Application of a Student with a Disability

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-245

Application of a STUDENT WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education

Appearances:

Law Office of Courtney L. Haas, LLC, attorneys for petitioners, by Courtney L. Haas, Esq.

Liz Vladeck, General Counsel, attorneys for respondent, by Nicole Daley, 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 the decision of an impartial hearing officer (IHO) which denied their request to be reimbursed for the costs of their son's tuition at Reach for the Stars Learning Center (RFTS-LC) for the 2024-25 school year.  Respondent (the district) cross-appeals, arguing that RFTS-LC was not an appropriate unilateral placement for the student for the 2024-25 school year.  The appeal must be sustained.  The cross-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]).^[1]  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[a]).  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

In this case, evidence in the hearing record reflects that on May 3, 2024, a CSE convened to conduct the student's "[t]urning 5 IEP" meeting in preparation for his transition from receiving CPSE (preschool) services to receiving CSE (school-age) services and to develop an IEP for the 2024-25 school year (kindergarten) (see Dist. Exs. 1 at pp. 1, 29; 8 ¶ 5).  In advance of the May 2024 CSE meeting, the district evaluated the student by completing a March 2024 social history update, a March 2024 classroom observation, and an April 2024 psychological evaluation (see generally Dist. Exs. 3-5).

As reflected in the March 2024 social history update, the parent reported that the student had received the diagnosis of an autism spectrum disorder, he was attending school, and he was then-currently receiving the following special education program: individual special education itinerant teacher (SEIT) services, 10 times per week; three sessions per week of speech-language therapy (two individual sessions and one group session); two sessions per week of individual occupational therapy (OT); two sessions per week of individual physical therapy (PT); and one 60-minute session per month of parent counseling and training services (see Dist. Ex. 5 at p. 1).^{[2], [3], [4]}  It was noted in the social history that the student was toilet trained, and at home he could follow one-to-two step directions (id. at pp. 1-2).  It was also noted that, at times, the student threw tantrums at home; however, as reported by the parent, his tantrums were "age appropriate and not more than the norm" (id. at p. 2).  It was also reported that he did not "present with aggressive behavior" at home (id.).

According to the parent, within the classroom the student could focus for short periods of time (5 to 10 minutes) and longer if engaged in a preferred activity (Dist. Ex. 5 at p. 3).  The parent also indicated that the student was "very self-directed" and could become distracted if he was not interested in the lesson at school (id.).  According to the parent, the student followed directions at school "with prompting" (id.).  In the area of transitioning, the parent indicated that he could do so but "c[ould] have difficulty if he ha[d] to end a preferred task" (id.).  According to the parent, the student recognized "some" letters but did not know "letter sounds"; recognized "some" numbers, could count up to 11 or 12, and engaged in one-to-one correspondence; could identify "easy shapes and colors"; independently used scissors; colored with crayons; and had "good" gross motor skills but, at times, had difficulty with jumping (id.).

Finally, with respect to language and communication skills, the parent indicated that the student spoke "very little" and used one to two words to "express needs and wants" (Dist. Ex. 8 at p. 3).  It was noted, however, that he did not typically present with frustrations around his speech deficits (id.).  As reported by the parent, the student could obtain things he needed or wanted either by himself or by expressing himself to others; he could indicate when he needed to use the bathroom; he required assistance dressing, at times, but could undress by himself; he needed assistance brushing his teeth and bathing; and he had been described as "sensory seeking" and required sensory input as he tended to "touch [or] squeeze things" (id.).

According to the March 2024 classroom observation report, the student was attending a "full day" preschool program in a classroom consisting of 14 students, one teacher, and one assistant (see Dist. Ex. 3 at pp. 1-2).  The classroom observation report indicated that the student had a SEIT in the classroom "with him all day, each school day" (id.).  It was also noted that the classroom included a "couple other adults" during the observation (id.).

As part of the classroom observation, the district staff who conducted the observation spoke to the student's classroom teacher about a "recent update from the [preschool] Special Education unit," dated January 2024 (January 2024 progress report) (see Dist. Ex. 3 at p. 1).^[5]  It was noted in the January 2024 progress report that the student struggled to retain the small skill gains that he achieved each week when he returned from a weekend break (id.).  Specifically, the January 2024 progress report noted that the student lost his "'compliance'" skills over weekend breaks and "'Mondays [we]re often spent relearning compliance skills up to the level he was performing the week before'" (id.).  According to the January 2024 progress report, the student experienced "'significant regression'" after the "longer 'holiday break'" (id.).  The student's teacher reported that, overall, since September 2023, the student had not made significant strides in his key skill areas (id.).

As noted in the March 2024 classroom observation report, the student's teacher described him as "mostly 'non-verbal' and requir[ing] the full day assistance of his SEIT to remain safe and as minimally disruptive to the other [students] as possible ('[the student] cannot be left alone')" (Dist. Ex. 3 at p. 1).  The teacher also reported that the student did not engage with other students and could be "distracting" to the other students "when he bec[ame] upset" (id.).  The teacher further reported that the student would "'throw himself on the floor' when angry [or] upset" and screamed or cried at "many points in each school day" (id.).  The student enjoyed "legos and other building materials," however, he did not sit with the other students during circle time and, instead, usually sat "away from his classmates on his SEIT's lap to have any interactions with the classroom activities" (id.).  According to the teacher, the student was not toilet trained and did not "offer consistent gestures" to identify his wants or needs, noting specifically that, "'many times we don't know what he wants [or] needs'" (id.).

Resuming the classroom observation, the classroom teacher proceeded with "'circle time,'" and, consistent with the information discussed with the district observer, the student sat on his SEIT's lap and to the "right of the main carpet" where the other students had gathered (Dist. Ex. 3 at p. 1).  During circle time, the SEIT took the student to the bathroom and then carried him back to circle time (id.).  As noted in the observation report, the student "cried a bit as they sat back down" (id.).  The SEIT was observed to "move [the student's] hands to mimic" the students participating in circle time, and, although the student "resisted the SEIT's efforts," he "appeared to calm down with the light pressure of being held" (id.).  According to the observation report, the student "appeared to struggle to remain calm" during circle time as others participated (id.).

When circle time ended and the teacher asked students to wash their hands, it was noted that the SEIT gave the student a few moments to sit on the meeting rug after the other students proceeded to the sink (Dist. Ex. 3 at p. 2).  At that time, the student immediately laid down on the carpet and "stretched out a bit," then he began to cry or complain when the SEIT took him to wash his hands (id.).  The student attempted to throw himself on the ground, cried more when the water went on, and the SEIT struggled to wash his hands (id.).  When asked to sit at his table for snack, the student continued to cry and resist; the report noted that the SEIT did an "excellent job remaining calm and firm" with the student and that he then sat on her lap for snack (id.).  The student refused snack and tried to push away from the table; when reoffered the snack, the student pushed the SEIT's hand away but remained at the table with the SEIT (id.).

Summarizing the observation, the report reflected information from the January 2024 progress report, including that the student presented with "'cognition, social/emotional/behavioral and motor deficits,'" as well as "'delays in the areas of [activities of daily living skills]" (Dist. Ex. 3 at p. 2).  In addition, it was noted that the student currently received SEIT services "'utilizing [applied behavior analysis (ABA)] techniques to facilitate his learning of the necessary skills'" (id.).  Given the regression noted by the student's teacher, the "school recommended that [the student] have a 12 month school program" and "[a]ll agree[d] that [the student] w[ould] require continued intensive special education programs [and] support as he enter[ed] kindergarten in the fall of 2024" (id.).

Next, the April 2024 psychological evaluation reflected the administration of the following to the student: the Wechsler Preschool and Primary Scales of Intelligence—Fourth Edition (WPPSI-IV) (selected subtests attempted); the Kaufman Survey of Early Academic and Language Skills (K-SEALS) (selected subtests attempted); the Vineland Adaptive Behavior Scales—Third Edition (Vineland-3); and the Gilliam Autism Rating Scale—Third Edition (GARS-3) (see Dist. Exs. 4 at pp. 1-2; 6 at pp. 1-32).^[6]  Notably, due to the student's "significant deficits in language skills, and limited response, engagement, and attention," the evaluator was unable to determine standard scores on the WPPSI-IV (Dist. Ex. 4 at p. 2).  As the evaluating psychologist further noted, the "activities required a formatted and standardized administration that m[ight] have impacted upon his comprehension of the activity and his prerequisite in starting a task"; as a result, the student's performance was "best described in a qualitative manner" (id. at p. 2).

Overall, the psychologist estimated that the student's "verbal and nonverbal levels" fell "significantly below age expectancy" (Dist. Ex. 4 at p. 5).  The psychologist found that the student demonstrated "[n]otable delays" in speech and language processing, pragmatic language skills, functional communication, and social and adaptive skills and deficits in sensory processing, self-regulatory skills, and in attention and focusing, all of which affected the student's functioning (id.).  The psychologist also noted that, "with modeling and repeated prompting," the student "displayed the ability to label [some pictures] with one word or word approximations," he could "point to some pictures when asked to find the item, and point[ed] to and label[ed] colors" (id.).  In addition, the psychologist indicated that the student could build with two or three blocks and match some pictures; he could also count by ones to six (id.).  Based on the administration of the Vineland-3, the student's adaptive behavior composite fell in the low range, with communication and socialization domains also in the low range (id.).  With regard to his daily living skills, the student's scores fell in the moderately low range; his motor skills fell within the adequate range (id.).  The psychologist also reported that, within the "subdomain level, [the student] [wa]s reported to be functioning significantly below age expectancy and earned the lowest scores in expressive language and written skills, as well as in play and leisure subdomain[s]" (id.).

In light of the student's testing results, the psychologist recommended the following to address his areas of deficit: a smaller group instructional support setting; multimodal instructional approach; redirection and refocusing; prompting and cueing to promote engagement and verbal expression; repetition, simplification, and modeling of directions and instruction; sensory activities and objects for sensory input; and support and encouragement during challenging tasks or transitioning to a nonpreferred or novel activity (see Dist. Ex. 4 at p. 5).

Based on the information presented at the meeting, the May 2024 CSE found the student eligible to receive special education as a student with autism and recommended the following 12-month program for the 2024-25 school year: an 8:1+1 special class placement for instruction in English language arts (ELA) (five periods per week), mathematics (five periods per week), social studies (five periods per week), and sciences (five periods per week); together with related services, including two 30-minute sessions per week of individual OT (pull-out); one 30-minute session per week of individual OT (push-in); two 30-minute sessions per week of individual PT (pull-out and push-in); three 30-minute sessions per week of individual speech-language therapy (pull-out); and one 30-minute session per week of speech-language therapy in a small group (pull-out) (see Dist. Ex. 1 at pp. 1, 24-25).^{[7], [8]}  The May 2024 CSE also recommended two 60-minute sessions per year of parent counseling and training services (group) (id. at p. 24).

In reaching the decision to recommend an 8:1+1 special class placement, the May 2024 IEP indicated that the CSE considered a 12:1+1 special class placement in a community school, but rejected the placement because the student presented with "significant development delay and require[d] a more intensive specialized instructional setting to address his educational management needs" (Dist. Ex. 1 at p. 32).  The CSE similarly considered, but rejected, a 12:1+1 special class placement in a specialized school, noting the student's current functional levels and management needs, as well as the "current school staff and parent request[ing] a more intensive and smaller ratio classroom" so the student could receive "greater one to one attention" (id.).

The May 2024 IEP included the following strategies to address the student's management needs: a "smaller group instructional setting" in order to provide the student with "greater individualized attention and optimize[] his potential learning and functioning with consideration to his learning style and personal pace"; a multisensory instructional approach; repetition and modeling until mastery of a skill; hand-over-hand prompts, modeling prompts, tactile prompts, and verbal cue prompts to promote engagement; the use of visual aids, picture cards, and manipulatives; the use of visual schedules for reminders and to ease transitions; use of a preferred item to aid with transitions; the use of verbal and visual prompts to help with focus and attending; breaking down tasks into smaller segments; checking for comprehension of concepts and tasks; providing the student with sensory interventions and objects for sensory input and to reduce self-directed behaviors; support and encouragement when the student addresses challenging tasks and to encourage him to express his needs and wants; and the use of a reinforcement system and token economy to reward the student for engaging in a target behavior (Dist. Ex. 1 at p. 6).

The May 2024 IEP noted the parent's concerns expressed at the meeting, including as related to the student's speech-language development and his difficulty with sensory and self-regulation (see Dist. Ex. 1 at p. 3).  The IEP also reflected the parent's request for increased OT and speech-language therapy services and noted that the student required "one to one attention" as well as an "ABA instructional approach" (id. at pp. 3, 5-6).  The IEP further noted the parent's concerns with the student's tendency to "engage in self-directed behavior," his need for a "great deal of individualized attention and prompting to help him follow directions," and his overall "difficulties socializing with others" (id. at p. 4).

Additionally, the May 2024 CSE noted information in the IEP shared by preschool personnel attending the meeting, including that the student was "very self[-]directed and ha[d] difficulty calming down" (Dist. Ex. 1 at p. 3).  School personnel also reported that the student displayed poor joint attention and had difficulty "doing things that [we]re not directed by him," had difficulty communicating his needs, and did not display "interest" or "awareness in the activities or what peers [we]re doing in the classroom" (id.).  Moreover, school personnel reported that the student could exhibit aggressive behaviors toward the therapist due to impulsive and self-directed behaviors impacted by difficulty with sensory regulation (id.).

After the CSE meeting, the district issued a prior written notice dated May 20, 2024, summarizing the special education program recommended for the 2024-25 school year (see Dist. Ex. 2 at pp. 1-3).  In addition, the May 2024 prior written notice reflected the evaluative information relied upon by the May 2024 CSE to develop the student's IEP, and recited portions of the March 2024 social history, the March 2024 classroom observation, and the April 2024 psychoeducational evaluation (id. at pp. 3-6).

Subsequently, the district issued a second prior written notice dated June 14, 2024, which briefly summarized the special education program recommended in the May 2024 IEP and identified the specific public school site (assigned public school site) at which the student's IEP would be implemented during the 2024-25 school year (see Dist. Ex. 7 at pp. 1-2).

In a letter dated August 20, 2024, the parents, through their attorney, notified the district of their intentions to unilaterally place the student at Reach for the Stars (RFTS) for the 2024-25 school year and to seek public funding for the costs of the student's tuition and expenses (see Parent Ex. B at pp. 1, 3).^[9]  Additionally, the parents expressed their concerns about the student's May 2024 IEP, including the CSE's recommendation of an 8:1+1 special class placement notwithstanding the parents' objections; the CSE's recommendation of 30-minute sessions for OT and speech-language therapy, not 45-minute sessions as requested by the parents; the CSE's failure to recommend five sessions per week of OT and speech-language therapy, as requested by the parents; the CSE's failure to recommend a "behavior plan"; and the CSE's failure to recommend sufficient parent counseling and training services (only two sessions per year) (id. at p. 2).  The parents also indicated that, at the CSE meeting, they had requested "1:1 instruction to address [the student's] self-directed behavior, prompting to help him to follow directions, and ABA therapy" (id.).  With respect to the assigned public school site, the parents noted that they "promptly toured" the school, but their concerns about the "inappropriate IEP" were not "allayed during this tour" (id.).  Instead, the parents indicated that, as noted by the principal, "although ABA therapy was offered, there was no 1:1 instruction" because the "public school d[id] not offer it"; the school exits were "locked, but not monitored"; and the lunch cafeteria would be "too overwhelming" for the student's sensory deficits (id. at pp. 2-3).

On August 26, 2024, the parents executed an enrollment contract with RFTS-LC for the student's attendance during the 2024-25 school year from September 5, 2024 through June 25, 2025 (see Parent Ex. C at pp. 1, 4; see also Parent Ex. G).^[10]

A. Due Process Complaint Notice

By due process complaint notice dated November 25, 2024, the parents alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2024-25 school year (see Parent Ex. A at p. 1).  In support of this assertion and as relevant to the instant appeal, the parents indicated that the CSE failed to: conduct a functional behavioral assessment (FBA) or develop a behavioral intervention plan (BIP) for the student, include sufficient positive behavioral supports in the IEP, recommend 1:1 instruction, include "appropriate 1:1 supervision," recommend ABA services, address the student's social/emotional deficits, recommend sufficient parent counseling and training, offer supervision by a Board Certified Behavior Analyst (BCBA), or recommend sufficient related services (id. at pp. 3-5).  The parents also indicated that the May 2024 CSE impermissibly engaged in predetermination and failed to recommend an appropriate assigned public school site (too large, overwhelming) (id. at pp. 4-5).  As relief, the parents sought reimbursement or direct payment of the costs of the student's tuition at RFTS-LC for the 2024-25 school year and for the district to provide appropriate special transportation for the student's attendance at RFTS-LC (id. at pp. 5-6).

B. Impartial Hearing Officer Decision

On December 31, 2024, the parties proceeded to an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH); the impartial hearing concluded on March 19, 2025, after three days of proceedings (see Tr. pp. 1-63).^[11]  In a decision dated March 21, 2025, the IHO found that the district sustained its burden to demonstrate that it offered the student a FAPE for the 2024-25 school year (IHO Decision at p. 4).  In reaching this conclusion, the IHO noted that the parents had expressed concerns about the "classroom size and level of individualized instruction" and that the student had attended a classroom the prior school year with "14 other students and a one-to-one paraprofessional" (id. at pp. 4-5).  The IHO further noted that, after reviewing the student's progress, the "CSE recommended a smaller classroom with an additional classroom aid[e]," the student's annual goals were "tailored toward [his] specific needs," and district "staff [we]re trained in ABA methodologies and employ[ed] the techniques in their teaching" (id. at p. 5).  The IHO determined that the "classroom recommendation at a [d]istrict [specialized] school where staff [wa]s trained on ABA methodologies, along with the specifically tailored goals and learning instructions, negate[d] the need to use ABA as an umbrella term in the [s]tudent's IEP" (id.).  In addition, the IHO indicated that the parents were "free to [ob]tain additional services, or specialized one-to-one instruction, for the [s]tudent; however, the [district] [wa]s not obligated to provide such" in order for the student to "attain an educational benefit" (id.).  For these reasons, the IHO concluded that the district offered the student a FAPE for the 2024-25 school year and dismissed the parents' due process complaint notice (id.).

IV. Appeal for State-Level Review

The parents appeal, alleging that the IHO erred by finding that the district offered the student a FAPE for the 2024-25 school year.  The parents also allege that the IHO erred by failing to address whether RFTS-LC was an appropriate unilateral placement and whether equitable considerations weighed in favor of the parents' requested relief.  With respect to the IHO's determination that the district offered the student a FAPE, the parents argue that the IHO's finding was based on a "limited and incorrect analysis" and failed to address the "majority" of their claims.  More specifically, the parents contend that the proper legal standard does not compare the recommended program to the program the student previously received, but rather, focuses on whether the special education program offered was designed to enable the student to make progress in light of his circumstances.

In an answer, the district responds to the parents' allegations and generally argues to uphold the IHO's decision in its entirety.  As a cross-appeal, the district asserts that the student's unilateral placement at RFTS-LC was not appropriate.

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]).^[12]

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. May 2024 CSE Process—Predetermination

On appeal, the parents argue that the district impermissibly engaged in predetermination because the May 2024 CSE ignored their request to recommend ABA services in the IEP.  The parents further argue that predetermination may occur when a district elevates program availability over a student's needs.

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 E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., 361 Fed. App'x 156, 160 [2d Cir. 2009]; E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *17 [E.D.N.Y. Aug. 19, 2013] [holding 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"]; DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18-*20 [S.D.N.Y. Jan. 2, 2013]; P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] ["[a] professional disagreement is not an IDEA violation"]; Sch. For Language and Commc'n Development 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"]).

As to predetermination, the consideration of possible recommendations for a student prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting (T.P., 554 F.3d at 253; A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8-*9 [S.D.N.Y. July 30, 2015]; see 34 CFR 300.501[b][1], [3]; 8 NYCRR 200.5[d][1], [2]).  The key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP" (T.P., 554 F.3d at 253; see D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-*11 [E.D.N.Y. Sept 2, 2011], aff'd, 506 Fed. App'x 80 [2d Cir. Dec. 26, 2012]; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [E.D.N.Y. 2009], aff'd, 366 Fed. App'x 239 [2d Cir. Feb. 18, 2010]).  Districts may "'prepare reports and come with pre[-]formed 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] [alteration 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. v. New York City Dep't of Educ., 12 F. Supp. 3d 343, 358-59 [E.D.N.Y. 2014] [holding that "active and meaningful" parent participation undermines a claim of predetermination]).

A review of the May 2024 IEP reflects that the parent attended the CSE meeting, along with the student's then-current preschool teacher, his SEIT supervisor, and the special education preschool supervisor (see Dist. Ex. 1 at p. 34).  The May 2024 CSE also included the district school psychologist who conducted the student's April 2024 psychological evaluation and the district social worker who completed the student's March 2024 social history, as well as a special education teacher and a regular education teacher (id.; compare Dist. Ex. 1 at p. 34, with Dist. Ex. 4 at p. 5, and Dist. Ex. 5 at p. 1).

The evidence indicates that, in April 2024, prior to the May 2024 CSE meeting, the district school psychologist and the district social worker met with the district school psychologist's supervisor (supervisor) to discuss the student's evaluative information and "possible considerations for supporting [him] in kindergarten" (Dist. Ex. 8 ¶ 7; see Tr. pp. 20-21; see generally Dist. Exs. 3-6).  At the impartial hearing, the supervisor confirmed that this pre-CSE meeting included a discussion about the "range of program considerations" for the student, including the "possibility of deferring" his placement to a nonpublic school (Tr. p. 20; see Dist. Ex. 8 ¶ 7).  When asked whether the CSE was "allowed" to recommend a specific methodology in an IEP, the supervisor testified that she believed a CSE was "allowed to make a recommendation for anything that [wa]s necessary and appropriate" (Tr. pp. 21-22).

The parent testified that, at the May 2024 CSE meeting, she "requested 1:1 instruction, an increase in [OT] and speech-language therapy, a behavior plan and ABA therapy" (Parent Ex. P ¶ 4).  She also testified that, "[o]ver [her] objections, the CSE team recommended an 8:1+1 special class without a behavior plan" (id.).  In reviewing the May 2024 IEP, the CSE captured the parent's concerns, including increased OT and speech-language therapy services, one-to-one instruction, and an "ABA instructional approach" (see Dist. Ex. 1 at pp. 3-6, 31-32).

Based on the evidence in the hearing record, the parent had the opportunity to express her concerns about the student's recommended special education program, including the parent's request for an ABA instructional approach.  Although the hearing record does not include evidence describing any discussion of the parent's requests at the May 2024 CSE meeting, or the reasons for rejecting her requests, the evidence nonetheless supports a finding that the parent had the opportunity to meaningfully participate at the May 2024 CSE meeting and in the development of the student's IEP.  As a result, the parent's opportunity to participate at the CSE meeting undermines her claim that the May 2024 CSE impermissibly predetermined the student's special education program, and the argument must be dismissed.

B. May 2024 IEP

The parents contend that the May 2024 CSE failed to conduct an FBA and develop a BIP to address the student's behavior needs, failed to otherwise address the student's behavior needs within the IEP, and noted within the IEP that the student did not require strategies including positive behavioral interventions, supports, and other strategies to address behaviors that impeded his learning or that of others.

The district asserts that the May 2024 IEP includes annual goals to address the concerns relayed about the student's behaviors, and that the CSE was not required to conduct an FBA or develop a BIP when a student's behavior does not impede his learning or that of others.  However, even if the CSE failed to conduct an FBA and develop a BIP, the district asserts that this procedural violation does not rise to the level of a failure to offer a FAPE if the student's IEP addressed the problem behaviors by including "'intervention strategies similar to a BIP to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences'" (Answer & Cr. App. ¶ 11, citing R.K. v. New York City Dept. of Educ., 2011 WL 1131492, at *19 [E.D.N.Y. Jan. 21, 2011]).  The district argues that because the May 2024 IEP included recommendations from the April 2024 psychological evaluation of the student, the CSE had no reason to believe the student required more intensive intervention such as an FBA and a BIP, and therefore, the IEP more than appropriately addressed the student's behaviors.

1. Special Factors—Interfering Behaviors (FBA/BIP)

Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP.  Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., 361 Fed. App'x 156, 160 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172).  State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider developing a BIP for a student that is based upon an FBA (8 NYCRR 200.4[d][3][i], 200.22[a]-[b]).  Additionally, a district is required to conduct an FBA in an initial evaluation for students who engage in behaviors that impede their learning or that of other students (8 NYCRR 200.4[b][1][v]).

State regulations define an FBA as "the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment" and include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it (8 NYCRR 200.1[r]).  According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors (8 NYCRR 200.22[a][2]).  An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement" (8 NYCRR 200.22[a][3]).

Although State regulations call for the procedure of using an FBA when developing a BIP, the Second Circuit has explained that, when required, "[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all" (R.E., 694 F.3d at 190).  The Court also noted that "[t]he failure to conduct an FBA will not always rise to the level of a denial of a FAPE," but that in such instances particular care must be taken to determine whether the IEP addresses the student's problem behaviors (id.).

With regard to a BIP, the special factor procedures set forth in State regulations note that the CSE shall consider the development of a BIP for a student with a disability when:

the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; (ii) the student's behavior places the student or others at risk of harm or injury; (iii) the CSE or CPSE is considering more restrictive programs or placements as a result of the student’s behavior; and/or (iv) as required pursuant to [8 NYCRR 201.3]

(8 NYCRR 200.22[b][1]).

If the CSE determines that a BIP is necessary for a student "[t]he [BIP] shall identify: (i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors . . . ; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals" (8 NYCRR 200.22[b][4]).

The district's failure to develop a BIP in conformity with State regulations does not, in and of itself, automatically render the IEP deficient, as the IEP must be closely examined to determine whether it otherwise addressed the student's interfering behaviors (see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 80 [2d Cir. 2014]; F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 6-7 [2d Cir. Jan. 8, 2014]; M.W. v. New York City Dep't of Educ., 725 F.3d 131, 139-41 [2d Cir. 2013]; R.E., 694 F.3d at 190).

Here, it is undisputed that the district did not conduct an FBA of the student and the May 2024 CSE indicated on the IEP that the student did not need strategies or a BIP to address behaviors that impede the student's learning or that of others (Dist. Ex. 1 at p. 7).

Evidence in the hearing record reveals reports about the student's behavior—either independent of, or as related to, his social/emotional functioning and peer interactions—prior to and at the time of the May 2024 CSE meeting.  For example, in the March 2024 classroom observation report, the observer noted that the student required the assistance of his SEIT to join circle time with the other students (sitting on the SEIT's lap) and to carry him back from the bathroom to rejoin circle time (see Dist. Ex. 3 at p. 1).  The student also cried when rejoining the group, and he resisted the SEIT's attempts to physically move his hands so he could participate in the circle time activities (id.).  When students left circle time to wash hands, the student laid down on the carpet, and he began to cry and complain when the SEIT took him to wash his hands (id. at p. 2).  He also attempted to throw himself on the ground and struggled with the SEIT when washing his hands (id.).  The student continued to cry and resist efforts to join snack time with the other students, and "finally" when the SEIT sat down on a chair the student sat on the SEIT's lap but he pushed food away and tried to push himself away from the table (id.).

As part of the classroom observation, the report included information gleaned from a January 2024 progress report (see Dist. Ex. 3 at p. 1).  In addition to reporting regression of compliance skills and mastered skills, the progress report noted that the student required the assistance of his SEIT to "remain safe and as minimally disruptive" to other students in the classroom, adding parenthetically that the student could not be left alone (id.).  The January 2024 progress report reflected the student's limited engagement with other students, that his behavior distracted other students, and that the student threw himself on the floor when upset and screamed or cried at "many points" each school day (id.).

In contrast, within the March 2024 social history, the parent reported that the student's tantrums were "age appropriate," and he did not exhibit "aggressive behavior"; he could focus for short periods of time, indicating 5 to 10 minutes or longer if engaged in a preferred activity; and the student was "very self-directed" (Dist. Ex. 5 at pp. 1-2).

Turning to the April 2024 psychological evaluation report, it was noted that the student had difficulty remaining on task for short intervals and had "significant difficulty" attending during group lessons, following instructions, and completing a chore (Dist. Ex. 4 at p. 1).  During testing, the student required the parent's assistance to sit in a chair to participate, and he only remained seated for a "limited time" (id. at p. 2).  On the second day of testing, the student attempted to run away and his SEIT, who accompanied him that day, quickly caught him and carried him to the room for testing (id.).  The student had to sit on his SEIT's lap to participate but remained "restless and move[d] and looked side to side" (id.).

In the May 2024 IEP, the CSE described the student as presenting with "limited attention skills" and as exhibiting "impulsive and self[-]directed behavior"; the CSE also noted that the student's weak social skills affected his overall functioning (Dist. Ex. 1 at p. 1).  Additionally, the CSE indicated that the student had "[w]eak safety awareness" (id.).  The CSE further noted that, based on a SEIT report, the student had "deficient" attention skills and "demonstrate[d] continuous difficulties with appropriate behaviors" (id. at p. 2).  Based on a speech-language therapy progress report, it was noted in the IEP that the student demonstrated "continuous challenges" with describing things to people, saying what he was thinking, and expressing himself verbally instead of having a tantrum (id.).  In addition, the student's "deficient" social pragmatic skills limited his ability to engage or interact with adults and peers (id. at p. 3).  Furthermore, the student had been unsuccessful with establishing and maintaining eye contact, understanding body language, and taking turns while playing (id.).  According to the SEIT progress report, the student's "limited progress" in social skills deterred him from interacting appropriately with peers and adults (id. at p. 4).  It was also noted that the student had difficulty staying regulated and would seek inappropriate sensory input (id.).

At the May 2024 CSE meeting, personnel attending from the student's preschool shared that the student was "very self[-]directed and ha[d] difficulty calming down," which the CSE documented in the IEP (Dist. Ex. 1 at p. 3).  They further reported that the student displayed poor joint attention and had difficulty "doing things that [we]re not directed by him" (id.).  Additionally, school personnel reported that the student did not show interest or awareness in peers or activities with peers, and he could exhibit aggressive behaviors towards the therapist due to "impulsive and self[-]direct[ed] behaviors impacted by difficulty with sensory regulation" (id.).

To the extent that the district asserts that the May 2024 CSE was not required to conduct an FBA or develop a BIP for the student because the student's behavior did not impede his learning or that of others—as the CSE denoted in the IEP—the hearing record is devoid of evidence concerning how the CSE made such a determination (see generally Tr. pp. 1-63; Parent Exs. A-R; Dist. Exs. 1-8; IHO Exs. I-II).  To the contrary, based on the March 2024 classroom observation report, in preschool, it appears that the student's individual SEIT was primarily responsible for managing and addressing the student's behaviors (see generally Dist. Ex. 3).  Within that classroom observation report, it was noted that the SEIT assisted the student on a full-time, daily basis, and the student required the SEIT to remain safe and minimally disruptive to the other students in the class (id. at p. 1).  Thus, to the extent that the May 2024 CSE indicated that the student's behaviors did not impede his learning or that of others is belied by the classroom observation report.  Additionally, the evidence reflects that the May 2024 CSE relied on a SEIT report to develop the student's IEP and noted in the IEP that the student continued to demonstrate difficulties with appropriate behaviors (see Dist. Ex. 1 at p. 2).

To be sure, as noted above, the CSE described the student's behaviors in the IEP, including some causes therefore (i.e., sensory regulation and frustration with social skills and communication) (see Dist. Ex. 1 at pp. 1-3).  Nevertheless, whereas here, the student was reportedly not making significant progress in some areas and required significant individual adult support to "remain safe" and "minimally disruptive to the other [students]" (Dist. Ex. 3 at p. 1), this is not an instance where there was evidence before the CSE that the student's interfering behaviors were being adequately managed such that the lack of an FBA did not amount to a denial of a FAPE (see K.S. v. Harrison Cent. Sch. Dist., 2025 WL 3442916, at *16 [S.D.N.Y. Dec. 1, 2025] [noting that a violation of the IDEA based upon failure to conduct an FBA may arise where the evidence does not indicate that the student's behaviors were being adequately managed in the time leading up to the CSE]).

When asked how the CSE addressed the parents' concerns about the student's behavior issues, the supervisor testified that, after the May 2024 CSE meeting, she spoke with the district school psychologist who attended the meeting to "follow up on how it went" (Tr. p. 23).  According to the supervisor, the May 2024 CSE had recommended an 8:1+1 special class in a district specialized school after discussing "other options," including the parents' request (id.).  She further testified that, having spoken with the district school psychologist and district social worker after the May 2024 CSE meeting, they "agreed that based on all [the] information" they had about the student, "his profile very much align[ed] with the type of profile" seen in kindergarten students within an 8:1+1 special class placement in a district specialized school (Tr. pp. 23-24).  However, this testimony is not responsive and does not directly address the question concerning how the CSE addressed the parents' concerns about the student's behaviors or the behaviors identified in the evaluative information available to the May 2024 CSE.

At the impartial hearing, the supervisor also testified that "[v]arious behavioral and instructional methodologies [we]re programmatic within [d]istrict [specialized school] classes and the school psychologist [had] reported that she encouraged the parent[s] to visit the school offered and [to] speak to the school and visit the class before she made her final decision to not accept the recommended placement" (Dist. Ex. 8 ¶ 10).  However, the supervisor's testimony about programmatic aspects of the recommended program that were not reflected in the IEP is impermissibly retrospective (R.E., 694 F.3d at 184-88).  That is, the Second Circuit squarely held that the question of whether an IEP was reasonably calculated to enable the student to receive education benefits "must be evaluated prospectively as of the time [the IEP] was created" (id. [explaining that with the exception of amendments made during the resolution period, the adequacy of an IEP must be examined prospectively as of the time of its drafting and that "retrospective testimony" regarding services not listed in the IEP may not be considered]).  Further, the supervisor's direct testimony did not provide any information concerning an FBA or a BIP for the student or the rationale for not conducting an FBA or developing a BIP for the student, or how, if at all, the May 2024 IEP addressed the student's behaviors (see generally Dist. Ex. 8).

As noted, the district contends that, contrary to the parents' contentions, the May 2024 IEP otherwise addressed the student's behaviors with several annual goals.  For example, the district points to the annual goals targeting the student's social/emotional functioning, his ability to follow classroom directions, his ability to remain seated on the rug for mini-lessons and to use self-regulation techniques, and his ability to transition without emotional outbursts (see Dist. Ex. 1 at pp. 8-22; Answer & Cr. App. ¶ 5).  Thus, by incorporating annual goals targeting some of the student's behaviors, the district acknowledges that the student exhibited behaviors that needed to be addressed.  However, based on the district's own arguments on appeal, the annual goals do not appear adequate to address the student's needs when compared to the standard set forth by the Court in R.K., cited by the district, which requires the IEP to include benefits equivalent to a BIP, such as intervention strategies to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences (2011 WL 1131492, at *19).

The district further asserts that the May 2024 IEP included the recommendations from the April 2024 psychological evaluation report—citing to the strategies to address the student's management needs to support this assertion—and thus, there was no reason to believe the student required more intense interventions, such as an FBA or a BIP, and the IEP more than appropriately addressed his behaviors (see Answer & Cr. App. ¶ 12).  State regulation and guidance documents define management needs as the "means the nature and degree" to which "environmental modifications," "human resources" and "material resources" "are required to enable the student to benefit from instruction" (8 NYCRR 200.1[ww][3][i][d]; see "Guide to Quality Individualized Education Program [IEP] Development and Implementation," at p. 20, Office of Special Educ. [Feb. 2010; Rev. Sept. 2023] [providing examples of environmental modifications (i.e., consistency in routine, limited visual or auditory distractions, adaptive furniture), human resources (i.e., assistance in locating classes, following schedules, and note taking), and material resources (i.e., instructional materials in alternative formats)], available at https://www.nysed.gov/sites/default/files/programs/special-education/guide-to-quality-iep-development-and-implementation.pdf).^[13]  A student's management needs must be developed in accordance with the factors identified in the areas of academic or educational achievement and learning characteristics, social development, and physical development, and reported in the student's IEP (see 8 NYCRR 200.1[ww][3][i][d], 200.4[d][2][i]; see also "Guide to Quality Individualized Education Program [IEP] Development and Implementation," at p. 20).

Consistent with the district's assertion, the May 2024 CSE incorporated the following recommendations from the April 2024 psychological evaluation report into the IEP as strategies to address the student's management needs: the support of a small group instructional setting to provide the student with "greater individualized attention and optimize[] his potential in learning and functioning with consideration to his learning style and personal space" (i.e., the support of a small group instructional support setting"); multisensory (i.e., multimodal) instructional approach; "hand over hand prompt, modeling prompt, tactile prompt, and verbal cue to prompt to promote engagement (i.e., "[p]rompting and cueing to promote engagement and verbal expression"); the provision of sensory interventions and objects for sensory input and to reduce self-directed behaviors (i.e., "[p]rovision of sensory activities and objects for sensory input"); using a preferred item to aid with transitions; and the provision of support and encouragement when the student addresses challenging tasks and to encourage him to express his needs and wants (i.e., providing the student with "[s]upport and encouragement when [the student] addresses challenging tasks and/or transition to a nonpreferred or novel activity") (compare Dist. Ex. 1 at p. 6, with Dist. Ex. 4 at p. 5).^[14]  The May 2024 CSE also recommended additional strategies to address the student's management needs, including the following: repetition and modeling until mastery of a skill; the use of visual aids, picture cards, and manipulatives; the use of a visual schedule for reminders and to ease transitions; the use of verbal and visual prompts to help the student attend and focus; breaking tasks down into small segments; checking for comprehension of concepts and tasks; and the use of a reinforcement system and token economy to reward the student when engaged in a target behavior (see Dist. Ex. 1 at p. 5).

While the May 2024 CSE incorporated some of the recommendations from the April 2024 psychological evaluation report, taking into account the other information before the CSE regarding the student's need in preschool for individual adult support to support his behaviors, it is not clear that the recommended 8:1+1 special class, discussed further below, would have been sufficient to support the student's behavioral needs.^[15]  Accordingly, a review of the hearing record demonstrates that the district committed a procedural violation by failing to conduct an FBA or develop a BIP to address the student's behaviors, and the failure to otherwise adequately address the student's behaviors in the May 2024 IEP contributes to a finding that the district failed to offer the student a FAPE for the 2024-25 school year.

2. 8:1+1 Special Class Placement

The parents argue that the 8:1+1 special class placement was not appropriate because it did not meet the student's "complex educational and behavioral needs."  The parents also argue that the IHO erred by finding that the 8:1+1 special class placement was more supportive than the student's preschool classroom when determining that the district offered the student a FAPE.  Additionally, the parents contend that, although the student made limited progress in preschool, the district recommended a less supportive classroom setting, which ignored the student's reported behavioral needs and that the student had had the support of an individual SEIT in preschool.

The district asserts that the 8:1+1 special class placement, when compared to the size of the student's preschool classroom, supported the May 2024 CSE's recommendation and would better enable the student to make progress.  The district also asserts that it is essential to consider the student's LRE when making a placement recommendation, therefore, based on the student's needs, an 8:1+1 special class placement was appropriate.

It is well settled that a student's progress under a prior IEP is a relevant area of inquiry for purposes of determining whether an IEP has been appropriately developed, particularly if the parents express concern with respect to the student's rate of progress (see H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 Fed. App'x 64, 66-67 [2d Cir. 2013]; Adrianne D. v. Lakeland Cent. Sch. Dist., 686 F.Supp.2d 361, 368 [S.D.N.Y. 2010]; M.C. v. Rye Neck Union Free Sch. Dist., 2008 WL 4449338, *14-*16 [S.D.N.Y. Sept. 29, 2008]; see also "Guide to Quality Individualized Education Program (IEP) Development and Implementation," Office of Special Educ. Mem. [Revised Sept. 2023], available athttps://www.nysed.gov/sites/default/files/ programs/special-education/guide-to-quality-iep-development-and-implementation.pdf).

Here, as noted above, the student's preschool IEP from the 2023-24 school year was not included in the hearing record.  Nor did the district present evidence of the student's progress towards achieving annual goals included in the preschool IEP.  Rather, as summarized above, information before the CSE raised concerns about the student's rate of progress during the 2023-24 school year (see Dist. Ex. 3).

At the impartial hearing the supervisor stated her view that the 8:1+1 special class placement was an appropriate placement for the student (see Tr. pp. 22-23).^[16]  She also testified that the student had been in a preschool classroom of 14 students, and the "proposed classroom was offering" a ratio of eight students, with one teacher and one classroom paraprofessional to provide the student with "intensive behavioral and instructional support throughout the day" (Dist. Ex. 8 ¶ 9).  She further testified that, after the May 2024 CSE meeting when speaking with the district school psychologist and district social worker, they "agreed that based on all [the] information" they had about the student, "his profile very much align[ed] with the type of profile" seen in kindergarten students within an 8:1+1 special class placement in a district specialized school (Tr. pp. 23-24).

When comparing the student-to-teacher ratios of the preschool classroom with the proposed 8:1+1 classroom, the preschool classroom had a ratio of approximately seven students to one adult, yet the student also had an individual SEIT as adult support.  The proposed classroom would have had a ratio of approximately four students to one adult—however, the May 2024 CSE did not recommend any individual adult support for the student.  Therefore, overall, while the proposed 8:1+1 special class placement offered more adult support per student when compared to the student's preschool classroom, there is no evidence in the hearing record to indicate if the May 2024 CSE considered whether the student required more adult support, such as an individual paraprofessional, as the student had an individual SEIT in the preschool classroom, to make progress.  Notably, when asked about the student's SEIT services in preschool, the supervisor testified that she believed the student received such services for the "full day," but she did not know the specific amount of SEIT services (Tr. p. 22).

When asked how the CSE addressed the parents' request for a specific school, the supervisor testified that, after the May 2024 CSE meeting, she spoke with the district school psychologist who attended the meeting to "follow up on how it went" (Tr. p. 23).  According to the supervisor, the May 2024 CSE recommended an 8:1+1 special class in a district specialized school after discussing "other options"—including the parent's request—and that this option was the "most appropriate recommendation" (id.).  According to the May 2024 IEP, the CSE indicated that it had considered, but rejected, a 12:1+1 special class placement in a community school and in a specialized school, and the parent and student's current school staff "requested a more intensive and smaller ratio classroom which would provide [the student] with greater one to one attention" (Dist. Ex. 1 at p. 32).  However, the IEP did not articulate the basis for the CSE's rejection of the request for a classroom with more adult support (see id.).

Overall, a review of the evidence in the hearing record does not support a finding that the recommendation for an 8:1+1 special class placement, absent any evidence that the May 2024 CSE considered the student's aforementioned behavioral needs and the fact that the student had an individual SEIT as adult support in his preschool classroom, was appropriate to meet the student's needs or was reasonably calculated to enable the student to make appropriate progress in light of his circumstances for the 2024-25 school year.   

3. Related Services

The parents assert that the IHO failed to address their claim that the related services recommendations in the May 2024 IEP were not sufficient to address the student's significant needs.  More specifically, the parents contend that the district failed to address this allegation at the impartial hearing and failed to provide evidence regarding how the May 2024 CSE reached its decision to recommend 30-minute sessions of OT, PT, and speech-language therapy services or why it ignored the parent's requests made at the CSE meeting to provide the student with daily speech-language therapy and OT services (see Parent Mem. of Law at pp. 11-12).^[17]  In its answer and cross-appeal, the district did not address the parents' claims about the related services recommendations.

An IEP must include a statement of the related services recommended for a student based on such student's specific needs (8 NYCRR 200.6[e]; see 20 U.S.C. § 1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]).  "Related services" is defined by the IDEA as "such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education" (20 U.S.C. § 1401[26][A]; see 34 CFR 300.34[a]; 8 NYCRR 200.1[qq]).

Based on the evaluative information available to the May 2024 CSE, the student received OT, PT, and speech-language therapy services as part of his preschool program (see Dist. Ex. 4 at p. 1).  It was also noted that parent counseling and training services were a part of his preschool program as well (id.).  The parent reported that the student was receiving the following related services at the time of the March 2024 social history update: two sessions per week of individual speech-language therapy and one session per week of speech-language therapy in a small group (2:1), two sessions per week of individual OT, two sessions per week of individual PT, and one 60-minute session per month of parent counseling and training services (see Dist. Ex. 5 at p. 1).  However, the hearing record does not contain any evidence to establish the duration of the student's related services as reflected in the March 2024 social history update and as reported by the parent (see generally Tr. pp. 1-63; Parent Exs. A-R; Dist. Exs. 1-9; IHO Exs. I-II).

According to the May 2024 IEP, the CSE recommended the following related services for the student: two 30-minute sessions per week of individual OT (pull-out) and one 30-minute session per week of individual OT (push-in), for a total of three 30-minute sessions per week of OT; two 30-minute sessions per week of individual PT (pull-out and push-in); three 30-minute sessions per week of individual speech-language therapy (pull-out) and one 30-minute session per week of speech-language therapy in a small group (pull-out), for a total of four 30-minute sessions per week of speech-language therapy (see Dist. Ex. 1 at pp. 1, 24-25).  The May 2024 CSE also recommended two 60-minute sessions per year of parent counseling and training services (group) (id. at p. 24).  The May 2024 IEP also reflects that, consistent with the parents' argument on appeal, the parent requested that the CSE increase the student's speech-language therapy and OT services to five days per week (i.e., daily) and for the student's speech-language therapy and OT services to be 45 minutes in duration (id. at pp. 3, 6, 31-32).  As noted in the IEP, the CSE recommended 30-minute sessions "as this [wa]s the more appropriate recommendation for entering kindergarten" (id. at p. 32).

When comparing the related services from preschool, it appears that the May 2024 CSE recommended four total sessions per week of speech-language therapy, rather than three sessions per week in preschool; three sessions per week of OT, rather than two sessions per week in preschool; and two sessions per week of PT, which was the same frequency as the student received in preschool (compare Dist. Ex. 1 at pp. 24-25, with Dist. Ex. 5 at p. 1).  In addition, the May 2024 CSE's recommendation for parent counseling and training consisted of only two sessions per year, while in preschool, it appears that the parent counseling and training occurred every month (compare Dist. Ex. 1 at p. 24, with Dist. Ex. 5 at p. 1).

While the neither the hearing record nor the district's position are particularly developed on the question of the appropriateness of the CSE's related service recommendations, given the foregoing determinations regarding the district's failure to prove that the IEP was designed to address the student's behavioral needs, it is not necessary, in this instance, to determine whether the lack of evidence in this area adds to the finding that the district failed to meet its burden to prove that the district offered the student a FAPE. 

4. ABA Methodology

Here, the parents argue that the IHO erred by finding that the evidence in the hearing record—and more specifically, supervisor testimony at the impartial hearing—supported a finding that the May 2024 CSE was not required to recommend ABA methodology in the student's IEP.  The parents further argue that the hearing record was devoid of evidence to establish that the May 2024 CSE considered or discussed ABA methodology as a part of the student's program, notwithstanding the parent stating her concerns about the student's need for "one to one attention" and an "ABA instructional approach" at the May 2024 CSE meeting.  The parents also assert that the district attempted to retrospectively rehabilitate the May 2024 IEP through witness testimony indicating that the student could receive the same type of instruction in the proposed classroom.^[18]

The district generally contends that, based on the supervisor's testimony, the May 2024 CSE discussed ABA methodology with the parent and explained that most teachers in specialized schools had training in ABA and used various techniques to support students in their classroom.  Therefore, the district asserts that it was not required to include ABA methodology in the student's IEP.

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).

At the impartial hearing, the supervisor testified that the "SEIT provider, both in the observation and write-up and also in her report, had mentioned [that] she used ABA methodology" with the student (Tr. p. 24; see Dist. Ex. 8 ¶ 8).  In the May 2024 IEP, the CSE reported that the student's SEIT used "ABA techniques to facilitate his learning of the necessary skills" and his "therapy include[d] one-to-one instruction, [and] a small social group setting with controlled parameters" (Dist. Ex. 1 at p. 2).  It was also noted in the IEP that the student's "[c]ognition, language, and social/emotional/behavioral skills [we]re targeted throughout the educational program" (id.).  As reflected in the May 2024 IEP, the parent noted that the student required "one to one attention" and an "ABA instructional approach," and she had requested an "ABA instructional approach" (id. at pp. 3, 31).

The supervisor testified that, at the May 2024 CSE meeting, when the parents stated that they "wanted ABA methodology on the IEP," it was "explained that . . . , most of the teachers and providers in [d]istrict [specialized schools], especially" in kindergarten classrooms with student-to-teacher ratios of 6:1+1, 8:1+1, and 12:1+1, had a "lot of training around ABA methodology and they use[d] various different techniques within that umbrella term to support students in their classrooms" (Tr. p. 24).  The supervisor testified that, as a result, "there was no need to write ABA methodology as an umbrella term" in the IEP (id.).

Although the information before the CSE reflected that the SEIT was purportedly delivering instruction to the student using an ABA methodology (Dist. Ex. 1 at p. 2),^[19] this does not amount to a clear consensus set forth in evaluative information before the CSE that the student required ABA methodology to receive educational benefit.  Consequently, there is no reason to disturb the IHO's finding that the May 2024 CSE was not required to recommend ABA methodology in the student's IEP.

C. Unilateral Placement—RFTS-LC

Having found that the IHO erred by finding that the district offered the student a FAPE for the 2024-25 school year, the next inquiry focuses on whether the parents' unilateral placement of the student at RFTS-LC was appropriate.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129).  Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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

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

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

1. Student Needs

Generally, while the student's needs are not in dispute, a review of additional information about the student available at the time of the parent's placement decision facilitates the discussion of the issue to be resolved, namely, whether the parents sustained their burden to establish the appropriateness of RFTS-LC and more specifically, whether RFTS-LC provided the student with specially designed instruction to meet his needs for the 2024-25 school year.

In addition to the description of the student's needs set forth in the facts and procedural history and special factors (i.e., behaviors) sections above, based on the district evaluations completed in 2024 prior to the May 2024 CSE meeting, the hearing record also includes information about the student's needs as determined by RFTS-LC as part of the student's admissions process and enrollment in September 2024.  For example, at the impartial hearing, the educational director at RFTS-LC (director) explained that, while RFTS-LC reviewed the student's prior and most recent IEPs, his "prior psychological evaluations and other evaluations from 2022, [and] progress reports," RFTS-LC also conducted its own "initial assessments and observations" of the student when he had visited and interviewed with his family prior to admission (Parent Ex. Q ¶¶ 22, 31-32).

In this instance, the director testified that the student's "skills in all domains were assessed using the Assessment of Basic Language and Learning Skills—Revised ('ABLLS')"; in addition, the evidence includes a RFTS-LC "Speech and Language Department Evaluation 2024," administered to the student in September 2024 (Parent Exs. J at p. 1; O; Q ¶ 36).^[20]  She also testified that the results of the ABLLS-R identified "deficits and barriers that may be hindering [the student]'s ability to acquire new skills" (Parent Ex. Q ¶ 36).  According to the director, the ABLLS-R assessed skills in several areas, including "language, social interaction, self-help, academic, and motor skills" (id.).  The director testified that "pinpointing" the student's deficits in these areas using the ABLLS-R allowed RFTS-LC to "design a personalized, language-based curriculum that target[ed the student]'s specific needs, promoting skill acquisition and progress across various developmental areas" (id.).  The hearing record includes a copy of the student's "Educational Curriculum Plan" (RFTS-LC educational plan) for the 2024-25 school year, which identifies the student's needs as specific skills targeted through goals in the areas of language and communication (expressive and receptive skills); the use of an alternative and augmentative communication device for speech (AAC device); imitation, visual performance, and fine motor skills; group skills and classroom routines; social, play, and leisure skills; activities of daily living (ADL) skills; community and safety skills; and behavior skills (Parent Ex. L at pp. 2-9).  For example, in the area of language and communication, the RFTS-LC educational plan targeted the student's ability to follow instructions in routine situations, match identical pictures or objects, sort non-identical items and pictures, and identify at least 15 new actions (id. at pp. 2-3).  In the area of ADL skills, the student needed to work on, among other things, improving his ability to wash his hands, eat with a spoon or fork, and clean up after eating a meal (id. at pp. 7-8).

With respect to the student's needs, the director explained that he needed to "develop skills to help him better access his education," and therefore, he received "instruction in functional and pre-academic skills, such as imitation skills, improving fine motor skills, [and] improving visual performance skills" (Parent Ex. Q ¶ 41).  The student also needed work on "increasing his skills in a group environment, such as sitting appropriately at a group table, participating in small group activities and following group instructions" (id.).  As a result, RFTS-LC developed annual goals targeting the student's need to "improve classroom routine skills" (id.).  The director also testified that the student had additional goals in the areas of "social, play and leisure skills … ADL[] skills and community and safety skills" so that he could engage in "simple games, independently completing an activity schedule, handwashing, and participating in group movement activities" (id. ¶ 42).

The director also testified that the student presented with "significant maladaptive behaviors" that interfered with his education, such as "flopping," "[c]limbing," and "aggressions" (Parent Ex. Q ¶ 37).  In addition to the behavior skills identified and targeted in the student's RFTS-LC educational plan, the hearing record includes a copy of the student's BIP developed by RFTS-LC, dated October 30, 2024 (see generally Parent Ex. K).

In addition to administering the ABLLS-R to the student, RFTS-LC also administered a speech-language evaluation to the student in September 2024 (September 2024 speech-language evaluation) (see generally Parent Ex. J).  According to the September 2024 speech-language evaluation report, the speech-language pathologist administered the following to the student to assess his language skills: the Preschool Language Scale—Fifth Edition (PLS-5), the Evaluating Acquired Skills in Communication—Third Edition (EASIC-3) (Pre-language Inventory), the Receptive Expressive Emergent Language—Fourth Edition (REEL-4), an informal oral motor exam using the Apraxia Profile—Preschool Profile Oral Motor Exam, and informal observations during therapy sessions and within the classroom (see Parent Ex. J at pp. 1, 14-15).^[21]

Based on the testing results of the September 2024 speech-language evaluation, as well as the director's testimony, the evidence reflects that the student demonstrated deficits in "expressive, receptive and pragmatic language," which affected the "skills needed for academic success" (Parent Ex. Q ¶ 44; see Parent Ex. J at pp. 2-7).  In the area of expressive language skills, the results of the PLS-5 indicated that the student demonstrated the ability to: use gestures and vocalizations to request objects, demonstrate joint attention, and name objects in photographs (see Parent Ex. J at p. 7).  The student could not, however, consistently demonstrate the following skills: using words more often than gestures to communicate; using words for a variety of pragmatic functions; using different word combinations; naming a variety of pictured objects; and using a variety of nouns, verbs, and modifiers (id. at pp. 7-8).

In the area of receptive language skills on the PLS-5, the student demonstrated the ability to: follow routines and familiar directions with gestural cues, identify familiar objects from a group of objects without gestural cues, identify photographs of familiar objects, engage in symbolic play, and recognize actions in pictures (see Parent Ex. J at p. 6).  The student was unable to consistently demonstrate the following skills during testing: follow commands with gestural cues; identify basic body parts; identify things you wear; demonstrate an understanding of verbs such as eat, drink, and sleep in context; engage in pretend play; understand pronouns such as me, my, and yours; follow commands without gestural cues; understand the use of objects; understand spatial concepts such as in, on, off, and out of; understand quantitative concepts; make inferences; understand analogies; and understand negatives in sentences (id. at pp. 6-7).

According to the director's testimony, the student had "limited verbal output and communicate[d] using gestures and one to two word utterances, but generally only produce[d] unintelligible verbal approximations throughout the day" (Parent Ex. Q ¶ 44; see Parent Ex. J at p. 1).  She also testified that the student started using an AAC/speech-generating device in "October," and as noted in the September 2024 speech-language evaluation, the student "demonstrated engagement and interest in the device," which was to be used to "teach words in combination with verbal speech" (Parent Exs. J at p. 1; Q ¶ 44).

With respect to pragmatic language skills—assessed primarily through informal observations—the student's skills were described as "limited" (Parent Ex. J at p. 15).  It was noted that the student did not respond or initiate greetings or attempts to interact with peers or teachers (id.).  It was also reported that the student's "playing skills" were "advanced," noting specifically that he "functionally play[ed] with toys in a toy kitchen and w[ould] use a bowl and spoon to mix and make a salad independently" (id.).  Similarly, the student "play[ed] with a barber kit and cut his hair with pretend scissors" (id.).  The student also enjoyed playing with puzzles and animal figurines (id.).

Informal observations of the student yielded additional information about the student's expressive and receptive language skills (see Parent Ex. J at p. 15).  For example, although the student had difficulty following simple routines, he showed "improvement as he [got] more acclimated to his new classroom" (id.).  It was noted that the student verbally requested items when highly motivated; however, it was also noted that he would have "behaviors" if he could not "find the language to request" (id.).  Additionally, the student's speech was characterized as "low volume" and "unintelligible," and it was reported that he made "several unintelligible vocalizations throughout the day" (id.).

Finally, the September 2024 speech-language evaluation included results of the REEL-4 (a "checklist"), which was administered to the parent and which the speech-language pathologist documented in the evaluation report by providing the parent's responses in two columns ("yes" and "no") to separate the skills the student either could or could not perform in the areas of receptive and expressive language (Parent Ex. J at pp. 8-14).  With regard to expressive language skills, the parent reported, among other things, that the student: made different sounds other than crying; made more sounds with a caregiver than when alone; could let you know he was unhappy or angry by making other sounds other than crying; made sounds; used exclamations, such as "uh-oh" or "unh-unh"; used the same word, such as he wanted water or a toy; imitated sounds during play, such as trucks or animals; labeled favorite foods, toys, pet, or other objects; said at least 50 words anyone would recognize; and said "help" (id. at pp. 11-13).  In contrast, the parent noted, among other things, that the student did not: cry a lot and in a loud, clear voice; babble or make repetitive noises; respond vocally to when his name was called; greet others with hello or good-bye; imitate words; or answer "wh" questions with more than a "yes" or "no" (id.).

With regard to receptive language skills, the parent indicated that the student demonstrated the following skills on the REEL-4: easily quieted by a familiar friendly voice when fussy; stopped crying when comforted; responded when someone called his name; responded to an angry voice; temporarily stopped when hearing "no" or "stop"; responded appropriately to simple commands; sat and listened for a full minute; usually carried out a two-step request; let you know he was angry or unhappy by crying; and showed signs of frustration when people did not understand him (Parent Ex. J at pp. 8-11).  The REEL-4 results also indicated that, based on parent report, the student did not demonstrate the following, among other skills: look directly at the speaker's face or turn his head or eyes toward the speaker; listen to music, songs, or other people's conversations; respond to someone you were talking about; enjoy hearing the name of familiar objects; and understand humor (id. at pp. 8-10).

In addition, the director testified about the student's physical development needs.  She explained that the student presented with deficits in sensory processing and regulation and delays in gross and fine motor and visual-motor skills (Parent Ex. Q ¶ 45).  The director testified that the student's "sensory processing deficits" contributed to his difficulty exploring and interpreting the environment efficiently, which was displayed in significant challenges in attending to and completing gross and fine motor tasks (id.).  She further testified that the student's weaknesses in gross, fine, and visual motor and integration skills limited his ability to engage in age-appropriate play and academic activities (id.).

2. Specially-Designed Instruction

As noted above, to qualify for reimbursement under the IDEA, parents must demonstrate that the unilateral placement provided instruction specially designed to meet the student's unique needs, supported by services necessary to permit the student to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).  Regulations define specially designed instruction, in part, as "adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).

Evidence in the hearing record describes RFTS-LC as a "not for profit school that serves students with autism with significant academic, behavioral, and social-emotional needs by providing specially-designed instruction to address their needs" (Parent Ex. R ¶ 3).  The evidence also reflects that RFTS-LC provides "individualized services including ABA instruction, Board Certified Behavior Analyst [BCBA] supervision, Orton Gillingham instruction, speech and language therapy (including PROMPT), feeding therapy, [OT] and related service supervision" (id. ¶ 4).  In addition, related services at RFTS-LC—i.e., speech-language therapy, OT, and music therapy—were "available to all students" (Parent Ex. Q ¶ 14).  The evidence indicates that RFTS-LC offered 12-month programming "incorporating ABA services and the use of the ABA methodology throughout the entire program day" and that staff worked "collaboratively across disciplines to provide tailored and individualized instruction and therapy to meet the needs" of its students (id. ¶¶ 13, 15).

According to the director's testimony, each classroom at RFTS-LC included "one lead instructor," a speech-language pathologist, an occupational therapist, and a behavioral analyst "with up to four additional instructors and one assistant instructor" (Parent Ex. Q ¶¶ 17-18).  The director summarized that, for the 2024-25 school year, RFTS-LC had six total classrooms "with more than a 1:1 student to instructor ratio in all classrooms" (id. ¶ 16).  The director also testified that students were "grouped in classes each program year by both age and developmental level," and "ABA methodology" was used for "instruction in all classrooms" (id. ¶¶ 23-24).  With respect to a curriculum, the director explained that RFTS-LC "incorporate[d] many different curriculum types to specifically address the needs of each student," including the following: "Orton-Gillingham instruction, social skills training, music therapy, [OT], speech and language pathology, and Stern Math" (id. ¶ 24).  In addition, RFTS-LC used the "Skills Based Treatment model to increase a student's ability to communicate desires, tolerate being told 'no,' and [to] transition between more and less desired activities" (id.).

Based on the evidence in the hearing record, the student began attending RFTS-LC on or about September 5, 2024, and his "program consist[ed] of daily ABA-based instruction, daily speech and language therapy, as well as [OT] in 45-minute sessions, related service supervision, and supervision by a BCBA" (Parent Exs. C at p. 1; E ¶ 2; F-G; Q ¶ 43; R ¶ 7).  For the 2024-25 school year, the student's classroom at RFTS-LC consisted of five total students (including this student), and six total instructors (see Parent Ex. Q ¶ 35).  The classroom also included "one classroom supervisor, a speech pathologist, an occupational therapist and a BCBA as well" (id.).  Evidence indicates that the student's school day began at 8:30 a.m. on Monday through Friday, and concluded at 3:00 p.m. on Monday through Thursday and at 1:30 p.m. on Friday (see Parent Ex. Q ¶ 48; see also Parent Ex. F).

In addition to submitting a copy of the student's daily schedule as evidence, the director described a typical day for the student in testimony (see Tr. pp. 27-29; Parent Ex. F).  Specifically, the director testified that, upon his arrival at 8:30 a.m., a teacher and a one-to-one instructor would greet him and he would begin his "curriculum and his day" (Tr. p. 27).  The student would begin working on his morning routine, such as "independently taking off his jacket, hanging it up, knowing where things belong[ed] in his cubby, unpacking his school bag, putting things away, and then he work[ed] immediately on ADL skills" (Tr. pp. 27-28).  According to the director, the student's ADL skills included "toileting, hand washing, tooth brushing," and any other activity the occupational therapist deemed "functional for him as morning skills" (Tr. p. 28).  The director also testified that the ABA instructors used "task analysis" to break down those morning routine tasks into skills (id.).  Additionally, the director testified that the student required one-to-one instruction using ABA to make "educational, independent life skills and social emotional progress" (Parent Ex. Q ¶ 33).

With respect to the student's daily schedule, the director explained that it was divided into 45-minute sessions, "where it [wa]s either another ABA instructor working on curriculum from his [RFTS-LC educational plan]," or it was a related service provider—OT or speech-language therapy—working on the student's goals (Tr. p. 28).^[22]  For example, a review of the student's daily schedule reflects 45-minute sessions where the student worked on reading goals, mathematics goals, goals for play skills, and ADL skills and goals (see Parent Ex. F).  In reading, the director indicated that the student worked on "pre-academic skills," such as "identifying alphabet letters, following directions, [and] being able to understand language" (Tr. p. 32).  In mathematics, the director noted that the student worked on "[S]tern [M]ath goals, which [wa]s the curriculum" followed at RFTS-LC (id.).  She reiterated that, given the student's lack of basic skills, RFTS-LC targeted his "one-on-one direct needs in order for him to progress in all areas of his development" (id.).

The director also noted that the student had music therapy in a group once per week, and the student worked on "some group goals" (Tr. p. 28).  During group work, the director testified that the student continued to have his one-to-one instructor and followed his "protocols for reinforcement, prompting," and his "behavior plan throughout the entire day" (id.).  The director further testified that there were "specific days of the week where [students went] on community outings to work on community goals," engaged in a "cooking group," or engaged in a "movement group" (Tr. pp. 28-29).  The director also testified that, overall, the student's entire school day was "broken down by different goals being targeted" (Tr. p. 29).

When asked about the percentage of the student's day that was "allocated to academic learning," the director explained that the student worked on academics every day because he was "just emerging verbal[ly]" and, given his "very limited, receptive, [and] expressive communication" skills, the student was working on "functional and foundation skills" (Tr. p. 30).  She explained that "academics" for this student included building a vocabulary, following directions, understanding how to use materials, and being able to functionally communicate (id.).  The director further explained that, as a "new learner" at his age, "his entire day [wa]s based on academics" and "something [wa]s taught every single session, even lunch" (id.).

Turning to the student's RFTS-LC educational plan for the 2024-25 school year, it was noted that the student's "current learning [wa]s supported through a highly individualized approach that emphasize[d] the principles of [ABA] to acquire, maintain, and generalize new skills" (Parent Ex. L at p. 1).  It was further noted that the student's "[i]nstruction [wa]s broken down into discrete, manageable steps, presented in a fast-paced format to foster success and build momentum" (id.).  According to the educational plan, although the student had "shown progress in responding to structured teaching," he continued to require "high rates of reinforcement for foundational[,] socially appropriate behaviors, such as remaining seated and following simple directives" (id.).  At that time, the student's program "target[ed] skills incrementally using reinforcement" (id.).

As noted previously, the student's RFTS-LC educational plan targeted skills in the following eight domains: language and communication; the use of an AAC device; imitation, visual performance, and fine motor skills; group skills and classroom routines; social, play, and leisure skills; ADL, health, and wellness skills; community and safety; and behavior skills (see Parent Ex. L at pp. 2-9).  The student's language and communication goals included improved receptive language skills by following directions, matching, and identification skills (id. at pp. 2-3).  The student's expressive language goals included improved requesting (manding) skills, increased vocabulary, and intraverbal skills (id. at pp. 3-4).  Regarding the AAC device, the student's goals targeted improvement in using the device by clearing the page on the device, transferring his device from one activity to another, adjusting the position and volume of his device, and navigating pages (id. at pp. 4-5).  The student also had goals to improve imitation, visual performance, and fine motor skills through activities such as motor imitation, placing blocks to copy a design, snipping index cards, and using a functional tripod grasp (id. at pp. 5-6).  The educational plan also included goals to improve the student's group skills and classroom routines, goals targeted his ability to sit at a group table, participate in group work, raise his hand, and independently complete his arrival and departure routines (id. at pp. 6-7).  The student's play and leisure goals sought to improve his conversational skills, engage in simple games, play with toys, take turns, and independently complete his activity schedule (id. at p. 7).  In the area of ADL, health, and wellness skills, the student's goals focused on improving his handwashing routine, eating with a utensil, using napkins, cleaning up after a meal, maintaining yoga poses, throwing a tennis ball, and tossing a basketball (id. at pp. 7-8).  For community and safety goals, the educational plan targeted the student's ability to transition next to a teacher within the hallways, walking next to a teacher, and waiting in the community (id. at p. 8).  Finally, the student's behavior goals focused on decreasing challenging behaviors including aggression, flopping, and climbing (id. at pp. 8-9).

In the area of speech-language therapy, the evidence in the hearing record reveals that the student worked on goals for his receptive and expressive language skills.  For example, the student's receptive language goals included improving his following direction skills, learning emerging receptive identification skills (matching skills) and improving his receptive identification skills (Parent Ex. Q ¶ 44).  The student's expressive language goals included improving requesting skills, increasing his expressive vocabulary and improving intraverbal skills (id.).

In OT, the evidence reflects that the student's goals targeted his sensory processing skills so that he could effectively interact with people and objects in community and home environments, and improve body spatial awareness for age-appropriate performance in all environments (see Parent Ex. Q ¶ 45).  The student also needed to increase overall strength, postural control, and endurance necessary for age-appropriate gross motor skills for functional participation in school and home play activities (id.).  The student's goals also included improved shoulder, arm, and hand control for greater success in tasks requiring controlled arm movements and ball skills (id.).  The student also worked on demonstrating improved fine motor control and visual motor skills for greater success with classroom manipulatives and age-level tasks (id.).

In addition to the foregoing, a BCBA at RFTS-LC developed a BIP for the student to address maladaptive behaviors identified as flopping, climbing, and aggression (see Parent Ex. Q ¶ 37-38; see generally Parent Ex. K).  The BIP included operational definitions of each identified behavior; a proactive plan to address behaviors during arrival routine, transitions around school and in the community, reinforcement, discrimination between work and play areas, and work; environmental modifications; and reactive strategies (see Parent Ex. K at pp. 1-3).  As noted in the student's RFTS-LC educational plan, the "hypothesized function for these challenging behaviors c[ould] vary between escape from demand and access to preferred activities [or] items" (Parent Ex. L at p. 1).  It was further noted in the educational plan that the "intervention strategies implemented in his [BIP] proactively decrease[d] future frequency of maladaptive behaviors" (id. at p. 2).  According to the director's testimony, "[b]ehavioral data [wa]s taken throughout the day," including "records of the severity and frequency of problematic behavior," and all staff who worked with the student were trained in implementing the BIP (see Parent Ex. Q ¶¶ 27, 40).

Overall, a review of the evidence in the hearing record, as described above, supports a finding that RFTS-LC provided the student with specially-designed instruction to meet his needs during the 2024-25 school year.

3. Progress

Generally, the district argues that the student's unilateral placement at RFTS-LC during the 2024-25 school year was not appropriate because, contrary to the parents' contentions, the evidence does not support a finding that the student made progress, and therefore, the evidence fails to demonstrate that RFTS-LC provided specially-designed instruction.

It is well settled that a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364).  However, while not dispositive, a finding of progress is, nevertheless, a relevant factor to be considered in determining whether a unilateral placement is appropriate (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

Contrary to the district's contentions, the hearing record contains sufficient evidence that the student made progress at RFTS-LC during the 2024-25 school year.  For example, the student's educational plan includes reports of varying levels of progress on several goals that were introduced, including mastery of two visual performance goals (see Parent Ex. L at pp. 2-9).  In addition, the educational plan included mid-year narrative descriptions of the student's progress.  For example, the educational plan noted that, in the area of receptive language skills, the student "made progress with matching pictures to objects and objects to pictures," and he could "scan and identify items in a field size of [three to five] items" presented on a table (id. at p. 3).  Similarly, the educational plan reflected that, behaviorally, the student had shown "some progress" in following the established rules and routine (id. at p. 9).  It was also reported in the educational plan that the student's "engagement in aggressive behaviors, such as physical aggression towards instructors, occur[ed] primarily when prompted to engage in non-preferred tasks or transition[ed] away from preferred activities" (id.).  The student also demonstrated decreased flopping during transitions, and reduced resistance when moving to his play and work area (id.).  The student also displayed a "noticeable reduction in self-stimulatory behaviors such as climbing on teachers and furniture, indicating an improvement in self-regulation and respect for personal space" (id.).  Therefore, overall, it was noted that "these positive changes suggest[ed] progress in [the student]'s ability to adapt to classroom demands, though further interventions to address aggressive behaviors and task transitions [wa]s continuously needed at this time" (id.).

D. Equitable Considerations

The IHO did not address whether equitable considerations weigh in favor of the parents' request for reimbursement for the costs of the student's tuition at RFTS-LC (see IHO Decision).  The district did not put forth any argument related to equitable considerations in its answer and cross-appeal.

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.  Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).  With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]).  This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]).  Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

The parents argue that the IHO erred in failing to address equitable considerations.  Specifically, the parents assert that they cooperated with the district, attended the CSE meeting, voiced concerns at the CSE meeting and visited the assigned school site.  In addition, the parents contend that the parent testified to her understanding of the terms of the RFTS-LC enrollment contract.  Given that the IHO did not reach the issue of equitable considerations and the district did not address any equitable considerations in its answer and cross-appeal, the parents argue that the balancing of the equities are in their favor.  Review of the hearing record supports the parents' contention.  The parents demonstrated that they cooperated with the CSE, provided timely 10-day notice of their intention to unilaterally enroll the student at RFTS-LC and seek public funding for the cost of the student's attendance, and the district has made no attempt to refute their arguments.

VII. Conclusion

Having found that the evidence in the hearing record does not support the IHO's finding that the district offered the student a FAPE for the 2024-25 school year, that the evidence supports a determination that the parent's unilateral placement at RFTS-LC was appropriate and that equitable considerations weigh in favor of the parent's requested relief, the IHO's decision must be reversed.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision, dated March 21, 2025, is modified by reversing the IHO's determination that the district offered the student a FAPE for the 2024-25 school year; and

IT IS FURTHER ORDERED that the district must reimburse the parents or fund the costs of the student's tuition at RFTS-LC for the 2024-25 school year.

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Footnotes

[1] Similarly, when a preschool student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local Committee on Preschool Special Education (CPSE) that includes, but is not limited to, parents, teachers, an individual who can interpret the instructional implications of evaluation results, and a chairperson that falls within statutory criteria (Educ. Law § 4410; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.1[mm], 200.3, 200.4[d][2], 200.16; see also 34 CFR 300.804).

[2] State law provides that "[a] child shall be deemed a preschool child through the month of August of the school year in which the child first becomes eligible to attend" school as a school-aged student (see Educ. Law §§ 3202[1]; 4410[1][i]; 8 NYCRR 200.1[mm][2]).  Thus, for July and August 2024, the student remained entitled to receive special education and related services under the CPSE (see Educ. Law §§ 3202[1]; 4410[1][i]; 8 NYCRR 200.1[mm][2]).  However, the hearing record does not include any evidence or information concerning special education programs or related services the student may or may not have received during July and August 2024, whether under the CPSE or the CSE.  Moreover, the hearing record does not include any copies of the student's CPSE IEPs (see generally Tr. pp. 1-63; Parent Exs. A-R; Dist. Exs. 1-9; IHO Exs. I-II).

[3] State law defines SEIT services (or, as referenced in State regulation, "Special Education Itinerant Services" [SEIS]) as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "[SEIS] for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available athttps://www.nysed.gov/special-education/special-education-itinerant-services-preschool-children-disabilities).  A list of New York State approved special education programs, including SEIS programs, can be accessed at https://www.nysed.gov/special-education/approved-preschool-special-education-programs.  SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii]; see Educ. Law § 4410[1][k]).

[4] For the purpose of clarity, use of the term "parent" refers solely to the student's mother.

[5] The January 2024 progress report referenced in the March 2024 classroom observation report was not included in the hearing record as evidence.

[6] It was noted within the April 2024 psychological evaluation report that the student had exposure to both English and Hebrew, he was "spoken to and communicate[d] in English," and the evaluation was conducted in English (see Dist. Ex. 4 at pp. 1, 4-5).

[7] The student's eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).  According to the May 2024 IEP, the projected implementation date for the student's special education program was September 1, 2024 (see Dist. Ex. 1 at p. 1).

[8] In addition to the district's evaluative information, it appears that the May 2024 CSE also gleaned information from a SEIT report, a speech-language therapy progress report, an OT progress report, and a PT progress report to develop the student's May 2024 IEP (see Dist. Ex. 1 at pp. 2-5).  None of these reports were entered into evidence at the impartial hearing.

[9] In the letter, the parent referred to RFTS, rather than RFTS-LC (see Parent Ex. B); however, there is nothing in the hearing record to indicate that the referenced RFTS differed from RFTS-LC.

[10] RFTS-LC has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).

[11] The parents' attorney indicated in her opening statement that the parent would testify about her "interactions" with the district and her decision to unilaterally place the student at RFTS-LC for the 2024-25 school year (Tr. p. 16).  The district's attorney indicated that she intended to cross-examine all three of the parents' witnesses, including the parent (see Tr. p. 18).  However, for reasons not explained in the hearing record, the district's representative who participated in the third and final day of the impartial hearing—rather than the district's attorney who stated the intention to cross-examine the parents' witnesses at the previous impartial hearing date—declined the opportunity to cross-examine the parent, who had submitted an affidavit into the hearing record in lieu of her direct testimony (see Tr. pp. 48-49).

[12] 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).

[13] Additional examples of management needs can be found in the general directions for the use of the State's model IEP form (see "General Directions to Use the State's Model IEP form," Office of Special Educ. Mem. [Rev. Oct. 2023], available athttp://www.p12.nysed.gov/specialed/formsnotices/IEP/directions.htm). 

[14] The precise language of the recommendations from the April 2024 psychological evaluation report are noted parenthetically for comparison to the actual language of the management needs as recommended in the May 2024 IEP.

[15] The May 2024 CSE did not recommend paraprofessional services in the student's IEP for the 2024-25 school year (see Dist. Ex. 1 at pp. 23-25).  The hearing record is devoid of evidence indicating whether the May 2024 CSE discussed how, if at all, the support from the student's individual SEIT was used or affected his behaviors in preschool or perhaps more importantly, how the absence of that individual support may influence the student's behavior transitioning to kindergarten for the 2024-25 school year (see generally Tr. pp. 1-63; Parent Exs. A-R; Dist. Exs. 1-8; IHO Exs. I-II).

[16] State regulations provide that a special class placement with a maximum class size not to exceed eight students, staffed with one or more supplementary school personnel, is designed for "students whose management needs are determined to be intensive, and requiring a significant degree of individualized attention and intervention" (8 NYCRR 200.6[h][4][ii][b]).

[17] To the extent that the parents argue that evaluations performed at RFTS-LC established that the student required daily, 45-minute sessions of OT and speech-language therapy, the hearing record only includes a September 2024 speech-language therapy evaluation—which did not refer to any frequency or duration of recommended services for the student—and does not include an OT evaluation conducted at RFTS-LC (see Parent Ex. J at p. 1; see generally Tr. pp. 1-63; Parent Exs. A-I; K-R; Dist. Exs. 1-9; IHO Exs. I-II).  The hearing record does include testimony indicating that the student received daily, 45-minute sessions of OT and speech-language therapy, as well as a copy of the student's schedule at RFTS-LC for the 2024-25 school year, which corroborates that the student was scheduled to receive OT and speech-language therapy services daily in 45-minute sessions (see Parent Exs. F; Q ¶ 43; R ¶ 7).  The evidence also reflects that RFTS-LC did not schedule the student to receive any PT services (see Parent Ex. F).  In addition, the hearing record is sparse with respect to detailing the duration and frequency of parent counseling and training provided by RFTS-LC.  For example, while testimony indicates that RFTS-LC provides parent training, with group sessions throughout the program as well as individual training sessions, it does not indicate how often training sessions occur or the duration of those services (see Parent Ex. Q ¶ 29).  In any event, information about the related services that the student ultimately received at RFTS-LC was not before the May 2024 CSE and, therefore, can not relied upon to retrospectively assess the CSE's recommendations for the student (see C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, at *13 [S.D.N.Y. Dec. 23, 2013] [finding that "a substantively appropriate IEP may not be rendered inadequate through testimony and exhibits that were not before the CSE about subsequent events . . . that seek to alter the information available to the CSE"], citing R.E., 694 F.3d at 186-88).

[18] In a footnote, the parents also assert that the "teachers who provide ABA therapy" in the State must "meet specific licensing or certification requirements," and cite to Education Law § 8804 and 8 NYCRR 79.17 as support for this assertion (Req. for Rev. ¶ 23, n.1).  The parents' argument on this point is misleading because it misstates the applicable law.  In New York, ABA, the practice of ABA, and the licensure of professionals who may permissibly hold themselves out as a "licensed behavior analyst" or a "certified behavior analyst assistant" have been defined and governed by State statute (Educ. Law §§ 8801-8803).  For example, "'ABA means the design, implementation, and evaluation of environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior" (Educ. Law § 8801).  It is similar to how, for example, the service of speech-language therapy that may be found on a student's IEP is provided by a speech-language pathologist (see Educ Law Art. 159).  But unlike speech-language pathology, the practice of ABA is not limited to a "licensed behavior analyst" or "certified behavior analyst assistant" because a very broad exception allows certified teachers and teaching assistants to continue providing ABA to students in the educational environment, an educational practice that long predates the State's statutory oversight of ABA (Educ. Law § 8807[2]-[3]).  Therefore, to the extent that the parents contend that duly certified teachers in a public school could not, without specific licensing or certification requirements, use or practice ABA in the proposed classroom, this argument is without merit.

[19] The same language was used in the March 2024 classroom observation report, which referenced a SEIT progress report and the SEIT's use of ABA techniques (see Dist. Ex. 3 at p. 2).

[20] At times, the ABLLS is also referred to in the hearing record as the ABLLS-R (see, e.g., Parent Exs. L at p. 2; Q ¶ 31;

[21] The speech-language pathologist noted within the evaluation report that the PLS-5 testing results should be interpreted with caution, as it was "not designed for children with autism" (Parent Ex. J at p. 6).  She further noted that the student's "unique communication needs necessitated modification of standardized testing procedures, thereby making norm-referenced scores inapplicable" (id.).

[22] The director indicated that, when she used the term "IEP," she was referring to the student's RFTS-LC educational plan and not the IEP developed by the district (Tr. pp. 30-31).  She indicated further that, although the student's May 2024 IEP had been reviewed, RFTS-LC developed its own "IEP" or educational plan for the student based on the assessment of his skills (Tr. p. 31).