024-25 school year (id. at p. 5). The parent also asserted that the assigned public school was inappropriate for the student (id. at p. 4). The parent requested, among other things, an award of direct tuition payment to AOSNY for the student's attendance at AOSNY for the 2024-25 school year (id. at p. 6).
In an updated contract, signed on December 1, 2024, the parties added one session per week of counseling to the student's services at a cost of $2,500 (Parent Ex. H).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on February 11, 2025 (Tr. pp. 21-57).
In an interim order on pendency dated January 13, 2025, the IHO found that the parties agreed that the student's pendency program was based on the May 4, 2023 CPSE IEP (Interim IHO Decision at p. 4).[4] Although the parties disagreed about the location of where to implement the student's pendency program, the IHO found that the district did not exercise "its right or determined a pendency placement for the student" and that the district had not attempted to implement pendency at any alternative location (id. at pp. 5-6). Thus, the IHO ordered the district to provide the student, during the pendency of the matter, with special education and related services in accordance with the May 4, 2023 CPSE IEP, which included a 12:1+2 special class five hours per day, four 30-minute sessions per week of individual speech-language therapy, daily use of an FM unit, special transportation, and the IHO also ordered that these services be provided to the student during July and August (id. at pp. 6-7).
In a final decision dated March 20, 2025, the IHO found that the district offered the student a FAPE for the 2024-25 school year (IHO Decision at pp. 4-6). More specifically, the IHO determined that the district met its burden to demonstrate that the March 2024 CSE developed a procedurally and substantively appropriate IEP to confer an educational benefit to the student in the least restrictive environment (LRE) (id.). The IHO also dismissed the parent's arguments related to the assigned public school as "speculative" and "unavailing" (id. at pp. 5-6). The IHO disagreed with the parent's representative's argument that the district needed to explain why the program recommended by the March 2024 CSE was different from the program recommended for the student by the CPSE (id. at p. 6). The IHO found that the CPSE and CSE were wholly distinct committees, with different goals and concerns (id.). Additionally, the IHO found that the student was not entitled to extended school year services because there was insufficient evidence to show that the student would experience substantial regression (id. at p. 7). Thus, the IHO denied the parent's request for direct funding or reimbursement for the student's unilateral placement at AOSNY for the 2024-25 school year (id. at p. 8).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in finding that the district offered the student a FAPE for the 2024-25 school year. The parent argues that the district did not provide any explanation regarding why the March 2024 CSE changed the student's special education program and placement from the prior year's program and district placement at AOSNY. According to the parent, the district failed to present any testimony to explain the change in program and placement, and instead impermissibly relied on documentary evidence. Additionally, the parent generally alleges that there were substantive and procedural violations that resulted in a denial of a FAPE for the 2024-25 school year. The parent requests that the IHO's decision be reversed and an order directing the district to fund the student's unilateral placement at AOSNY. In the alternative, the parent requests that the matter be remanded.
In an answer, the district asserts that the parent's appeal should be dismissed because the parent failed to comply with practice regulations.[5] The district argues that the IHO correctly found that the district offered the student a FAPE for the 2024-25 school year. Alternatively, the district argues that the parent failed to demonstrate the appropriateness of the unilateral placement at AOSNY and that equitable considerations do not favor the parent. Finally, the district argues that the IHO's denial of the parent's claim for special transportation was not appealed.
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]).[6]
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 State Regulations
First I will address the district's contention that the parent's appeal should be dismissed because the request for review was verified before the document was completed.
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 the dismissal of a request for review by an SRO (8 NYCRR 279.8[a]-[b]; 279.13; see 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]). However, "judgments rendered solely on the basis of easily corrected procedural errors or 'mere technicalities,' are generally disfavored" (J.E. v. Chappaqua Cent. Sch. Dist., 2015 WL 4934535, at *4-*6 [S.D.N.Y. Aug. 17, 2015], quoting Foman v. Davis, 371 U.S. 178 [1962]).
According to practice regulations, all pleadings and papers submitted to an SRO must "be endorsed with the name, mailing address, and telephone number of the party submitting the same or, if a party is represented by counsel, with the name, mailing address, and telephone number of the party's attorney" (8 NYCRR 279.7[a]). All pleadings must be signed by an attorney, or by a party if the party is not represented by an attorney (8 NYCRR 279.8[a][4]).
The practice regulations require verification of all pleadings submitted to an SRO in connection with an appeal (see 8 NYCRR 279.7[b]). When the appeal is taken by the student's parent or parents, "[t]he request for review shall be verified by the oath of at least one" such petitioner (see id.). Verification of a document entails a sworn statement that the affiant knows the contents of the document and knows the contents of the document to be true; or, with respect allegations made "upon information and belief," the affiant believes the allegations to be true (see NYCRR 279.7[b][1]).
The district argues that the parent's affidavit of verification was subscribed and sworn by the parent on April 4, 2025, and that on April 29, 2025, the parent served the request for review, which was not dated, and the notice of request for review, which was dated April 15, 2025 (see Req. for Rev. at ¶ 6).[7] The district argues that on April 4, 2025 the parent could not have verified the contents of the notice of request for review dated April 15, 2025 because that document was not yet completed. However, the verification was not of the April 2015 notice of request for review and was of the request for review, which, as the district also highlights, was left undated. The district argues that the request for review was likely also completed on April 15, 2025 and thus the parent could not have verified the request for review on April 4, 2025. While the district raises legitimate concerns about the timing and verification of the parent's appeal, in this instance, I decline to exercise my discretion to dismiss based solely on the district's speculation. However, the parent's attorney is warned that it is best practice for an attorney to date documents to avoid speculation regarding when a document was prepared.
2. Scope of Review
State regulations governing practice before the Office of State Review provide 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, a request for review must provide 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" as well as "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][2]-[3]). Generally, 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]; 279.13; 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]).
Here, the parent's main argument on appeal centers around the allegation that the IHO erred in finding the district offered the student a FAPE because the district could not have met its burden of proof by presenting only documentary evidence regarding its program and placement recommendations for the student's 2024-25 school year. The parent does not otherwise identify error with the IHO's precise rulings and instead continues to argue on appeal that the district failed to explain why it changed the student's placement recommendation when she has "severe auditory processing delays that warranted funding at AOSNY." In the request for review, the parent also broadly alleges that there were "procedural and substantive violations in the IEP [p]rocess" and alleges that the assigned public school site was not appropriate and would not have been able to address the student's auditory processing needs.
State level review of an IHO's determination is not simply the relitigation of all prior arguments conceivably leveled against a party during an impartial hearing; on the contrary, it is an appellate administrative process in which the allegations must be brought forth by the party and clearly aimed at the findings in the IHO's decision (see 8 NYCRR 279.4[a]; 279.8[c][2]; cf. DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 [S.D.N.Y. 2009] [articulating a similar expectation for objections to a magistrate's report and recommendation]). Mere disagreement with the IHO's findings is not sufficient to preserve an issue for appeal and, while I review the evidence in the hearing record in its entirety, my role does not include inferring potential arguments based on the parent's overbroad, conclusory allegations that do not specify how the IHO erred.
With respect to unaddressed findings set forth in the IHO decision, the IHO specifically found that the March 2024 IEP "was based on sufficient evaluative data," "appropriately reflected the [s]tudent's present levels of academic achievement and functional performance," included appropriate and measurable annual goals that addressed the student's areas of need, and included a description of parental concerns and an explanation of why the various recommendations for a 12:1+1 special class and related services of hearing education services and speech-language therapy were made (IHO Decision at pp. 4-5).[8] Rather than attacking any of these findings directly, the parent only challenges the district's presentation of documentary evidence as a means of asserting that the district did not explain it's recommendations. In particular, the IHO found that the April 2024 IEP explained the recommended program and related services and a review of the April 2024 IEP shows that the IEP included an explanation for its recommendations (IHO Decision at p. 3; Dist. Ex. 2 at pp. 3, 21). Specifically, the IEP notes that the 12:1+1 special class recommendation would have provided the student with a structured learning environment, speech-language therapy would have addressed the student's expressive and receptive language needs, and hearing education services would have helped the student navigate the classroom learning environment (id. at p. 3). Rather than simply asserting on appeal that "there was absolutely no explanation, let alone a cogent and responsive explanation, for the CSE's program and placement recommendations," it was incumbent on the parent on appeal to assert why the IHO erred in determining that the April 2024 IEP included an explanation for its recommendations and why the IHO erred in finding the April 2024 IEP's explanation sufficient. As the IHO made specific findings regarding the April 2024 IEP, including that it explained the recommendations contained therein, and the parent has not set forth a specific argument contesting the IHO's determinations on the sufficiency of the IEP or even the explanation contained within the April 2024 IEP, the parent's appeal is not in compliance with practice standards.
Accordingly, based on the above, the parent's lack of compliance regarding the requirements for pleading specificity will circumscribe the issues to be addressed in this appeal to those regarding the district's reliance on documentary evidence and whether the assigned public school could address the student's auditory processing delays. While the parent generally argues there are substantive and procedural violations, this statement on its own is too broad to meaningfully challenge any specific findings of the IHO (see Bd. of Educ. of Harrison Cent. Sch. Dist. v. C.S., 2024 WL 4252499, at *13 [S.D.N.Y. Sept. 20, 2024] [finding that "[m]erely asserting that the IHO" erred in finding that the district did not offer the student a FAPE "does not raise the precise rulings presented for review"]; W.R. v. Katonah Lewisboro Union Free Sch. Dist., 2022 WL 17539699, at *9 [S.D.N.Y. Dec. 7, 2022] [same]).
3. Reliance on Documentary Evidence
I will now address the parent's argument that the IHO erred in finding the district offered the student a FAPE for the 2024-25 school year because the district only presented documentary evidence.
As noted above, 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]).[9] 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 solely 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 parent's due process complaint notice, especially if the district submits the extensive documentation that is required under the procedures of the IDEA itself.[10] Thus, the parent's argument suggesting a bright line rule requiring witness testimony is rejected.[11]
B. Assigned Public School Site
The parent's remaining contentions set forth in her request for review concern whether the assigned public school site was appropriate.
Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88). The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (id. at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B., 589 Fed. App'x at 576).[12] However, a district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]). The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP" (M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 5-6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. Mar. 16, 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. Dec. 30, 2015]). Such challenges must be "tethered" to actual mandates in the student's IEP (see Y.F., 659 Fed. App'x at 5). Additionally, the Second Circuit indicated that such challenges are only appropriate, if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244). In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP (see M.E. v. New York City Dep't of Educ., 2018 WL 582601, at *12 [S.D.N.Y. Jan. 26, 2018]; Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]). Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate (K.F. v. New York City Dep't of Educ., 2016 WL 3981370, at *13 [S.D.N.Y. Mar. 31, 2016]; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016]).
According to the March 2024 IEP, the student "present[ed] with significant receptive and expressive language delays, characteristics of an auditory processing disorder, as well as reduced speech intelligibility," secondary to her bilateral hearing loss (Dist. Ex. 2 at p. 3). The student was able to remove her hearing aids independently, and had progressed in her ability to replace them (id. at p. 2). Teacher report reflected in the IEP indicated that the student was easily distracted, had difficulty with higher level thinking, exhibited some basic pre-academic skills, and answered simple yes or no questions, and followed two-step directions inconsistently (id. at p. 1). Parent concerns reflected in the IEP included that the student had difficulty focusing on lessons and required a lot of repetition, and the teacher remarked that the student did not like to repeat herself and had difficulty sitting through a whole lesson (id. at p. 2). The CSE identified that the student needed preferential seating, repetition/modeling, wait time when answering a question, and use of a personal hearing assistive technology device in conjunction with her hearing aids at school (id. at pp. 3, 15). Overall, the CSE recommended that the student be placed in a 12:1+1 special class with related services (id. at p. 15).
In this instance, the parent's objections to the district's recommended assigned school site are impermissibly speculative as there is no evidence in the hearing record that the assigned school site could not meet the student's needs and implement the March 2024 IEP (Parent Ex R ¶ 10; see e.g., N.M. v. New York City Dep't of Educ., 2016 WL 796857, at *8 [S.D.N.Y. Feb. 24, 2016] ["[A] claim based on what a school 'would not have' done—as opposed to a claim based on what the school could not do—is speculative and barred under R.E. and M.O."]). The parent testified that she visited the assigned public school and some teachers advised her that the student's class would have had a mix of students with various disabilities and delays, and that the teachers did not anticipate enrollment of another student with a similar hearing impairment in the class (Parent Ex. R ¶ 10). Further, the parent was informed that it was "possible" that the class may have been an integrated co-teaching (ICT) classroom with "close to thirty children" (id.).
Initially, to the extent that the parent asserts that the student would not have been placed in a 12:1+1 special class, this claim is inherently speculative as the parent only asserts that the teachers she spoke with at the school were "unaware" of the classroom structure and it was "possible" the class could have had close to 30 students (Parent Ex. R ¶ 10). This is speculative, as "a parent's 'own testimony that [school] officials made comments to her indicating an inability to effectively serve [the student] do not come close to proving that the school was ‘factually incapable’ of implementing the IEP" (G.S., 2016 WL 5107039, at *15, J.D., 2015 WL 7288647, at *16, rev'd on other groundsJ.D. v. New York City Dept. of Educ., 677 Fed. Appx. 709 [2d Cir. 2017]).
Turning to the parent's argument that the student would not have been educated with a suitable or functional peer group, the information gleaned by the parent during her visit to the assigned school does not overcome the speculative nature of such a claim where the student never attended the proposed school placement. When a student has not yet attended the proposed classroom at issue, claims related to functional grouping tend to be speculative in nature (J.C., 643 Fed. App'x at 33 [finding that "grouping evidence is not the kind of non-speculative retrospective evidence that is permissible under M.O." where the school possessed the capacity to provide an appropriate grouping for the student, and plaintiffs' challenge is best understood as "[s]peculation that the school district [would] not [have] adequately adhere[d] to the IEP"], quoting R.E., 694 F.3d at 195; see M.O., 793 F.3d at 244-45). Various district courts have followed this precedent post M.O. (G.S., 2016 WL 5107039, at *15; L.C. v. New York City Dep't of Educ., 2016 WL 4690411, at *4 [S.D.N.Y. Sept. 6, 2016] ["Any speculation about which students [the student] would have been grouped with had he attended [the proposed placement] is just that—speculation. And speculation is not a sufficient basis for a prospective challenge to a proposed school placement"]).
In view of the foregoing, the parent cannot prevail on her claims regarding implementation of the March 2024 IEP at the assigned public school site. It is undisputed that the parent rejected the offered program and assigned public school site and instead chose to enroll the student in a nonpublic school of her choosing prior to the time the district became obligated to implement the March 2024 IEP (see Parent Exs. A; C; G). Accordingly, as the student never attended the assigned public school site pursuant to the March 2024 IEP, I agree with the IHO that the parent's claims are without merit. Any conclusion that the district would not have implemented the student's IEP or the assigned public school site could not meet the student's needs would necessarily be based on impermissible speculation, and the district was not obligated to present retrospective evidence at the impartial hearing regarding the execution of the student's program or to refute the parent's claims (R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]; F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 9 [2d Cir. Jan. 8, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 87 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 187 & n.3]).
VII. Conclusion
In conclusion, a review of the hearing record does not support the parent's assertion that the IHO erred in determining that the district offered the student a FAPE for the 2024-25 school year.
I have considered the parties' remaining contentions and find them unnecessary to address in light of my decision above.
THEAPPEALISDISMISSED.
Footnotes
[1] AOSNY is a State-approved preschool special education program.
[2] The student's eligibility for special education as a student with a hearing impairment is not in dispute (see 34 CFR 300.8[c][5]; 8 NYCRR 200.1[zz][5]).
[3] The contract was written on "Strivright – Auditory Oral School of NY" letterhead (Parent Ex. G).
[4] There appears to be a typographical error in the IHO's pendency order. The IHO erroneously stated that "the [p]arties agree that [the] [s]tudent's pendency lies in the May 28, 2024 IEP" (Interim IHO Decision at p. 4). However, elsewhere in the decision, the IHO correctly refers to the student's May 4, 2023 IEP (see id.).
[5] The district references a "cross-appeal" in several instances in its own pleading; however, the district's arguments constitute defenses and not a cross-appeal because the district does not seek reversal or modification of the IHO's decision dated March 20, 2025. Accordingly, the undersigned has treated the pleading as an answer; however, the district is cautioned to review the practice regulations in Part 279 and should not expect excusal for future failures to comply with the practice regulations in Part 279.
[6] 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).
[7] In its answer, the district incorrectly refers to the parent's documents as being dated in the year 2024, when a review of the documents themselves indicate they are all dated in year 2025.
[8] Moreover, the parent has not appealed from the IHO's finding that the student was not entitled to extended school year services. Accordingly, this finding has become final and binding on the parties and will not be further discussed (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]). Similarly, the parent has not specifically appealed from the IHO's failure to rule on her claim that the district erred by not providing the student with special transportation; therefore, the parent's request for special transportation is deemed abandoned and will not be further addressed (8 NYCRR 289.8[c][2], [4]).
[9] 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]).
[10] If the parents believed that there were particular facts or events during the CSE process that were relevant that should have come to light and were not captured by or, more importantly, contradicted the documentary evidence offered by the district, the parents, as participants in the impartial hearing process, were free to try to establish a different version of the facts, offer contrary documentation, or "compel the attendance of witnesses and . . . confront and question all witnesses at the hearing" including but not limited to the district personnel that participated in the May 2023 CSE meeting (8 NYCRR 200.5[j][3][xii]). The IHO was authorized to issue subpoenas for this purpose if necessary (8 NYCRR 200.5[j][3][iv]).
[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 district is required to implement the IEP and parents are well within their rights to compel a non-compliant district to adhere to the terms of the written plan (20 U.S.C. §§ 1401[9][D]; 1414[d][2]; 34 CFR 300.17[d]; 300.323; 8 NYCRR 200.4[e]).