STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-250
Application of a STUDENT WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
The Law Office of Deborah A Ezbitski, attorneys for petitioners, by Deborah A. Ezbitski, 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 daughter's tuition at the Dwight School (Dwight) for the 2024-25 school year. The district cross-appeals from that portion of the IHO's decision which found that equitable considerations weighed in favor of the parents' requested relief. The appeal must be dismissed. 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]). 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
Evidence in this case reveals that the student attended a bilingual, nonpublic school for kindergarten through fifth grade (2020-21 school year) (see Dist. Ex. 4 at p. 2).[1] Prior to entering fifth grade, the parents referred the student for a neuropsychological evaluation in August 2020 (August 2020 neuropsychological evaluation) due to concerns "that learning ha[d] not come easily" to the student notwithstanding her "strong desire to learn" (Parent Ex. J at p. 1).[2] According to the August 2020 neuropsychological evaluation report, the psychologist determined the student's "current level of intellectual functioning" through the administration of the Wechsler Intelligence Scale for Children—Fifth Edition (WISC-V) (id. at pp. 6, 24). The student earned a full-scale intelligence quotient (IQ) of 97, which fell within the average range (id.). The psychologist noted that "[s]ome scatter emerged among [the student's] index scores" obtained from the "five different cognitive domains," ranging from low average to average (id.). More specifically, the student's performance on the verbal comprehension, visual spatial, fluid reasoning, and processing speed indices fell within the average range, while her working memory index score fell within the low average range (id.). The psychologist further indicated that a "greater degree of scatter was also seen in [the student's] performance on the individual WISC-V subtests," and therefore, in light of the "substantial scatter" in the student's WISC-V profile, using her full scale "IQ score as a summary index of her overall intellect [wa]s not indicated" (id., emphasis in original).
To shed more light on the student's "cognitive strengths and weaknesses," the psychologist computed a general ability index (GAI) score "without the influence of working memory and processing speed factors" (Parent Ex. J at p. 6). The student's GAI score fell in the average range and, according to the psychologist, was "not statistically different" from the student's full-scale IQ (id.). The psychologist also calculated a cognitive proficiency index (CPI) score "based solely on" the student's performance on the working memory and processing speed subtests; the psychologist indicated that the "CPI score fell in the low average range," which was "statistically lower than her GAI score" (id.). The psychologist further indicated that the student's performance on the auditory working memory index fell in the average range, and was higher than her general working memory index score (id.). Overall, the psychologist noted that the student's performance "highlighted relatively greater weakness for [the student] in visual working memory" (id.).
Next, the psychologist described the student's performance in the verbal comprehension domain, noting average or higher scores (see Parent Ex. J at p. 6). The student's "fund of word knowledge, as measured by her ability to define orally presented words, fell in the high average range," and was reportedly her "highest WISC-V subtest performance" (id., emphasis in original). On subtests assessing visual spatial skills, the student's performance fell in the average range (id. at p. 7). On the fluid reasoning subtests, which examined the student's "engagement in novel problem solving and interpreting visual patterns and sequences," the student performed within the average range (id.). On an untimed subtest "examining visual pattern recognition and analysis," the student "achieved above the expected mean for her age group" (id.). The psychologist indicated that the student's "variably reduced attention to the nuanced details affected her subtest performance" (id.). On a timed, nonverbal test of quantitative reasoning, the student "achieved [a score] at the low end of the average range" (id.).
Turning to the student's performances on the working memory subtests, the psychologist noted that the testing results were "quite varied" (Parent Ex. J at p. 7). The psychologist explained in the report that these subtests measured the student's "ability to hold and manipulate information in immediate memory" (id.). On a verbal working memory task and the letter-number sequencing task, the student's overall performance fell within the average range (id.). However, in contrast, on a visual working memory task—which required the student to "recall displayed pictures in sequence"—her performance fell "well below average" (id.).
Similar to the student's working memory testing results, her performance on the processing speed index subtests—measuring her "ability to process simple or routine information fluently and automatically along with speeded graphomotor" skills—were also described by the psychologist as "quite variable" (Parent Ex. J at p. 7). She performed in the low average range on a timed task that required her to quickly copy symbols paired with a number according to a key (id.). However, on a visual scanning task, the student performed "much better and above average" (id.).
Next, the psychologist summarized the student's academic achievement in the areas of reading, spelling, and mathematics assessed through the administration of the Wechsler Individual Achievement Test—Third Edition (WIAT-III), the Gray Oral Reading Test—Fifth Edition (GORT-5) (Form A), the reading fluency subtest from the Woodcock-Johnson Psychoeducational Battery—Third Edition (WJ-III), and selected subtests from the Comprehensive Tests of Phonological Processing—Second Edition (CTOPP-2) (see Parent Ex. J at p. 8). Overall, the psychologist indicated that the testing results revealed the student's "relative, subtle weaknesses . . . in aspect[s] of reading and expository writing, with greater learning challenges now documented in all aspects of [her] math[ematics] skills," which the psychologist ultimately found were consistent with a specific learning disorder in mathematics (i.e., dyscalculia) (id.).
In the area of reading, the psychologist administered selected subtests from the CTOPP-2 to assess "several of the foundation[al] cognitive skills that underl[ay] reading," including rapid automatic naming and phonological awareness, noting further that working memory—as assessed through the WISC-V—was another cognitive skill that "play[ed] a role in early reading acquisition" (Parent Ex. J at p. 8). According to the psychologist, in the area of rapid automatic naming and as measured by the CTOPP-2, the student performed in the "lower limits of the average range," which the psychologist noted was "relatively lower than expected compared" to her "verbal intellectual abilities" (id.). As measured by the CTOPP-2, the psychologist found that the student's performance on phonological awareness tests also fell within the lower end of the average range overall (id.). The psychologist noted further that, on each CTOPP-2 phonological awareness subtest, the student performed "below her rising [fifth] grade level" and had expended "tremendous effort," which revealed that "these skills [we]re not yet automatic" for the student (id.).[3] In addition, the psychologist indicated that "some scatter" existed for the student's scores on "three subtests assessing phonological awareness" (id.). For example, the psychologist noted that while the student performed within the low end of average on the blending words subtest, she performed within the average range on tasks examining phonological awareness and phonemic isolation (id.).
Assessing the student's overall reading skills based on the administration of the WIAT-III, the student's scores fell within the average range (see Parent Ex. J at p. 8). The student's ability to read words in isolation fell at "an above age level," and her phonological decoding skills fell within the average to high average range (id. at pp. 8-9). The student's silent reading fluency—as measured by the WJ-III—fell within the average range, and her oral reading fluency skills, examined using two subtests on the WIAT-III, fell within the average range (id. at p. 9). On the WIAT-III reading comprehension subtest, the student achieved results within the average range (id.). The psychologist also administered the GORT-5 to assess the student's reading skills, and reported that, overall, her GORT-5 oral reading fluency, reading speed, and reading accuracy scores fell within the average range (id.). However, on the GORT-5, the student's reading comprehension score was "lower," indicating that the student exhibited challenges in initially understanding text, as well as difficulty making inferences (id.).
Next, in the area of writing, the student's overall performance on "tests of written language fell within the lower limits of the average range" on the WIAT-III (Parent Ex. J at p. 9). The student performed within the average range in the following areas: spelling words from dictation in isolation and sentence composition (losing points, however, for "inattentive mechanical errors" in punctuation and capitalization) (id. at pp. 9-10). The student's essay writing skills fell within the "low end of average and below grade placement" (id. at p. 10).[4]
Turning to mathematics achievement testing based on the WIAT-III, the August 2020 neuropsychological evaluation report indicated that the student's overall performance on untimed subtests fell within the low average range, which, according to the psychologist, fell "below expectation compared to [the student's] measured intellect" but was consistent with a specific learning disorder in mathematics (Parent Ex. J at p. 10). The psychologist also noted that, when solving applied mathematics word problems "accompanied by visual aids (e.g., graphs, charts, illustrations)," the student performed within the low average range (id.). On a series of timed subtests assessing her automaticity solving simple addition, subtraction, and multiplication facts, the student performed within the borderline range (id.).
In addition to the foregoing, the psychologist administered a battery of neuropsychological measures to the student to examine her skills in language; fine motor speed and dexterity; visual-motor integration; nonverbal memory, verbal memory, and learning; and attention and executive functioning (see Parent Ex. J at p. 11). The testing results revealed that the student exhibited "mild weaknesses . . . with sustained attention and executive functioning," as well as a mild weakness . . . in expressive word retrieval" (id.). The psychologist indicated that "these weaknesses in turn affected some of [the student's] performances on tests examining other cognitive abilities" (id.). For example, on a test of word retrieval, the student scored within the low end of the average range, but on a purely auditory test of listening comprehension the student scored within the average range (id.). According to the psychologist, "[f]luctuations in [the student's] attention" affected her ability to answer some of the comprehension questions (id.).
The student showed "mild scatter among her visual spatial and visual perception abilities," with scores ranging from the "25th" to the "63rd [percentiles] on WISC-V subtests examining fluid [or] nonverbal reasoning and visual spatial skills" (Parent Ex. J at p. 11, emphasis in original). On the Hooper Visual Organization Test (HVOT)—which required the student to "mentally arrange displayed puzzle pieces into a coherent whole and identify the assembled object"—the student's score fell below average (id.).
Based on the student's testing results, the psychologist determined that she met the criteria for the following diagnoses: attention deficit hyperactivity disorder (ADHD), predominantly inattentive type (ADHD); and specific learning disorder with impairment in mathematics (dyscalculia) (see Parent Ex. J at pp. 16-17). The psychologist also noted that the student exhibited "mild or more subtle learning issues as are often seen in students with [d]yslexia," and that her "positive response to the interventions and supports received to date [wa]s encouraging" (id. at p. 16, emphasis in original).[5]
In light of the foregoing and to address the student's needs, the psychologist recommended that the parents "seek a new school placement" for the student for fall 2021 when the student entered sixth grade (Parent Ex. J at p. 18). The psychologist noted that the student's then-current nonpublic school placement "with its dual French-English curriculum, place[d] great stress on [the student's] weaker Language Arts learning," and thus, any "future school placement in an English speaking school [wa]s recommended" (id.). In addition, the psychologist recommended that the parents seek a "school that [wa]s highly structured," taught students with "average or higher intellect," and "offer[ed] academic instruction at grade level rather than offering an accelerated academic curriculum" (id.). The student also required "specialized academic support to continue to advance her reading and writing skills, and to address her substantial weaknesses in mathematics" (id.). The psychologist indicated that other options for a school placement included a "specialized school for students with learning disabilities in which she would receive more intensive learning remediation than in a mainstream school," or a "mainstream school that offer[ed] learning support," noting however that the "level of such support would likely not meet [her] needs in full" and would require "added learning [or] tutoring support outside of school" (id.).
The psychologist also included recommendations to support the student's "weaknesses in executive functioning," such as classroom and testing accommodations, as well as recommending that the student receive "targeted learning support aimed at improving her math[ematics] skills" (Parent Ex. J at pp. 18-20).
As noted above, the student continued to attend the same nonpublic school for fifth grade during the 2020-21 school year she had attended since kindergarten (see Dist. Ex. 4 at p. 2).[6] However, the evidence also reflects that, for sixth grade during the 2021-22 school year—and consistent with the psychologist's recommendation in the August 2020 neuropsychological evaluation report to find a new school placement for sixth grade—the parents placed the student at the Stephen Gaynor School (Stephen Gaynor), where she remained until the conclusion of eighth grade (2023-24 school year) (id. at pp. 1-2; see Parent Ex. L ¶ 11). In fall 2021, the parents "requested a meeting with the CSE" (Parent Ex. L ¶ 10). In or around the same time in October 2021, the parents had the student reevaluated (October 2021 academic reevaluation) by the same psychologist who conducted the student's August 2020 neuropsychological evaluation (compare Dist. Ex. 4 at p. 1, with Parent Ex. J at p. 1).[7]
Initially, the October 2021 academic reevaluation report referred the "interested reader" to the August 2020 neuropsychological evaluation for a "detailed summary of [the student's] developmental, medical, behavioral, and educational histories up to that time" (Dist. Ex. 4 at p. 1).[8] The October 2021 academic reevaluation did not include a readministration of all of the assessments included in the August 2020 neuropsychological evaluation, but instead, included the administration of selected subtests from the WISC-V (working memory), the CTOPP-2 (phonological awareness and rapid symbolic naming), the WIAT-III (academic achievement), and the GORT-5 (Form B) (reading) (compare Dist. Ex. 4 at pp. 3-4, with Parent Ex. J at pp. 4-5).
As reexamined using subtests from the WISC-V for working memory, the student's performance revealed scores within the average range (see Dist. Ex. 4 at p. 4). The psychologist opined that the student's scores indicated "some mild persisting weakness for her in this cognitive skill" (id.). On a test of visual working memory, the student showed "improvement," as her testing results increased to the "lowest limit of the average range for her age" (id.). On a test of verbal working memory, the student's performance fell within the average range (id.). However, the student exhibited a "weakness in sequencing" (id.).
The student's phonological awareness score, as measured by the CTOPP-2, fell within the average range (see Dist. Ex. 4 at pp. 4-5). The psychologist noted that the student had made "particular gains in her ability to isolate phonics [or] sounds within words since this skill was last examined in August 2020" (id. at p. 5). However, upon reevaluation, the student's testing revealed an "ongoing weakness" in rapid symbolic naming, "with little gain seen in this skill" since her previous evaluation (id.).
In the area of reading, the student's results on the WIAT-III subtests revealed a "similar pattern of findings" from the previous evaluation, with "stronger sight word reading skills than phonological decoding skills" (Dist. Ex. 4 at p. 5). Notably, the student's single word reading skills fell within the high average range, and her phonological decoding skills fell within the average range (id.). The student's oral reading accuracy, rate, and fluency were reassessed using the GORT-5 and a WIAT-III subtest (oral reading fluency) (id.). The student's overall GORT-5 reading fluency score was average, and it was noted that her reading accuracy had improved as assessed with the WIAT-III, with her score falling within the average range (id.). With respect to reading comprehension, on the WIAT-III, the student's skills fell within the high average range, which the psychologist explained was "largely due to improvement in [her] ability to understand text at an inferential level" (id. at pp. 5-6). On the GORT-5, the student was not allowed to refer back to the text to answer comprehension questions, yielding a score within the average range (id. at p. 6).
In the area of written expression, the student performed within the average range on WIAT-III subtests assessing her spelling accuracy and her ability to write single sentences (see Dist. Ex. 4 at p. 6).[9] The student also performed within the average range on the essay composition subtest, but without engaging in any "preplanning" and requiring prompting to use all of the time allowed to generate the essay (id. at pp. 6-7).
Finally, in mathematics, the psychologist indicated that the student "continue[d] to demonstrate significant problems in all aspects," and had performed in the "below grade and age expected levels" (Dist. Ex. 4 at p. 7).[10] Overall, the psychologist noted that on non-timed tasks, tests of conceptual mathematics understanding, and mathematics calculation skills, all of the student's scores fell within the low average range (id.). On timed tasks measuring her ability to "retrieve rote addition, subtraction, and multiplication math facts," the student also performed within the low average range (id.).
In summarizing the student's October 2021 academic reevaluation results, the psychologist found that the testing results continued to support the student's previous diagnosis of a specific learning disorder with impairment in mathematics (see Dist. Ex. 4 at p. 7). According to the psychologist, the student had made "very limited and slow gains" in mathematics since August 2020, and noted that, as "outlined in her initial evaluation report, [the student] require[d a] specific learning methodology to help her make gains" and required "frequent repetition and practice to master and retain math skills" (id.). In reading, the psychologist noted that the student had received "learning support" in this area since second grade "both in and outside of school" and that this "reading remediation" had benefited the student (id. at pp. 7-8). The psychologist noted that, for reading comprehension, the student required "specific learning remediation targeted at teaching her skills to enable her to pull for meaning more actively while initially reading," and in writing, she would "greatly benefit from receiving specific instruction in grammar, writing mechanics, and essay composition in her future studies" (id. at p. 8).
Next, the psychologist identified the student's "weaknesses with sustained attention" and "executive functioning skills" as another "barrier" to her learning (Dist. Ex. 4 at p. 8). To address these weaknesses, the psychologist noted that a "smaller classroom setting with a lower teacher[-to-]student ratio w[ould] provide [the student] with less distractions during learning than [would] a mainstream classroom setting" (id.). According to the psychologist, a smaller classroom setting would allow the student's teacher to "better monitor" her attention and to "more readily" provide redirection back to a task (id.).
Turning to more specific recommendations to address the student's needs, the psychologist concluded that she required a "placement as a [six]th grade middle school student in a specialized school setting specifically designed to meet the learning needs of students with learning disorders" (Dist. Ex. 4 at p. 8 [emphasis in original]). The psychologist further noted that the student's then-current placement at Stephen Gaynor—as a "specialized school for students with learning disabilities"—was "well-supported by these findings" (id.). The psychologist indicated that, in this specialized setting, the student could receive "specialized instruction" on a "daily basis" to "advance her Language Arts skills and to address her substantial challenges with math learning" (id.). In addition, the psychologist indicated that, in this setting, all of the student's "classmates" had "learning issues, which should help reduce[] the academic gap between [the student] and her peers" and which, in turn, should "help to improve [the student's] self-esteem and confidence as a learner" (id.). As a final point, the psychologist indicated that "[a]ll other recommendations offered in [the student's] August 2020 [neuropsychological evaluation report] remain[ed] appropriate for her" (id. at pp. 8-9).[11]
Subsequently, and based upon the parents' request for a meeting, a CSE convened in March 2022 and found the student eligible to receive special education as a student with a learning disability (Parent Ex. L ¶ 10).[12] Testimonial evidence reflects that the March 2022 CSE "only recommended" special education teacher support services (SETSS), the parents objected to the recommendation, and therefore, the parents continued to unilaterally place the student at Stephen Gaynor "until she graduated from [eigh]th grade in June of 2024" (id. ¶¶ 10-11). The parents acknowledged that they had been "notified of and [had] attended every IEP meeting the CSE ha[d] held since then" (i.e., March 2022 CSE meeting) (id. ¶ 12).[13]
On February 26, 2024, the parent executed an enrollment contract with Dwight for the student's attendance during the 2024-25 school year (see Parent Ex. C at pp. 1, 5).[14]
On July 15, 2024, a CSE convened to conduct the student's annual review and to develop the student's IEP for the 2024-25 school year (ninth grade) (see Dist. Ex. 1 at pp. 1, 18). Finding that the student remained eligible to receive special education as a student with a learning disability, the July 2024 CSE recommended a general education placement with integrated co-teaching (ICT) services 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), and three periods per week of SETSS as support for the student's core subjects and executive functioning needs (group setting) (id. at p. 12).[15]
In a 10-day notice letter dated August 15, 2024, the parents notified the district of their intention to unilaterally place the student at Dwight for the 2024-25 school year and to seek public funding for the costs of the student's tuition and expenses therein (see Parent Ex. B at p. 1).[16] Evidence in the hearing record indicates that Dwight offered the "Quest program," which was described as an "integrative support program" for students with "special education diagnoses" who required "significant support in school" (Parent Ex. M ¶ 8). Evidence further described Quest as providing students with "strength-based one-on-one academic and organizational training in school," and as a "program implemented to support students with learning differences as they participate[d] in the mainstream curriculum at Dwight" (Parent Ex. G at p. 2).
In a letter to the district dated September 3, 2024, the parents described a telephone call with a special education lead teacher at the assigned public school site held on August 28, 2024 (see Parent Ex. K at p. 1). Based on that conversation, the parents learned that the "ICT class could have an enrollment of up to 34 students," which, according to the parents, was "large" and "not appropriate" for the student (id.). The parents indicated that such a large classroom would not provide the student with sufficient opportunities for individual assistance and would be distracting (id.). Additionally, the parents noted that they were unable to ascertain "what academic subjects" the student would "miss when pulled out for SETSS" (id.). The parents further noted that the "proficiency rates and graduation rates" of the assigned public school site were "low," a new "ELA curriculum" had been introduced and specific information about it was not available at the time of the telephone conversation, and the "school's emphasis on environmental issues [wa]s not of interest" to the student (id.). The parents pointed out that, within the neuropsychological evaluation and academic reevaluation reports, the psychologist recommended that the student attend a "specialized school setting specifically designed to meet the learning needs of students with learning disorders" (id., see Parent Ex. J at p. 18; Dist. Ex. 4 at p. 8). As a result of the foregoing, the parents indicated that the assigned public school site could not meet the student's "significant academic and behavioral needs" and they would unilaterally place her at Dwight for the 2024-25 school year (Parent Ex. K at p. 2).
A. Due Process Complaint Notice
By due process complaint notice dated December 20, 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 pp. 1-2). To support this assertion, the parents alleged various procedural and substantive violations as a basis upon which to conclude that the district failed to offer the student a FAPE (id. at pp. 3-6). More specifically, and as relevant herein, the parents indicated that the CSE failed to conduct any evaluations of the student or "collect adequate and appropriate data" prior to making recommendations; the CSE was not properly composed because the special education teacher, the regular education teacher, and the district representative did not meet the required criteria; the CSE ignored the parents' concerns voiced at the meeting; the CSE failed to recommend an appropriate program for the student and ignored the recommendations of professionals with knowledge of the student's needs; the class size was too large for the student; the IEP lacked sufficient individual instruction or attention; and the CSE failed to provide the parents with sufficient information about how the student's program would be implemented (id. at pp. 3-5). With regard to the assigned public school site, the parents indicated that the classroom was too large (up to 34 students) and the student required a small class with opportunity for individual assistance (id. at p. 5).
As relief for the alleged violations, the parents sought an order directing the district to reimburse or fund the costs of the student's tuition and expenses at Dwight for the 2024-25 school year from September 3, 2024 through June 11, 2025 (see Parent Exs. A at p. 6; D ¶ 3; E).[17]
B. Impartial Hearing Officer Decision
On March 11, 2025, the parties proceeded to, and completed an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH) (see Tr. pp. 1-63).[18] In a decision dated March 27, 2025, the IHO found that the district offered the student a FAPE for the 2024-25 school year, and notwithstanding that conclusion, went on to determine in the alternative that the Dwight School was an appropriate unilateral placement and that equitable considerations weighed in favor of the parents' requested relief (see IHO Decision at pp. 4-9).
Before reaching the determination that the district offered the student a FAPE for the 2024-25 school year, the IHO reviewed and discussed the findings of fact (see IHO Decision at pp. 2-4). Here, the IHO examined the parent's testimony, and concluded that it was "not credible" because it was "internally inconsistent and inconsistent with the documents" in the hearing record, her testimony included "misstatements" and contradictions, and it was based on the parent's faulty memory (id. at p. 4). More specifically, the IHO noted that the parent's testimony was not credible with regard to "what happened at the CSE meeting, the circumstances of the receipt of the IEP, and the meeting with" the special education teacher at the assigned public school site (id.).
Next, the IHO turned to the burden of proof and applicable legal standards, and with that as a backdrop, the IHO reviewed and analyzed the parents' procedural allegations (see IHO Decision at pp. 4-5). First, with regard to the July 2024 CSE's composition, the IHO recited the legally required members, the individuals who comprised the July 2024 CSE, and then based on this information, the IHO concluded that the CSE was properly composed (id. at p. 5). Second, the IHO examined the parents' allegation that the present levels of performance in the July 2024 IEP were "insufficient" (id.). Here, the IHO drew information directly from the IEP describing the student's present levels of performance in writing and mathematics, and concluding that the student's "present levels of performance [we]re sufficiently identified" (id.). Third, the IHO noted that although the parents alleged they did not have an opportunity to visit the assigned public school site, the parents had "no right to visit a public school" (id.). The IHO further noted that the parents incorrectly alleged that they were "unable to obtain timely information about the public school," as the evidence reflected that the district sent the school location letter approximately three weeks prior to the start of the 2024-25 school year (id.). Moreover, the evidence revealed that the parents spoke with a special education teacher from the assigned public school site before the school year started (id.). Finally, the IHO found that the parents' complaints about the assigned public school site—notably, the "low proficiency and graduation rates," the student's schedule had not yet been developed, and concerns about the "new ELA curriculum"—were "not only speculative, but [we]re not a basis" upon which to conclude that the district failed to offer the student a FAPE (id. at p. 6).
Overall, the IHO indicated that the parents' alleged procedural violations were not sustained, but even if they had been, the IHO also indicated that she would not have found that the procedural violations resulted in "any loss of educational benefit to [the s]tudent or deprive[d] [the p]arent of a meaningful opportunity to participate in the process" (IHO Decision at p. 6).
Next, the IHO turned to the parents' alleged substantive violations (see IHO Decision at pp. 6-7). With respect to the parents' evaluative information claims—namely, that the July 2024 CSE did not conduct any evaluations of the student and the information relied upon to develop the IEP did not support the CSE's recommendations—the IHO initially noted that, although a CSE was required to "consider recent evaluative data" to develop an IEP, the IDEA did not require a CSE to "exhaustively describe the student's needs by incorporating into the IEP every detail of the evaluative information available to it" as long as the IEP accurately described the student's needs (id. at p. 6). According to the IHO, the student's "needs and deficits [we]re well documented" in the July 2024 IEP (id.).
The IHO indicated that the student's October 2021 academic reevaluation was "sufficient to rely upon" for the 2024-25 school year, and the IHO found it "ironic" that the parents were "relying upon the older (and stale)" August 2020 neuropsychological evaluation (IHO Decision at p. 6). Notably, the IHO commented that neither evaluation recommended any further or additional testing of the student and the evidence in the hearing record was devoid of any parental request for additional testing of the student (id.). In addition, the IHO indicated that, although the district's prior written notice was "poorly drafted" and did not "indicate what the CSE relied upon to make a decision," this was not, "in and of itself . . . a fatal flaw" (id.). According to the IHO, the July 2024 IEP "appear[ed] to rely on the [August] 2020 Neuropsychological report and the end of the 2023-24 school year Teacher report" from Stephen Gaynor, as both were "mentioned specifically in the IEP" (id.).
Next, the IHO examined the August 2020 neuropsychological evaluation report, which reflected that the student could '"be placed in a mainstream school that offer[ed] learning support, though the level of such support would likely not meet [Student's] needs in full and [Student] would need to receive added learning [or] tutoring support outside of school"' (IHO Decision at p. 6). The IHO found that the "ICT class" included two teachers, "one of whom [wa]s a special education teacher," and that the classroom could not have more than "40 [percent] or twelve (12) students" with IEPs, while the remainder of the students in the classroom were "general education students" (id.). In addition, the IHO noted that the July 2024 IEP included a recommendation for SETSS in a small group, and the recommended management needs covered "most, if not all of" the suggestions made by the psychologist in the August 2020 neuropsychological evaluation report (id.). The IHO also found that the July 2024 IEP included the testing recommendations made in the neuropsychological evaluation report as well, and one of the annual goals addressed the "suggestion that math problems be experiential" for the student (id.). Overall, the IHO concluded that the July 2024 IEP addressed the student's needs and included appropriate recommendations consistent with both the August 2020 neuropsychological evaluation and the October 2021 academic reevaluation, and the July 2024 CSE had "sufficient evaluative data to make its recommendations and that no further testing was needed to determine [the s]tudent's needs or deficits" (id.).
With respect to the parents' arguments that the class size and student-to-teacher ratio recommendations in the July 2024 IEP were insufficient to support the student's needs and deficits, the IHO found that while the psychologist had recommended a classroom with a "lower teacher-student ratio" so that the teachers could redirect the student, the recommended ICT services "would do just that" (IHO Decision at p. 6). In support of this determination, the IHO noted that the student's classroom would include two teachers, and then noted further that, even assuming for the sake of argument that the student's classroom might include "more than the typical [25] students," the student-to-teacher ratio in the student's classroom with two teachers would therefore be "much lower than a typical public-school class" (id. at pp. 6-7). The IHO also pointed out that the July 2024 IEP included a recommendation for three periods per week of SETSS that would provide the student with "opportunities for small group learning and [an] individualized focus on skills" (id. at p. 7). Also, the IHO indicated that the special education teacher in the student's classroom could redirect the student's attention back to task, "allowing for the one-on-one attention that [the psychologist] suggest[ed wa]s appropriate" (id.). The IHO found it "significant" that the student's "attention naturally waxed and waned during testing," and as indicated in the evaluation report, the psychologist "merely had to redirect [her] to continue testing" (id.). In addition, the IHO noted that the student's ADHD was the "inattentive type rather than the hyperactivity type," and "additional classmates would not be the cause of [her] inattentiveness" (id.). The IHO also noted that, according to the student's nonpublic school, she was "at grade level in reading and one grade behind in math" (id.).
Next, the IHO found that the district was not responsible to provide the parent with information concerning "how the program [wa]s to be implemented" (IHO Decision at p. 7). The IHO further found that regardless of whether information about "schedules, methodology" and other implementation information was available prior to the start of the school year was of "no legal significance" (id.). More specifically, the IHO indicated that there was "no claim that the program could not be implemented, just that information about how it would be implemented [wa]s lacking" (id.). As a final point, citing to Second Circuit precedent, the IHO noted that speculation about whether a district would not adhere to an IEP was not an appropriate basis for a unilateral placement (id.).
Based on the foregoing, the IHO concluded that the district sustained its burden to demonstrate that the July 2024 IEP offered the student a FAPE (see IHO Decision at p. 7).
Notwithstanding this determination, however, the IHO addressed the parties remaining disputes in the case, namely the appropriateness of the parents' unilateral placement of the student at Dwight and equitable considerations (see IHO Decision at pp. 7-9). The IHO concluded that Dwight was appropriate, as the evidence demonstrated that instruction was adapted to the student's needs, and the student was provided with individual assistance three times per week to support her needs and to ensure that the student had access to a "meaningful education" (id. at p. 8). To support the student, the IHO noted that Dwight provided "individualized instruction" and assisted with "homework, assignments, organization," and anything the student needed to "support her academic progress and executi[ve] functioning" (id.).
With regard to equitable considerations, the IHO found that the parents timely provided the district with a 10-day notice of unilateral placement; the district had not challenged equitable considerations; there was "no issue with the reasonableness of costs, including tuition"; and the parents had cooperated with the district and the CSE in developing the student's IEP for the 2024-25 school year (IHO Decision at p. 9). As a result, the IHO found that the equitable considerations weighed in favor of the parents' requested relief (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. Initially, the parents contend that the district failed to present sufficient evidence to sustain its burden of proof, and moreover, the evidence produced by the district failed to explain how the recommended special education program addressed the student's needs. Next, the parents complain that the IHO failed to review the entire hearing record prior to writing the decision, noting that the transcript of the proceeding was not available to the IHO when writing the decision. Relatedly, the parents assert that the IHO mistakenly indicated that an exhibit was not entered into the hearing record. The parents further assert that the IHO failed to properly analyze the "propriety of the class size offered" to the student, and ignored the recommendation in the student's evaluations. The parents argue that the IHO failed to properly analyze the "propriety of related services," as well as the "propriety" of the SETSS recommendation; the district's failure to conduct related services evaluations; and the special education teacher's qualifications, "familiarity with [the student]," and the "basis for her recommendations." In addition, the parents contend that the IHO erred by finding that they had no entitlement to visit the assigned public school site.
With regard to the July 2024 CSE composition, the parents argue that the IHO erred by finding it was properly constituted because Dwight's director attended the meeting. The parents further argue that the IHO erred by denying their claim regarding the sufficiency of the evaluative information available to the CSE and the district's failure to evaluate the student or to conduct a mandatory three-year reevaluation of the student absent a parental request to do so. Finally, the parents contend that the district failed to present sufficient evidence to support the "propriety of the class size offered" to the student and failed to present sufficient evidence to establish that the assigned public school site could implement the student's IEP.
In an answer, the district responds to the parents' allegations and generally argues to uphold the IHO's finding that the district offered the student a FAPE for the 2024-25 school year. As a cross-appeal, the district contends that the IHO erred by finding that equitable considerations weighed in favor of the parents' requested relief.[19]
In an answer to the district's cross-appeal, the parents respond to the district's allegations and generally argue to uphold the IHO's determination concerning equitable considerations.
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]).[20]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
A.Preliminary Matters
1.Burden of Proof
As noted, the parents assert that the IHO erred by finding that the district sustained its burden of proof to establish that the July 2024 IEP offered the student a FAPE because the district did not present any witnesses and proffered only four exhibits. The parents contend that the district's evidence must be consistent with procedures for developing an IEP, as set forth in State regulation.[21] In addition, the parents argue that the district was required to explain how the program recommended in the July 2024 IEP adequately addressed the student's needs, and absent such explanation, the district could not meet its burden of proof.
As a response, the district asserts that SROs have consistently held that documents, alone, are sufficient to sustain its burden of proof. In addition, the district characterizes the parents' claims about the inadequacy of the special education program recommendations in the July 2024 IEP as speculative and without an evidentiary basis. The district also asserts that the parents' belief that the student would not make progress in the recommended program was unfounded.
Under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer v. Weast, 546 U.S. 49, 59-62 [2005] [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]). However, under State law, the burden of proof has been placed on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85).
Pursuant to State and federal regulations, an IHO must provide all parties with an opportunity to present evidence and testimony, including the opportunity to confront and cross-examine witnesses (34 CFR 300.512[a][2]; 8 NYCRR 200.5[j][3][xii]). While an IHO is required to exclude evidence and may limit the testimony of witnesses that he or she "determines to be irrelevant, immaterial, unreliable or unduly repetitious" (8 NYCRR 200.5[j][3][xii][c]-[e]), it is also an IHO's responsibility to ensure that there is an adequate and complete hearing record (see 8 NYCRR 200.5[j][3][vii]). Further, State regulation provides that nothing shall impair or limit the IHO in his or her ability to ask questions of counsel or witnesses for the purpose of clarifying or completing the hearing record (8 NYCRR 200.5[j][3][vii]). Moreover, it was well within the IHO's discretion to attempt to control the hearing by excluding evidence or testimony that the IHO finds to be irrelevant, immaterial, or unduly repetitious and by limiting the witnesses who testify to avoid unduly repetitious testimony (see 8 NYCRR 200.5[j][3][xii][c]-[e]).
With regard to the parents' claim that the district failed to present testimonial evidence to support a finding that it offered the student a FAPE for the 2024-25 school year, a review of the IHO's decision reflects that the IHO identified the evidence presented by the district and found that the July 2024 CSE relied on the August 2020 neuropsychological evaluation of the student, as well as a 2023-24 teacher report from Stephen Gaynor, to develop the student's IEP because the IHO found that these documents were "mentioned specifically in the IEP" (IHO Decision at pp. 6-7). A review of the decision reflects further that the IHO, in turn, relied upon the same documents to reach the conclusion that the district offered the student a FAPE, and correctly stated the legal standard with respect to the burden of proof (id. at pp. 4-7). The IHO also determined that, pursuant to the Burlington/Carter standard, the district "met its burden to provide a FAPE" by submitting the "IEP, [prior written notice], [school location letter], and the [October] 2021 [academic reevaluation] report to further support their recommendations and findings" (id. at p. 7). Notably, the IHO determined that a "review of the same support[ed] how the CSE made its recommendation, how the IEP appropriately describe[d the s]tudent, and that the IEP [wa]s meaningfully calculated to confer educational benefit" (id.). As a final point, the IHO noted that the district "offered 'a cogent and responsive explanation for their decisions' in creating that IEP," and therefore, the IHO found that the district offered the student a FAPE (id.).
Thus, the available evidence in the hearing record proffered by the district led the IHO to find that the July 2024 IEP adequately addressed the student's needs and that there was no contrary evidence that would rebut that conclusion. This is especially true, here, because the parent provided the only other evidence about the July 2024 CSE's process in developing the IEP at the impartial hearing that could have rebutted the district's evidence, and the IHO found that the parent's testimony on this point, as well as others, was not credible (see IHO Decision at pp. 3-4).[22] Furthermore, the decision when read in its entirety reveals that the IHO made her decision based on an assessment of the relative strengths and weaknesses of the evidence presented by both the district and the parents (see generally IHO Decision).
In addition to the foregoing and consistent with the district's contention, SROs have indicated that districts may rely solely on documentary evidence to meet its burden of proof when presented with allegations that a special education program is not appropriate to meet a student's needs (see, e.g., Application of a Student with a Disability, Appeal No. 23-005; Application of a Student with a Disability, Appeal No. 22-024; Application of a Student with a Disability, Appeal No. 19-054). Indeed, the parents do not point to any relevant legal authority for the proposition that a district is obligated to produce a witness in order to sustain its burden of proof (see generally Req. for Rev.). Therefore, contrary to the parents' arguments, it was unnecessary for the district to call a witness to simply authenticate the information in the July 2024 IEP in order to establish that the July 2024 CSE meeting occurred and the July 2024 IEP was developed (see Req. for Rev. ¶ 21).[23] The IDEA is a both a procedure– and documentation–heavy statute and school districts are routinely required to engage in those documentation requirements.[24] Furthermore, the technical rules of evidence such as authentication of documents through a witness to not apply to administrative due process procedures under IDEA (Lillbask v. Sergi, 117 F. Supp. 2d 182, 192 [D. Conn. 2000] [explaining that "due process does not require formal rules of evidence and procedure"]), and while an IHO retains the discretion to inquire further if the reliability of documentation has been called into question, but the mere fact that parties have their own opinions regarding the relative strength of their opposing viewpoints is not sufficient by itself to invalidate the documentation call for by the statute. In this case IHO did not find the district's documentation of the process and the conclusions drawn therefrom to be unworthy of consideration. With regard to the parent's contention that the district failed to call witness, the regulations governing proceedings indicate that both parties have the right to call witnesses in a due process proceeding. As noted above, either of the parties to an impartial hearing has the right to compel attendance of witnesses (see 34 CFR 300.512[a][1]-[2]; 8 NYCRR 200.5[j][3][xii]), which means that either side may call witnesses that share either their own view point any may call witnesses from the opposing side if they feel such testimony may undermine the strength of the opposing party's case.[25] But the regulation regarding witnesses is permissive, not mandatory, with the only exception being that once a witness is called, the other side must have the opportunity to further question and confront the witness (8 NYCRR 200.5[j][3][xii]).
The July 2024 IEP was admitted into evidence and the document speaks for itself. Additionally, the totality of the evidence in the hearing record unequivocally demonstrated that the July 2024 CSE meeting was held and attended by the parent, wherein she was permitted to participate (see Dist. Ex. 1 at pp. 2-3, 19-20). The only remaining issue before the IHO—for which the district had the burden of proof—was whether or not the July 2024 IEP, as written, offered the student a FAPE for the 2024-25 school year. For these reasons, the district was not required to present a witness in order to sustain its burden of proof and thus, the parents' arguments must be dismissed.
Lastly, all of the evidence presented in the proceeding may be considered regarding the allegations and defenses raised by the parties. Thus, it is not a matter of the quantity of evidence or which party produced it, but rather the IHO's assessment of quality of the evidence in terms of the procedural and substantive requirements of the IDEA. Which party bore the burden of persuasion in the impartial hearing becomes relevant only if the case is one of those "very few" in which the evidence is equipoise (Schaffer, 546 U.S. at 58; Reyes v. New York City Dep't of Educ., 760 F.3d 211, 219 [2d Cir. 2014]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 225 n.3 [2d Cir. 2012]; T.B. v. Haverstraw-Stony Point Cent. Sch. Dist., 933 F. Supp. 2d 554, 565 n.6 [S.D.N.Y. 2013]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *5 [S.D.N.Y. Mar. 19, 2013]; see F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 4 [2d Cir. Jan. 8, 2014]).
2.IHO Decision
The parents also argue that the IHO's decision finding that the district offered a FAPE must be reversed because the decision contains several errors and fails to include citations to the hearing record, noting that the IHO did not have a copy of the impartial hearing transcript when drafting the decision.
The district disagrees, noting that the parents do not contest the IHO's findings that Dwight was an appropriate unilateral placement and that equitable considerations weighed in favor of their requested relief, which were also presumably analyzed by the IHO without the transcript.
Initially, and notwithstanding the assertion that the IHO's decision was "rife with factual errors" and "legal errors," the parents point to only one accurate example of an error: the IHO mistakenly indicated that parent exhibit K was not entered into the hearing record as evidence (see Req. for Rev. ¶¶ 22, 24; see also Tr. p. 9; Parent Ex. K). The district agrees that the IHO erred by making this statement in the decision (see Answer & Cr. App. ¶ 5). However, even though the parents accurately identify this as an error, the parents do not explain how the IHO's error constitutes reversible error or how such error affected the IHO's analysis of the issues in this matter (see Tr. p. 9; see generally Req. for Rev.). As for the additional errors purportedly identified by the parents—for example, the IHO's failure to properly analyze the size of the proposed classroom and the propriety of related services (SETSS) and whether the parents had a right to visit the assigned public school site—these allegations of error more properly relate to the IHO's FAPE analysis (see, e.g., Req. for Rev. ¶¶25-27).
With respect to the IHO drafting the decision without a written transcript of the proceeding held on March 11, 2025, the IHO acknowledged as much within the decision itself (see IHO Decision at p. 2, n.1). The district notes that the parents do not challenge or point to any specific error in the decision with respect to the IHO's recitation of the "history of the claim, . . . , the procedural history, the relevant neuropsychological evaluation, the IEP, the witnesses at the [impartial] hearing, and the general statements made by those witnesses" (Answer & Cr. App. ¶ 5 [internal citation omitted]). The district also points out that the parents do not argue that the IHO "misquoted any of their witness testimony" (id.). Therefore, while it may be better practice to draft the decision having the benefit of the written transcript for reference as a general practice, under the circumstances of this matter, I also note that this was relatively short transcription of the cross examination of two witness who provided direct testimony by affidavit and the IHO personally heard all of the testimony herself as it was being given. The IHO did not commit reversible error by drafting the decision prior to the completion of the written transcript. The parents' arguments for reversal on this basis must be rejected.
B.July 2024 CSE Process
1.CSE Composition
The parents argue that, although the IHO cited to the proper State regulation when examining their CSE composition claim, the IHO erred by finding that the July 2024 CSE was properly constituted because it included the director from Stephen Gaynor, as the hearing record was devoid of evidence that the director was a teacher or otherwise qualified as a teacher.
The district contends that evidence in the hearing record supports the IHO's conclusion, noting that the July 2024 CSE included a "related service provider [or] special education teacher, the [p]arent, a district representative, a school psychologist, and the [d]irector" of Stephen Gaynor (Answer & Cr. App. ¶ 9). According to the district, the parents do not assert that "any other participant was required in order for the parent[s] to be afforded a meaningful opportunity to participate at the meeting" (id.).
The IDEA requires a CSE to include the following members: the parents; one regular education teacher of the student (if the student was, or may be, participating in the regular education environment); one special education teacher of the student or, where appropriate, not less than one special education provider of the student; a district representative;[26] an individual capable of interpreting instructional implications of evaluation results; at the discretion of the parent or district, other persons having knowledge or special expertise regarding the student, "including related services personnel as appropriate"; and if appropriate, the student (20 U.S.C. § 1414[d][1][B]; see 34 CFR 300.321[a]; 8 NYCRR 200.3[a][1]).
Initially in the due process complaint notice, the parents alleged that the July 2024 CSE was not properly composed because the special education teacher, the regular education teacher, and the district representative did not satisfy the regulatory criteria in order to serve as members of the CSE (see Parent Ex. A at p. 3).[27] Here, a review of the IHO's decision reveals that it lacks any of the composition of the July 2024 CSE, other than reciting the proper legal authority and correctly identifying the individuals who attended the CSE meeting (see IHO Decision at p. 5). In finding that the July 2024 CSE was properly composed, the IHO found that the July 2024 CSE consisted of a district special education teacher or related service provider, a district representative who was a school psychologist, the parent, and the director of Stephen Gaynor (id.). The IHO did not grapple with questions regarding whether the district special education teacher was a teacher of the student; whether a regular education teacher was a required member of the CSE or was present at the meeting, and if so, whether the regular education teacher was a teacher of the student; and whether the district representative was qualified to supervise or provide special education or had knowledge about the general education curriculum and the district's resources (id.).
On appeal, the parents appear to limit their challenge to the composition of the July 2024 CSE to the issue of whether the IHO erred by failing to determine if the director from Stephen Gaynor satisfied the criteria of a required CSE member (see Req. for Rev. ¶ 28). Specifically, the parents contend that the hearing record was devoid of evidence establishing that the director was a teacher or was qualified as a teacher, but the parents do not indicate whether this argument refers to a special education or regular education teacher of the student. Similar to the IHO's decision on this issue, the district's response does not offer any relevant analysis to this question.
Assuming for the sake of argument that the parents' assertion refers to the absence of a regular education teacher, it has been determined that, although the purpose of an ICT setting is to co-teach disabled students alongside their nondisabled peers in the same classroom, some courts have held that a regular education teacher is not required on the IEP team at all when an ICT setting is being considered, and thus is not a procedural violation (Y.A. v. New York City Dep't of Educ., 2016 WL 5811843, at *18 [S.D.N.Y. Sept. 21, 2016]; S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *9 [S.D.N.Y. Nov. 9, 2011]). The debate on who can permissibly serve in the role of a regular education teacher during a CSE meeting in which a blended, co-taught class is considered—a class which often has special education teachers who commonly have a general education certification as well—is increasingly an endless circle, and it is less than certain that a regular education teacher is required at all. Candidly, I am hard pressed to find that a classroom with nondisabled students and students with IEPs blended together and co-taught is a special class setting rather than a general education setting. But that does not resolve who can serve in the role of a regular education teacher if one is required.
Upon review, the evidence in the hearing record supports the parents' contention that it is unknown whether the director of Stephen Gaynor who attended the July 2024 CSE meeting was a regular education teacher or met the regulatory requirements as such to participate in that role at the CSE meeting as a regular education (or as a special education teacher of the student) (see generally Tr. pp. 1-53; Parent Exs. A-M; Dist. Exs. 1-4). However, even if a regular education teacher was a required member of the July 2024 CSE, and even if the absence of such constituted a procedural violation, there is no reason to disturb the IHO's conclusion there is no evidence that the procedural violation impeded the student's right to a FAPE, significantly impeded their opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (see Req. for Rev. ¶28).[28] The parents' argument must be dismissed.
2.Sufficiency and Consideration of Evaluative Information
The parents argue that the district failed to evaluate the student both prior to, and after the completion of, the privately obtained October 2021 academic reevaluation of the student. Relatedly, the parents argue that, although the IHO found that they had not requested an evaluation of the student, this finding did not absolve the district of its obligation to reevaluate the student every three years. In addition, the parents contend that the July 2024 CSE did not rely on either the August 2020 neuropsychological evaluation or the October 2021 academic reevaluation to develop the student's IEP, and used "little if any evaluative data" to develop the IEP. Instead, the parents assert that the July 2024 CSE relied solely on a 2023-24 teacher report from Stephen Gaynor. The parents further assert that the district failed to evaluate the student in the area of related services to justify a recommendation for SETSS.
In response to the parents' claim that the July 2024 CSE lacked sufficient evaluative information to "assess the [s]tudent's deficits," the district notes that the July 2024 IEP identified the 2023-24 teacher report from Stephen Gaynor and a "'record review,'" cited to the diagnoses the student received as a result of the August 2020 neuropsychological evaluation, and referenced teacher reports about the student's functioning. The district further notes that the hearing record includes a copy of the student's October 2021 academic reevaluation. Overall, the district asserts that the July 2024 CSE had "enough information to make an appropriate recommendation," any alleged failure to conduct a psychoeducational evaluation of the student was not a "deciding factor in this case," and there was no indication that additional evaluative information was required.
Regulations require that a district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see S.F., 2011 WL 5419847, at *12; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services' needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).
As noted above, the parents raised the following as evaluative information claims in the due process complaint notice: a failure to evaluate the student, a failure to rely on sufficient evaluative information to develop the July 2024 IEP, and a failure to consider the parents' privately obtained evaluations and the program recommendations made therein (see Parent Ex. A at pp. 3-4). At the impartial hearing, the parents' attorney—in the opening and closing statements—focused arguments on whether the July 2024 CSE had sufficient evaluative information to develop the IEP and whether the district sustained its burden to establish what evaluative information it relied upon to develop the student's IEP (see Tr. pp. 10-11, 43-47). In the decision, the IHO found that the July 2024 CSE had sufficient evaluative information to develop the IEP—pointing to the October 2021 academic reevaluation and the 2023-24 teacher report—and that the CSE considered the parents' privately obtained evaluations, as well as the recommendations contained therein (see IHO Decision at pp. 2, 6).
With regard to the parents' contentions on appeal that the district failed to evaluate the student (ever) or failed to conduct a mandatory three-year reevaluation of the student, the IHO did not make any specific findings on these issues.[29] The hearing record provides little, if any, evidence to make a determination on these issues, but to the extent that the parent testified that they did not refer the student to the district for an eligibility determination until October 2021, there would be no reason for any district evaluations of the student to exist prior to late 2021 or early 2022, leading up to the March 2022 CSE meeting (see Parent Ex. L ¶ 10). It therefore logically follows that, if the district had evaluated the student in late 2021 or early 2022, then the district would have been obligated to conduct a mandatory three-year reevaluation of the student in late 2024 or early 2025—dates that both fall beyond the July 2024 CSE meeting held to develop the student's IEP for the 2024-25 school year (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]).[30]
Nevertheless, assuming for the sake of argument that, consistent with the parent's testimony the district never evaluated the student in any area of disability or need (even with respect to the leading up to the March 2022 CSE eligibility meeting) and failed to conduct a mandatory three-year reevaluation, the July 2024 CSE's alleged "failure to consider sufficient evaluative data constitutes a procedural, rather than substantive, violation of the IDEA" (S.S. v. Katonah Lewisboro Union Free Sch. Dist., 2026 WL 357638, at *14 [S.D.N.Y. Feb. 9, 2026]). A district's failure to "conduct additional evaluations would not violate the IDEA unless it 'significantly impede[d] the parents' opportunity to participate in the decision making process or cause[d] a deprivation of educational benefits'" (S.S., 2026 WL 357638, at *14; see 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]). Under the circumstances of this case and for the reasons detailed below, the district's failure to evaluate or reevaluate the student did not deprive the student of a FAPE.
Initially, it must be noted that, on appeal, the parents do not assert any denial of participation claims with regard to the July 2024 CSE and the development of the student's July 2024 IEP (see generally Req. for Rev.). As a result, any failure to evaluate the student, as a procedural violation, would only constitute a denial of a FAPE in this matter if the such violation deprived the student of educational benefits. Other than alleging that the July 2024 CSE failed to consider the privately obtained evaluations of the student and the recommendations therein, which will be discussed below, the parents argue that, because the district failed to evaluate the student in the area of related services, the district could not justify the recommendation for SETSS in the July 2024 IEP (id. ¶¶ 26, 32). Notably, the term SETSS is not defined in the State continuum of special education services (see NYCRR 200.6), and the manner in which those services are treated in a particular case is often in the eye of the beholder. As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district, and unless the parties and the IHO take the time to develop a record on the topic in each proceeding it becomes problematic (see Application of the Dep't of Educ., Appeal No. 20-125). For example, SETSS has been described in a prior proceeding as "a flexible hybrid service combining Consultant Teacher and Resource Room Service" that was instituted under a temporary innovative program waiver to support a student "in the general education classroom" (Application of a Student with a Disability, Appeal No. 16-056), and in another proceeding it was suggested that SETSS was more of an a la carte service completely disconnected from supporting the student in a general education classroom setting (Application of a Student with a Disability, Appeal No. 19-047).[31]
Here, SETSS has not been described, other than noting in the IEP that the student would receive group SETSS in a separate location as support for her core subjects and executive functioning (see Dist. Ex. 1 at p. 12). Relatedly, the July 2024 IEP includes annual goals for the SETSS provider to work on with the student, targeting skills in ELA, writing, and mathematics skills (id. at pp. 9-11). Based on this evidence, it appears that the July 2024 CSE recommended SETSS to support the student in the general education classroom; notably, the parents do not identify what evaluation was required in order for the CSE to recommend SETSS as a support or to otherwise justify the recommendation for SETSS, and the parents also do not identify how the failure to evaluate the student resulted in a deprivation of educational benefits because the CSE recommended SETSS without such evaluation (see Req. for Rev. ¶¶ 26, 32). Consequently, the evidence does not support a finding that the failure to evaluate the student, as a procedural violation, resulted in a failure to offer the student a FAPE for the 2024-25 school year.
Next, the parents argue that the district failed to sustain its burden to establish what evaluative information the July 2024 CSE relied upon to develop the student's IEP (see Req. for Rev. ¶¶ 11, 29, 36). The parents contend that, contrary to the IHO's finding that the CSE relied upon the October 2021 academic reevaluation and the 2023-24 teacher report, the evidence demonstrates that the CSE only relied upon the 2023-24 teacher report to develop the IEP. Tethered to these assertions, the parents contend that the special education program recommended in the July 2024 IEP was not supported by, and in fact, ignored, the recommendations in the student's privately obtained evaluations from August 2020 and October 2021 (see Req. for Rev. ¶¶ 4-5, 8-9, 25-26, 31). As a result, the parents assert that the July 2024 CSE's failure to rely on sufficient evaluative information, and the failure to consider the recommendations in the privately obtained evaluations, constituted a failure to offer the student a FAPE.
In response to these allegations, the district did not affirmatively identify or indicate whether the July 2024 CSE relied on either the August 2020 neuropsychological evaluation or the October 2021 academic reevaluation in the development of the student's IEP (see generally Answer & Cr. App.).
Generally speaking, in developing the recommendations for a student's IEP, a CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]). A CSE must consider independent educational evaluations whether obtained at public or private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]). However, consideration does not require substantive discussion, or that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight or adopt their recommendations (Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 753 [2d Cir. 2018], citing T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993]; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004] [noting that even if a district relies on a privately obtained evaluation to determine a student's levels of functional performance, it need not adopt wholesale the ultimate recommendations made by the private evaluator], aff'd, 142 Fed. App'x 9 [2d Cir. July 25, 2005]; see Michael P. v. Dep't of Educ., State of Hawaii, 656 F.3d 1057, 1066 n.9 [9th Cir. 2011]; K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 805-06 [8th Cir. 2011]; Evans v. Dist. No. 17, 841 F.2d 824, 830 [8th Cir. 1988]; James D. v. Bd. of Educ. of Aptakisic-Tripp Community Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 818 [N.D. Ill. 2009]).
Additionally, in the development of an IEP a CSE is not required to only use evaluative information from its own sources and is not precluded from relying on privately obtained evaluative information in lieu of conducting its own evaluation (M.H. v. New York City Dept. of Educ., 2011 WL 609880, at *9 [S.D.N.Y. Feb. 16, 2011]; Mackey v. Board of Educ., 373 F. Supp. 2d 292, 299 [S.D.N.Y. 2005]; Application of the Dep't of Educ., Appeal No. 10-025; Application of a Student with a Disability, Appeal No. 10-004; Application of a Child with a Disability, Appeal No. 02-098; Application of a Child with a Disability, Appeal No. 01-040; Application of a Child with a Disability, Appeal No. 96-87); Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-12; see also Application of a Child Suspected of Having a Disability, Appeal No. 98-80).
Moreover, a district may rely on information obtained from a student's private school personnel, including sufficiently comprehensive progress reports, in formulating a student's IEP (see C.M. v. New York City Department of Education, 2017 WL 607579, at *15-*17 [S.D.N.Y. Feb. 14, 2017]; D.B. v. New York City Dep't of Educ., 966 F. Supp. 2d 315, 329-31 [S.D.N.Y. 2013]; G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *23 [S.D.N.Y. Mar. 29, 2013]; S.F., 2011 WL 5419847, at *10).
Upon review, although the IHO found it was proper for the July 2024 CSE to rely on the student's October 2021 academic reevaluation to develop the IEP for the 2024-25 school year, the hearing record is devoid of evidence that the July 2024 CSE had the evaluation report or even relied on that evaluation to develop the July 2024 IEP (see generally Tr. pp. 1-53; Parent Exs. A-M; Dist. Exs. 1-4). Here, the August 2024 prior written notice offers little, if any, relevant information to assist in this analysis, and the July 2024 IEP listed only one source of evaluative information: an "End of Year Report" for the 2023-24 school year (i.e., the 2023-24 teacher report) (Dist. Ex. 1 at p. 1; see generally Dist. Ex. 2).[32] To be fair, the July 2024 IEP also notes "Record Review" parenthetically as evaluative information considered, but the hearing record does not explain this notation or what documents may have comprised the record review (Dist. Ex. 1 at p. 1; see generally Tr. pp. 1-53; Parent Exs. A-M; Dist. Exs. 2-4). Moreover, the district offers no clarification in its answer and cross-appeal about what documents the July 2024 CSE relied upon to develop the IEP or what the term "record review" referred to, other than noting that it was identified in the IEP (see Answer & Cr. App. ¶¶ 6-7, 10). Additionally, the hearing record does not include a copy of the "End of Year Report" identified in the July 2024 IEP, but instead, includes a copy of the August 2020 neuropsychological evaluation and the October 2021 academic reevaluation (see generally Tr. pp. 1-53; Parent Exs. A-M; Dist. Exs. 1-4).
However, even if the hearing record does not definitively establish if the July 2024 CSE relied on either of the privately obtained evaluations of the student to develop the IEP, aside from this assertion and the assertion that the July 2024 CSE did not have sufficient evaluative information, the parents' request for review identifies no other substantive deficiency in the July 2024 IEP or an educational benefit denied to the student as a result of the district's failure to rely on additional evaluative information (see generally Req. for Rev.). Moreover, the parents do not allege that the information reflected in the present levels of performance—which appear to have been gleaned from the 2023-24 teacher report—is inaccurate or fails to accurately describe the student's needs (id.). Additionally, the parents appear to agree that the July 2024 CSE had the 2023-24 teacher report available to develop the IEP, and more significantly (id. ¶ 36).
In addition, it is also unclear whether the parents provided the district with copies of these evaluations or whether the district may have used these evaluations previously to develop IEPs for the student. Notably, the July 2024 IEP reflects that the student had been diagnosed as having a "[s]pecific [l]earning [d]isorder in [m]athematics," a "[m]ild [p]resentation of [d]yslexia," and an "ADHD" (mild, inattentive type) "in 2020," but the IEP does not point to any evaluative information—whether an evaluation report; the parents, themselves; or a prior IEP—as the source of that information (Dist. Ex. 1 at p. 3). On the other hand, it was the district who offered the evaluation (as updated in 2021) into evidence suggesting that it was provided to the district at some point prior to the impartial hearing, and the parent's due process complaint alleged that the district had failed to heed the private psychologist's recommendation that the student required a "specialized school setting" (Parent Ex. 6), but that allegation would be baseless unless the parent had provided the private psychologist's recommendation to the CSE. Thus, I agree with the IHO that the district's prior written notice failed to include the appropriate description of what the CSE had before it, but that procedural violation did not, by itself, result in a denial of a FAPE.
Thus to the extent that the parents argue that the July 2024 CSE failed to consider the recommendations in the privately obtained evaluations and denied the student a FAPE, this argument turns on the extent to which the CSE's was required to adopt the recommendation for a small class for the student, which will be discussed below with regard to the substantive discussion of the proposed educational placement (see Req. for Rev. ¶¶ 25, 30-31).
C.July 2024 IEP
Before turning to the evidence regarding the student's needs, I note that the scope of the parent’s appeal is limited to those issues explicitly raised within the request for review. The IHO explicitly addressed and rejected the parents' claim that the present levels of performance in the IEP were insufficient (IHO Decision at p. 5). However, the parents only address the IHO's running their memorandum of law. As a general matter, it has long been held that a memorandum of law is not a substitute for a pleading (see 8 NYCRR 279.4, 279.6; see also T.C. v. William Floyd Union Free Sch. Dist., 774 F. Supp. 3d 583, 620 n.10 [E.D.N.Y. 2025]; Bd. of Educ. of Harrison Cent. Sch. Dist. v. C.S., 2024 WL 4252499, at *13 [S.D.N.Y. Sept. 20, 2024]; Davis v. Carranza, 2021 WL 964820, at *11 [S.D.N.Y. Mar. 15, 2021]; Application of a Student with a Disability, Appeal No. 19-021; Application of the Dep't of Educ., Appeal No. 12-131). Thus, any issues not raised in the request for review have been deemed abandoned, and any arguments included solely within the memorandum of law have not been properly raised and will not be considered herein. Accordingly, the parent’s challenge to the IHO's findings regarding student's present levels of performance was waived because it was not appealed in the request for review, and that issue will not be considered.[33]
As described previously, the parents sought a private evaluation of the student in August 2020 and October 2021 (Parent Ex. J; Dist. Ex. 4). Furthermore, review of the present levels of performance set forth the July 2024 IEP facilitates the discussion of the issue to be resolved, namely, whether the July 2024 CSE properly recommended a general education placement with ICT services and SETSS to address the student's needs for the 2024-25 school year.
1.Present Levels of Performance
The present levels of performance in the July 2024 IEP described the student's needs in the areas of reading, writing, and mathematics after completing eighth grade at Stephen Gaynor (see Dist. Ex. 1 at pp. 1-2). In reading, the July 2024 IEP reflects that the student was a "visual learner, [who] learned best when material was presented in multiple modalities where she was exposed to multiple text structures and resources" (id. at p. 1). It was noted that, to aid the student's comprehension, "novels were supplemented with thematically and historically related articles and videos" (id.). In addition, the CSE noted that the student "especially benefited from visualization strategies to support her understanding of text features"; and "[w]hen reading aloud, [the student] benefited from teacher cues to apply learned strategies instead of relying on guesswork and incorporating expression when appropriate" (id.). The IEP reflected that, "[t]hrough targeted fluency activities, [the student] enhanced her ability to group words into meaningful phrases, incorporate expression, and attend to punctuation" (id.). The student made "notable improvements in her fluency as evidenced by fewer miscues and more self-corrections" (id.). The student was "explicitly taught" comprehension skills and "regularly used a guide to annotate for specified details while listening to or reading the text" (id.). In addition, the student "effectively used teacher-provided resources to enhance her understanding of the text" (id.). The student's "inferencing skills improved, as she incorporated textual evidence to support her interpretations of the author's purpose and character motivations" (id.). At the time of the July 2024 CSE meeting, the CSE reported the student's instructional or functional level in reading as a ninth-grade level (id. at p. 18).
In the area of writing, the present levels of performance reflected that the student "shined in writing this year," and had "worked diligently" to become more independent "throughout the writing process" by "relying minimally on teacher support and guidance (Dist. Ex. 1 at pp. 1-2). At that time, the CSE indicated that the student used "rubrics to ensure her written work met assignment expectations and edited and revised accordingly" (id. at p. 2). According to the IEP, the student "always refined her work, often replacing vague language with more descriptive and specific synonyms" (id.). The student reportedly "worked to ensure her written work was sophisticated," and used teacher support to make sure her sentences communicated what she intended (id.). The student's "essays demonstrated her ability to apply new writing skills to her independent writing," and she "effectively identified reliable sources, extracted salient information and took notes that captured a main idea" (id.). In addition, the student "applied learned persuasive and compare/contrast writing strategies to craft two different essays," and her series of vignettes "highlighted her ability to use literary devices to paint a picture with her words" (id.).
Finally, in mathematics, the July 2024 CSE described the student as having "strong analytical thinking and creative problem-solving approaches [in] her continued work with [A]lgebra" as part of the present levels of performance (Dist. Ex. 1 at p. 2). According to the IEP, the student had studied the following Algebra topics: "applying the laws of exponents to evaluate expressions, solving and checking multi-step equations, inequalities, and systems of equations" (id.). To reinforce application of these topics, the student set up and solved word problems (id.). The CSE indicated that, as the "material increased in complexity," the student "continued to build on previous concepts"; in addition, the student "consistently demonstrated motivation for learning the content and welcomed any opportunity to tackle more challenging problems" (id.). Moving forward in mathematics, it was noted that the student needed to "continue to practice her basic fact fluency and negative number operations to improve her accuracy when solving more rigorous, multi-step algorithms" and that the use of a calculator helped the student "review her calculations on problems with larger numbers and an identify specific revisions" (id.). Additionally, the CSE noted that the student "often volunteer[ed] to share her solutions and ask[ed] clarifying questions" during class (id.). The CSE also described the student as being "more aware of what was difficult for her," which resulted in the student asking "more focused and goal oriented" questions and which "enhanced the quality and thoroughness of her work" (id.). The student "valued the opportunity to receive teacher feedback and utilized it to revise her work" (id.). "To support [the student's] application of learned steps and strategies for solving, [the student] benefitted from reminders to reference her notes (teacher supplied notes as well as notes [she] independently took) when approaching a problem and in reviewing her work" (id.). The student had shown "improvement in graphing inequality solutions with reminders from the teacher to read her solution out loud and ask her self whether her graph matched her solution set" (id.). According to the IEP, as the student "transition[ed] to high school, it w[ould] be important for her to more independently access her toolbox of strategies to ensure she submit[ted] work that thoroughly and accurately represent[ed] her understanding of math concepts" (id.). At the time of the July 2024 CSE meeting, the CSE reported the student's instructional or functional level in mathematics as an eighth-grade level (id. at p. 18).
At the July 2024 CSE meeting, the parent reported that the student had made "a lot of progress and [wa]s a more confident student," but she needed "support with executive functioning" (Dist. Ex. 1 at pp 2-3).
In the area of social development, the July 2024 CSE noted in the present levels of performance that the student had completed her final semester at Stephen Gaynor on a "solid foot, ready and eager to utilize the tools and strategies she ha[d] learned . . . at her new school next year" (Dist. Ex. 1 at p. 3). The IEP reflected that the student was "motivated and inquisitive," and her "energy, positive attitude and enthusiasm were palpable and appreciated in her advisory class, especially when discussing topics related to current events, geography and history" (id.). In addition, it was noted that the student "continued to set high standards for herself as a student and [she] maintained an effective organizational system" (id.). According to the IEP, the parent "reported no concerns with [the student's] social development" (id.).
Finally, in the area of physical development, the July 2024 CSE noted in the present levels of performance that the student was in "good health" and was "developing appropriately for her age" (Dist. Ex. 1 at p. 3). In addition, it was noted that the student had been diagnosed as having a specific learning disorder in mathematics, a "[m]ild [p]resentation of [d]yslexia," and an "ADHD-Inattentive type in 2020" (id.). According to the IEP, the parent "reported no concerns with [the student's] health and physical development" (id.).
2.Educational Placement—ICT Services and SETSS
On appeal, the parents contend that the July 2024 IEP failed to offer a FAPE for the 2024-25 school year because the CSE's recommendations for a general education placement with ICT services and SETSS ignored the recommendations in the student's privately obtained evaluations indicating that she required a smaller classroom with a lower student-to-teacher ratio and a specialized school setting designed to address the needs of students with learning disorders.
The district argues that, given the student's strengths and based on the evaluative information available to the July 2024 CSE, the educational placement recommended—that is, a general education setting with ICT services and SETSS—was appropriate and reasonably calculated to enable the student to make progress.
Initially and as noted previously, it is well settled that although a CSE must consider independent educational evaluations whether obtained at public or private expense, consideration does not require substantive discussion, or that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight or adopt their recommendations. A review of the August 2020 neuropsychological evaluation reveals that, based on the student's testing results, the psychologist advised the parents to "seek a new school placement" for the student for following school year—2021-22—for sixth grade (Parent Ex. J at p. 18). And although the psychologist then went on to describe what she considered to be appropriate placement options for the student for sixth grade, assuming the July 2024 CSE relied on the evaluation report, the July 2024 CSE was not required to adopt the placement recommendations made in the August 2020 neuropsychological evaluation report especially where, as here, the evidence in the hearing record demonstrates that the July 2024 CSE—tasked with developing an IEP for the student for the 2024-25 school year and ninth grade— had the most recent information about the student's needs in the 2023-24 teacher report, which indicated that the student was on or above grade level in reading and on or slightly below grade level in mathematics at the time of the CSE meeting.
Turning to the recommendations in the October 2021 academic reevaluation, the same psychologist—based on the student's then-current testing results—concluded that her sixth grade placement at Stephen Gaynor, a "specialized school setting specifically designed to meet the learning needs of students with learning disorders," was "well-supported" by the testing results (Dist. Ex. 4 at p. 8). Thus, based on these statements, it appears that the psychologist confirmed that, based on student's testing results in October 2021, the parents had selected an appropriate placement for the student for sixth grade (id. at pp. 8-9). But once again, assuming the July 2024 CSE had the evaluation report available, the CSE was not required to adopt any placement recommendations made by the psychologist, which appeared to only confirm the parents' choice of an educational placement for sixth grade. But that does not mean that the converse is true, that psychologist's view that Steven Gaynor was an appropriate setting meant that the student who was performing at or above grade level would be unlikely to make educational progress in an ICT setting in a public school.
In this instance, the evidence in the hearing record supports the CSE's ultimate decision—when weighing the student's needs in present levels of performance; her academic progress in reading, writing, and mathematics reflected in the IEP from the 2023-24 teacher report; the student's strengths; the student's past educational placements; the student's then-current instructional and functional levels in reading and mathematics; and the CSE's mandate with regard to the student's LRE—to recommend a general education setting with both ICT services and SETSS to address her needs, together with strategies to address her management needs, annual goals, and testing accommodations. The fact that the student had only attended nonpublic schools or a special school like Steven Gaynor with a lower student-to-teacher ratio, did not dictate that an IEP with ICT and SETSS services was an inappropriate programing option for the student.
State regulation defines ICT services as the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students and states that the maximum number of students with disabilities receiving ICT services in a class shall be determined in accordance with the students' individual needs as recommended on their IEPs, provided that the number of students with disabilities in such classes shall not exceed 12 students and that the school personnel assigned to each class shall minimally include a special education teacher and a general education teacher (8 NYCRR 200.6[g]).
Here, the IHO found that ICT services, which provided the student with access to two teachers, one of whom was a special education teacher, sufficiently lowered the student-to-teacher ratio in the classroom in the public school (see IHO Decision at pp. 6-7). The IHO also pointed out that the special education teacher in the classroom could redirect the student's attention back to a task, "allowing for the one-on-one attention" as suggested would be appropriate in the privately obtained evaluations (id. at p. 7).
With respect to the July 2024 CSE's recommendation for three periods per week of SETSS to support the student's core academic subjects and her executive functioning needs, the IHO found that SETSS provided the student with the "opportunity for small group learning and individualized focus on skills" (IHO Decision at p. 7).
At the impartial hearing, although the parent confirmed that she had attended the July 2024 CSE meeting, she testified that she did not remember "raising any concerns" about the student's progress or education at that time, and she did not remember "discussing the ICT classes" recommended for the student (Tr. p. 32). The parent testified that she remembered discussing SETSS at the July 2024 CSE meeting, but indicated that she was "overwhelmed by all the technical words that were used during the meeting" and that it was "very confusing" for her (Tr. p. 33). The parent also testified that, at the CSE meeting, the CSE discussed a general education placement for the student, and she testified that she "[m]ost probably . . . did not" say anything at the CSE meeting about the general education classroom (id.). When asked what she understood the student's needs to be at the time of the July 2024 CSE meeting, the parent explained that the student needed "small classrooms," "one-to-one attention[]," and "accommodations on a daily basis" (Tr. pp. 35-36). When discussing the size of the student's proposed classroom at the July 2024 CSE meeting, the parent recalled being told that the classroom could have "maybe 25" students, and based on information relayed to her from the assigned public school site, she was told the classroom would be "[a]t least 25" students (Tr. pp. 35-37). The parent confirmed that if she had been told that the student's classroom could include at least 25 students, she would have "put the exact number" in her affidavit submitted in lieu of her direct testimony (Tr. pp. 36-38).[34]
Thus, even if the IHO had not discounted the parent's testimony about the July 2024 CSE meeting as not credible, the parent's testimony about the meeting sheds little, if any, light on concerns the parents may have had about the CSE's placement recommendation for the 2024-25 school year because it appears that the parent did not express any concerns despite being told that the classroom could have 25 students.
Additionally, the July 2024 CSE included strategies to address the student's management needs, including additional time for processing to support her learning pace and comprehension; support with social cues, such as guidance and instruction, to help her interpret and respond to social cues in various settings; teacher check-ins to monitor the student's progress, provide feedback, and address any challenges or concerns; a structured writing approach to help the student plan, organize, and express her ideas cohesively in written assignments; scaffolding support to break down tasks into manageable steps and provide support necessary for the student to achieve academic success; and repetition for learning to reinforce key concepts, skills, and information to enhance the student's retention and understanding (see Dist. Ex. 1 at pp. 3-4).
The annual goals in the July 2024 IEP targeted the student's reading skills (i.e., reading fluency, reading rate), writing skills (i.e., evaluating and revising written work to enhance clarity and to reduce vague or wordy sections), and mathematics skills (i.e., reviewing and applying integer rules to negative numbers, solving multistep problems) (see Dist. Ex. 1 at pp. 6-8). In addition, the IEP included annual goals to be supported by SETSS for ELA skills of reading and writing, as well as in mathematics (id. at pp. 9-11).
Finally, testing accommodations recommended by the July 2024 CSE included extended time, separate location, on-task focusing prompts, breaks, revised test directions, the use of aids or assistive technology, preferential seating, and recording answers in any manner (see Dist. Ex. 1 at p. 14).
When reaching the decision to recommend a general education setting with ICT services and SETSS, the July 2024 IEP reflects that the CSE also considered, and rejected, a general education placement, related services only, and a 15:1 special class placement in a community school (see Dist. Ex. 1 at p. 19). According to the IEP, the CSE rejected these placement options because the general education and related services only options did not provide the student with sufficient support, and the 15:1 special class placement was deemed too restrictive and limiting of a placement option (id.).
Therefore, in light of the evidence in the hearing record, there is no basis to disturb the IHO's finding that the July 2024 IEP offered the student a FAPE for the 2024-25 school year and the parents' arguments must be dismissed.
D.Assigned Public School Site
On appeal, the parents contend that while the IDEA does not confer parents with the right to school site selection, they do have the right to obtain information about the assigned public school site. The parents argue that the district failed to sustain its burden on this issue because the district did not provide any witness or documentary evidence demonstrating that the recommended special education program could be implemented at the assigned public school site.
Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88). The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]). However, a district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]). The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP" (M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. 2015]). Such challenges must be "tethered" to actual mandates in the student's IEP (see Y.F., 659 Fed. App'x at 5). Additionally, the Second Circuit indicated that such challenges are only appropriate, if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244). In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP (see Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]). Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate (K.F., 2016 WL 3981370, at *13; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016]).
The evidence in the hearing record demonstrates that the parents had the opportunity to speak with a special education teacher from the assigned public school site with the support of an educational advocate on or about August 28, 2024 (see Parent Ex. K at p. 1). In a letter to the district, dated September 3, 2024, the parents expressed their concerns about the potential size of the recommended placement—having up to 34 students—the student's need for a small classroom, their inability to determine what subjects the student would miss when having SETSS, concerns about the proficiency and graduation rates, and concerns about a newly implemented ELA curriculum (id.). The parents' letter did not raise any concerns about the assigned public school site's ability to implement the special education program recommended in the July 2024 IEP, nor did the parents' letter indicate that they had asked questions about the ability to implement the student's IEP (see Parent Ex. K at pp. 1-2). Thus, the evidence demonstrates that although the parents did not physically visit the site, they spoke with a special education teacher who appeared to have provided them with information about the assigned public school site; as a result, this argument must be dismissed.
VIII. Conclusion
Having found that the evidence in the hearing record supports the IHO's determination that the district offered the student a FAPE in the LRE for the 2024-25 school year, the necessary inquiry is at an end and it is unnecessary to address the district's cross-appeal regarding equitable considerations (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Footnotes
[1] According to the evidence, during elementary school in the nonpublic school, "80 [percent] of instruction" was delivered in French, including core subjects such as mathematics, history, science and "French Language Arts" (Parent Ex. J at p. 3). It was also noted that the student had attended a "French-speaking preschool program" (id.).
[2] Use of the term "parent" in this decision refers solely to the student's mother.
[3] Despite the psychologist's description of the student's CTOPP-2 subtest results as grade equivalent scores, the student's scaled scores on the CTOPP-2 subtests all fell within the average range based on the information provided in the evaluation report (i.e., an average scaled score was equal to 10 plus or minus 3, or 7 to 13) (see Parent Ex. J at p. 26).
[4] As reflected in the August 2020 neuropsychological evaluation report, the student's standard scores in all areas of written expression fell between 87 and 100, which, according to the information provided in the evaluation report, fell within the average range (i.e., an average standard score was equal to 100 plus or minus 15, or 85 to 115) (see Parent Ex. J at pp. 26-27).
[5] To be clear, the psychologist did not indicate that the student met the criteria to receive a diagnosis of dyslexia or a specific learning disorder in reading (see Parent Ex. J at pp. 15-17).
[6] Evidence in the hearing record reflects that the student's nonpublic school operated in a "hybrid model of in-person and remote learning" during the 2020-21 school year, and the student attended school that year in a classroom with her sister (Dist. Ex. 1 at p. 2). The evidence also reflects that, during the 2020-21 school year, the parents hired a "homework helper," who worked with both students "daily after school" (id.). As reported by the parent, fifth grade was a "difficult year" for the student, as attending the same class as her sister proved "very challenging" and exacted an "emotional toll" on the student (id. at p. 3). In addition to the homework helper, the student continued to receive "in school learning support, though it was provided remotely and only once a week" (id.). The student did not, however, receive tutoring outside of school during fifth grade—which had been provided "in the past by a French speech/language pathologist"—"due to pandemic-related restrictions" (id.).
[7] Although the district entered the October 2021 evaluation of the student into the hearing record by referring to it as a neuropsychological evaluation—and the evaluation is often referred to as such in the hearing record and later by the IHO in the decision—for the purpose of clarity, the October 2021 evaluation of the student will be referred to as indicated on the evaluation report: the October 2021 academic reevaluation (see Dist. Ex. 4 at p. 1).
[8] The psychologist noted that while the student had been diagnosed as having an ADHD based on the previous evaluation, her parents had not "sought medical consultation and/or treatment for this disorder" for the student (Dist. Ex. 4 at pp. 1-2).
[9] As reflected in the October 2021 academic reevaluation report, the student's standard scores in all areas of written expression fell between 94 and 115, which, according to the information provided in the August 2020 neuropsychological evaluation report, fell within the average to above average range (i.e., an average standard score was equal to 100 plus or minus 15, or 85 to 115) (compare Dist. Ex. 4 at p. 11, with Parent Ex. J at pp. 26-27).
[10] As reflected in the October 2021 academic reevaluation report, the student's standard scores in all areas of mathematics fell between 71 and 84, which, according to the information provided in the August 2020 neuropsychological evaluation report, fell within the below average range (i.e., an average standard score was equal to 100 plus or minus 15, or 85 to 115) (compare Dist. Ex. 4 at p. 11, with Parent Ex. J at pp. 26-27). When assessed in August 2020, the student's standard scores in all areas of mathematics fell between 75 and 83, or below the average range (see Parent Ex. J at p. 27).
[11] According to the October 2021 academic reevaluation report, the psychologist reviewed the student's testing results and recommendations with the parent on October 28, 2021 (see Dist. Ex. 4 at p. 9).
[12] Testimony reflects that the parents "did not become aware of the [district's] responsibility to locate, identify and evaluate students with disabilities" until approximately one year after the student's August 2020 neuropsychological evaluation (i.e., the 2021-22 school year) (Parent Ex. L ¶¶ 9-10).
[13] The hearing record does not include any copies of the student's IEPs prior to the 2024-25 school year (see generally Tr. pp. 1-53; Parent Exs. A-M; Dist. Exs. 1-4).
[14] According to the parent's testimony, Stephen Gaynor did not "offer a high school program, so when the [district] did not offer [the student] a high school program that would meet her needs, [they] found Dwight" (Parent Ex. L ¶ 4).
[15] The student's eligibility for special education as a student with a learning disability is not in dispute (see 34 CFR 300.8[c][10]; 8 NYCRR 200.1[zz][6]).
[16] Dwight 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; see also Parent Ex. D ¶ 1).
[17] The parents also requested that "all funds awarded be paid" to their advocate's escrow account (Parent Ex. A at pp. 6-7).
[18] The IHO held a prehearing conference with both parties on January 21, 2025, and as a result, the IHO issued a prehearing summary and order, dated January 21, 2025 (see generally Pre-Hr'g Summary & Order).
[19] The district does not appeal or otherwise challenge the IHO's determination that the Dwight School was an appropriate unilateral placement for the student for the 2024-25 school year (see generally Answer & Cr. App.). Accordingly, this finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]). Similarly, the parents do not appeal the IHO's finding that the present levels of performance in the July 2024 IEP were sufficient, and accurately described and identified the student's needs (see generally Req. for Rev.). Accordingly, this finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z., 2013 WL 1314992, at *6-*7, *10).
[20] 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).
[21] In support of this assertion, the parents cite to 8 NYCRR 200.16(e)(3) and indicates that it applies to school-age students (see Req. for Rev. ¶ 21). However, that particular State regulation does not apply to the instant matter, as it pertains to the procedures for the development of IEPs for preschool students. Furthermore that regulation does not specify the procedures for how a evidentiary hearing is conducted.
[22] Generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076). On appeal, the parents do not mention or otherwise challenge the IHO's credibility determinations with regard to the parent's testimony; as such, the IHO's credibility determinations have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z., 2013 WL 1314992, at *6-*7, *10).
[23] To the extent that the hearing record does not include the 2023-24 teacher report relied upon by the July 2024 CSE to develop the student's IEP, the parents do not assert that the CSE improperly relied upon this document or that the information contained therein was inaccurate; to the contrary, the parents have not appealed the IHO's finding that the present levels of performance in the July 2024 IEP—based, in part, on the information from the 2023-24 teacher report—were sufficient and accurately described the student and her needs. If the parents had concerns therein, they were equally capable of submitting the document into the hearing record as evidence or seeking the production of the same.
[24] There are now over 40 pages of documentation for parents that describe the procedural safeguards alone ( "New York State Education Department Procedural Safeguards Notice," available athttps://www.nysed.gov/sites/ default/files/programs/special-education/procedural-safeguards-notice-english.pdf). As has been explained previously "'[A]adequate 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. Florida 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]).
[25] However, an impartial hearing is by no means a free-for-all. The rule is tempered by the fact than IHO retains the discretion and in fact has a duty to limit or exclude evidence that is irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).
[26] State regulation provides that the district representative shall serve as the chairperson of the committee (8 NYCRR 200.3[a][1][v]).
[27] Subsequently, in the parents' 10-day notice of unilateral placement, the parents expressed disappointment that, due to the timing of the CSE meeting in mid-July, none of the student's middle school teachers from Stephen Gaynor were "available to join the IEP review" and participate in the drafting of the IEP (Parent Ex. B at p. 1). The parents did not, however, include this as an allegation in the due process complaint notice as a basis upon which to conclude that the July 2024 CSE was not properly composed (compare Parent Ex. A at p. 3, with Parent Ex. B at p. 1).
[28] To be clear, the parents offer no further rationale or arguments in the memorandum of law with regard to the composition of the July 2024 CSE that were not already made in their request for review to clarify their assertions (compare Parent Mem. of Law at p. 14, with Req. for Rev. ¶ 28).
[29] The parents' assertion that the district failed to conduct a mandatory three-year reevaluation of the student was not specifically identified as an evaluative information claim in the due process complaint notice (see generally Parent Ex. A).
[30] To the extent that the parents assert that the district remained obligated to conduct a mandatory three-year reevaluation of the student absent a request for an evaluation, the parents are correct. However, putting aside the question of whether the district was required to reevaluate the student prior to the July 2024 CSE meeting, the hearing record is devoid of evidence that the parents requested an evaluation of the student or requested additional evaluations of the student prior to the July 2024 CSE meeting, which may have triggered the district's obligation to evaluate the student outside of its obligation to reevaluate the student at least once every three years.
[31] In contrast, related services have been defined under the IDEA, as well as under State and federal regulations (20 U.S.C. § 1401[26][A]; see 34 CFR 300.34[a]; 8 NYCRR 200.1[qq]).
[32] As reflected in the section of the August 2024 prior written notice used to describe "each evaluation procedure, assessment, record, or report used in the decision to propose or refuse the action" by the July 2024 CSE, the prior written notice reflected that the CSE had relied on "Documents To determine needs," dated July 15, 2024 (Dist. Ex. 2 at p. 2).
[33] Even if the IHO's determination had been challenged, the parent's do not actually argue in the memorandum of law that any of the present levels are about the student were wrong. The essence of the parent's challenge is a a different version of same procedural argument about the burden of proof and the reliability of the teacher reports from the prior private school selected by the parent, Steven Gaynor. But once again, this is a procedural argument without an allegation of a substantive defect in the present levels of performance.
[34] In her direct testimony, the parent stated that she was informed by the assigned public school site that the student's classroom could contain "upwards of 34 students" (Parent Ex. L ¶ 22).