STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-258
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances: The Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Irene Dimoh, Esq.
DECISION
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's tuition at the Strivright Auditory Oral School of New York (AOSNY) for the 2024-25 school year. The appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
According to a district final notice of recommendation, a Committee on Preschool Special Education (CPSE) convened on February 23, 2022, determined the student was eligible for special education services as a preschool student with a disability, and developed an IEP that recommended the student receive 12-month services consisting of a 12:1+2 special class with three 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual occupational therapy (OT), and two 30-minute sessions per week of individual physical therapy (PT) (Parent Ex. O at p. 1). The district approved the student's enrollment in AOSNY starting on September 1, 2022 (id. at p. 2).[1]
A final notice of recommendation dated February 2, 2023 reflects that a CPSE convened to review and develop an IEP for the student which recommended the student receive 12-month services consisting of a 12:1+2 special class with three 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual OT, two 30-minute sessions per week of individual PT, and two 30-minute sessions per week of group counseling (Parent Ex. N at p. 1). The CPSE noted that the student attended AOSNY (id.).
A CPSE convened on January 16, 2024, and developed an IEP for the student with an implementation date of January 16, 2024 to continue through July and August 2024 (Parent Ex. B at pp. 1, 3, 18). The CPSE recommended that the student receive 12-month services consisting of a 12:1+2 special class five days per week at an approved special education program with three 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual OT, and two 30-minute sessions per week of group counseling (id. at pp. 1, 17-18).[2] The CPSE recommended special transportation services in a minibus to an early childhood education program selected by the parent and "AOS" was listed in the additional information section of the January 2024 IEP as the childcare location selected by the parent (id. at pp. 1, 2, 20). A final notice of recommendation dated January 16, 2024, summarized the recommendations made by the January 2024 CPSE (see Parent Ex. M at p. 1).
The district conducted a classroom observation of the student at AOSNY on March 12, 2024 (Dist. Exs. 3 at p. 2; 4). The parent completed a preschool parent interview on March 13, 2024 (Dist. Exs. 3 at p. 2; 5).
A CSE convened on March 21, 2024 to address the student's transition to school-age programing, found the student eligible for special education services as a student with a speech or language impairment, and developed an IEP with a projected implementation date of September 5, 2024 (Dist. Ex. 2 at pp. 1, 26). The CSE recommended that the student be placed in a 12:1+1 special class for math, English language arts (ELA), social studies, and sciences with related services consisting of two 30-minute sessions per week of group counseling services, two 30-minute sessions per week of OT, and three 30-minute sessions per week of individual speech-language therapy (id. at p. 19). The CSE determined the student was not eligible for 12-month services and that the student did not need any special transportation accommodations or services (id. at pp. 20, 23). In a prior written notice dated March 22, 2024, the district summarized the recommendations made by the March 2024 CSE (see Dist. Ex. 3).[3]
On August 22, 2024, the parent emailed the district a ten-day notice informing the district of her rejection of the March 2024 IEP and the recommended assigned public school (see Parent Ex. C). In the letter, the parent indicated to the district that she had toured the assigned public school, including its classrooms and cafeteria, and spoke to the assigned public school's social worker and psychologist (Parent Exs. C at p. 4; T ¶ 9). On September 3, 2024, the parent signed a contract enrolling the student in AOSNY for the 2024-25 school year (see Parent Ex. D).[4]
A. Due Process Complaint Notice
In a due process complaint notice dated September 10, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A at p. 1). The parent asserted that the last agreed-upon program was the student's January 2024 CPSE IEP and requested pendency pursuant to the January 2024 IEP (id. at p. 2). The parent asserted that the March 2024 CSE's disability classification of the student as a student with a speech or language impairment was inappropriate because it did not fully address all of the student's delays and academic struggles (id.). The parent also expressed her concerns with the March 2024 CSE's recommendations of a 12:1+1 special class and the assigned public school (id. at pp. 2-3). Specifically, the parent had concerns with the size of the assigned public school's lunchroom and the potential grouping of the other students in the offered 12:1+1 special class (id. at p. 5). The parent further asserted that the district inappropriately removed summer services and special transportation from the student's program for the 2024-25 school year (id. at p. 6). Next, the parent asserted that AOSNY was an appropriate unilateral placement for the student (id.). The parent requested, among other relief, an award of direct tuition payment to AOSNY for the student's attendance at AOSNY for the 2024-25 school year and funding for special transportation costs (id. at p. 7).
The district filed a response to the due process complaint notice dated September 23, 2024 (see Due Process Response at p. 2).
On October 22, 2024, a district representative signed the parent's requested pendency program for a 12-month school year at AOSNY (Oct. 22, 2024 Pendency Program).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on December 17, 2024 and concluded on March 11, 2025, after three days of hearings (Tr. pp. 16-185).[5] In a decision dated March 24, 2025, the IHO found that the district sustained its burden of proving that it offered the student a FAPE for the 2024-25 school year (IHO Decision at p. 10). The IHO noted that "[t]here is a big difference between appropriate for a [p]reschool [s]tudent and appropriate for a [s]chool [a]ge [s]tudent, even if it is just a difference of one year in age" (id. at p. 9). The IHO credited the testimony of the CSE's district representative and social worker (CSE social worker), who testified that the March 2024 CSE's 12:1+1 special class recommendation was appropriate to meet the student's needs (id. at p. 8). Having found that the district offered the student a FAPE for the 2024-25 school year, the IHO denied the parent's request for funding of the student's tuition costs at AOSNY for the 2024-25 school year (id. at p. 11).
IV. Appeal for State-Level Review
The parent appeals, alleging that the district failed to meet its burden of proving that it offered the student a FAPE for the 2024-25 school year. The parent asserts that the district failed to respond to the parent's due process complaint notice.[6] The parent also argues that the district did not provide an explanation regarding why the March 2024 CSE changed the student's special education program and placement from the prior year's program and district placement at AOSNY. The parent alleges that the district's assigned public school was inappropriate because the parent learned during her visit of the assigned school that there was only one teacher in the classroom and the students in the classroom had significant variation in disabilities and performance levels. The parent also generally alleges that there were procedural and substantive violations that resulted in a denial of a FAPE for the 2024-25 school year and asserts that the March 2024 IEP "barely mentioned" the student's auditory processing delays.
In its answer, the district asserts that the IHO's findings that the district offered the student a FAPE for the 2024-25 school year should be affirmed.[7]
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[8]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
A. Scope of Review
The request for review in this proceeding largely recites selected facts from the hearing record, with almost no discussion of the IHO decision being challenged. Before addressing the merits, a determination must be made regarding which claims are properly before me on appeal. State regulations governing practice before the Office of State Review provide that a request for review "shall clearly specify the reasons for challenging the [IHO's] decision, identify the findings, conclusions, and orders to which exceptions are taken, or the failure or refusal to make a finding, and shall indicate what relief should be granted by the [SRO] to the petitioner" (8 NYCRR 279.4[a]). Additionally, a request for review must provide a "clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately, and identifying the precise rulings, failures to rule, or refusals to rule presented for review" (8 NYCRR 279.8[c][2] [emphasis added]). The regulation further states that "any issue not identified in a party's request for review, answer, or answer with cross-appeal shall be deemed abandoned and will not be addressed by a State Review Officer" (8 NYCRR 279.8[c][4]).
Generally, the failure to comply with the practice requirements of Part 279 of the State regulations may result in the rejection of the submitted documents or a determination excluding issues from the scope of review on appeal (8 NYCRR 279.8[a]; 279.13; see Davis v. Carranza, 2021 WL 964820, at *12 [S.D.N.Y. Mar. 15, 2021] [upholding an SRO's conclusions that several claims had been abandoned by the petitioner]; M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *23 [S.D.N.Y. Sept. 28, 2018] [upholding dismissal of allegations set forth in an appeal to an SRO for "failure to identify the precise rulings presented for review and [failure] to cite to the pertinent portions of the record on appeal, as required in order to raise an issue" for review on appeal]).
Among other claims, the parent alleged in her due process complaint notice that the district improperly classified the student, that the student needed a 12-month school year, and that the student required special transportation services to AOSNY (see Parent Ex. A). As the IHO did not address these issues in her decision, and the parent did not appeal the IHO's failure to do so, these claims are deemed abandoned and will not be further addressed in this decision (8 NYCRR 279.8[][4]).
However, the two enumerated issues in the parent's request for review do not address the IHO's decision, and merely restate the parent's preferred legal conclusions that the district failed to meet its burden under the Burlington/Carter standard and that there were "procedural and substantive" violations that establish that the district could not meet its burden. The parent's arguments set forth in her request for review are related to the adequacy of the district's recommended 12:1+1 special class placement and the assigned public school. The parent does not identify error with the IHO's precise rulings and instead continues to argue on appeal that the district did not meet its burden to prove it offered a FAPE because it failed to explain why it changed the student's placement recommendation when the student has severe auditory processing delays that warranted funding at AOSNY. In the request for review, the parent also broadly alleges that there were "procedural and substantive violations in the IEP [p]rocess."
State level review of an IHO's determination is not simply the relitigation of all prior arguments conceivably leveled against a party during an impartial hearing; on the contrary, it is an appellate administrative process in which the allegations must be brought forth by the party and clearly aimed at the findings in the IHO's decision (see 8 NYCRR 279.4[a]; 279.8[c][2]; cf. DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 [S.D.N.Y. 2009] [articulating a similar expectation for objections to a magistrate's report and recommendation]). Mere disagreement with the outcome reached by the IHO's is not sufficient to preserve an issue for appeal and, while I review the evidence in the hearing record in its entirety, my role does not include inferring potential arguments based on the parent's overbroad, conclusory allegations that do not specify how the IHO erred.
The parent's appeal does not meaningfully engage with the adverse rulings made by the IHO, instead, the parent' request for review is drafted as a do-over and using the request for review to relitigate her claims against the district. When presented with challenges against the district's actions instead of arguments related to the IHO's findings in the request for review it is not this SRO's role to research and construct the appealing party's arguments or guess what they may have intended (see, e.g., Gross v. Town of Cicero, 619 F.3d 697, 704 [7th Cir. 2010] [appellate review does not include researching and constructing the parties' arguments]; Fera v. Baldwin Borough, 2009 WL 3634098, at *3 [3rd Cir. Nov. 4, 2009] [a party on appeal should at least identify the factual issues in dispute]; Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 [10th Cir. 2005] [generalized assertion of error on appeal is not sufficient]; see generally Taylor v. American Chemistry Council, 576 F.3d 16, 32 n.16 [1st Cir. 2009]; L.I. v. Hawaii, 2011 WL 6002623, at *9 [D. Haw. Nov. 30, 2011]; Lance v. Adams, 2011 WL 1813061, at *2 [E.D. Cal. May 6, 2011] [the tribunal need not guess at the parties' intended claims]; Bill Salter Advertising, Inc. v. City of Brewton, 2007 WL 2409819, at *4 n.3 [S.D. Ala. Aug. 23, 2007]).
Although I decline, in the exercise of my discretion, to dismiss the appeal due solely to the parent's lack of compliance regarding the pleading requirements of Part 279, the issues to be addressed in this appeal must be limited to those regarding the appropriateness of the district's recommendation of a 12:1+1 special class and the assigned public school which are also the areas of concern identified in the due process complaint notice and the IHO squarely addressed. The parent generally argues there are substantive and procedural violations; however, this statement is too broad to meaningfully challenge any specific findings of the IHO (see Bd. of Educ. of Harrison Cent. Sch. Dist. v. C.S., 2024 WL 4252499, at *13 [S.D.N.Y. Sept. 20, 2024] [finding that "[m]erely asserting that the IHO" erred in finding that the district did not offer the student a FAPE "does not raise the precise rulings presented for review"]; W.R. v. Katonah Lewisboro Union Free Sch. Dist., 2022 WL 17539699, at *9 [S.D.N.Y. Dec. 7, 2022] [same]). However, the parent's counsel is cautioned that similar deficiencies may result in dismissal on the basis of non-compliance with the practice regulations.
B. 2024-25 School Year
1. 12:1+1 Special Class
As discussed above, rather than explain how the IHO erred either legally or factually when engaging with the evidence regarding a 12:1+1 class, the parent continues to allege on appeal that the district did not provide any explanation for the "massive shift from a 12:1[+]2 placement . . . at AOSNY, a highly specialized school that cater[ed] exclusively to students who [we]re deaf, hearing impaired or present[ed] with severe auditory processing delays" to that of the March 2024 CSE's recommendations (Req. for Rev. at p. 3). For the sake of thoroughness, I have reviewed the hearing record and find insufficient basis to overturn the IHO's decision regarding the parent's limited appeal of the appropriateness of the 12:1+2 special class recommendation.
In order to determine whether the March 2024 CSE's 12:1+1 special class recommendation was appropriate, a brief discussion of the student's needs at the time of that meeting is necessary. According to the March 2024 IEP present levels of performance, which are not in dispute on appeal, the student was five years old and presented with delays in cognitive, social/emotional, motor, auditory/listening, and language skills (Dist. Ex. 2 at p. 1). The IEP reflected teacher reports that the student followed classroom routines and rules with reminders; demonstrated skills such as matching same items, identifying and labeling colors and basic shapes, sorting by size, continuing patterns, counting by rote and with 1:1 correspondence, and sequencing picture cards; and labeling name, age, gender, and basic body parts (id.). In reading, the student had difficulty asking questions related to, narrating, and retelling events of a story; making predictions; and discriminating between rhyming words (id.). Although the student recited letters of the alphabet, he demonstrated difficulty with letter/sound correspondence, and identifying the initial sounds at the beginning of words (id. at pp. 1-2).
According to the March 2024 IEP, the student exhibited delays in both receptive and expressive language skills and speech intelligibility (Dist. Ex. 2 at p. 2). Receptively, the student answered some simple "wh" questions, followed simple one and two step directions, and identified objects by label (id.). Expressively, the student used simple noun and verb phrases and asked a variety of "wh" questions, but did not demonstrate use of "many syntactical structures" (id.). While the student's speech was characterized by sound substitutions and distortions considered to be age appropriate, the student showed little awareness of the distortions and his dysfluent speech (id.). Socially, the March 2024 IEP described the student as friendly, beginning to become interactive with peers, and familiar with social skills group routines (Dist. Ex. 2 at pp. 2-3). He was working on improving following directions, waiting to take his turn, following the rules, and sharing his toys (id. at p. 3). OT reports included in the IEP indicated that the student exhibited decreased fine motor, hand manipulation, scissor, and handwriting skills, and upper body weakness (id. at pp. 3-4).
The March 2024 CSE recommended a 12:1+1 special class placement for academic subjects and that the student attend extracurricular and other nonacademic activities with his mainstream peers when appropriate (Dist. Ex. 2 at pp. 19, 23). State regulation provides that "the maximum class size for special classes containing students whose management needs interfere with the instructional process, to the extent that an additional adult is needed within the classroom more to assist in the instruction of such students, shall not exceed 12 students, with one or supplementary school personnel assigned to each class during periods of instruction" (8 NYCRR 200.6[h][4][i]). Based on the information before it, the March 2024 CSE determined that the student required the support of a 12:1+1 special class in a community school to address his learning and academic needs (id. at p. 4). The CSE also determined the student required the related services of speech-language therapy to address his speech and language needs, counseling to address his social/emotional needs, and OT to address his fine motor, sensory processing, visual motor integration, and visual perceptual needs (id. at pp. 4-5). To address the student's management needs, the March 2024 IEP indicated the student benefited from small group instruction, multisensory approaches, scaffolding, repetition/review, visuals, manipulative, prompts, redirection, reminders, preferential seating, positive reinforcement, verbal praise, and encouragement (id. at p. 4).
According to the March 22, 2024 prior written notice, and reflected in the March 2024 IEP, the CSE considered a general education classroom and integrated co-teaching services; however, rejected those options as not supportive enough for the student (Dist. Exs. 2 at p. 26; 3 at p. 2). The CSE also considered a 12:1+1 special class in a specialized school but rejected that option as too restrictive at that time (Dist. Exs. 2 at p. 26; 3 at p. 2; 12 ¶ 14).
The CSE social worker testified that the recommended 12:1+1 special class was an appropriate placement as it offered the student access to district staff appropriately trained to work with similarly functioning peers, and together with the recommended related services, "was the most appropriate program for [the student] to progress towards his goals" (Dist. Ex. 12 ¶¶ 1, 9, 12). According to the CSE social worker, "a special class in a community school ha[d] a highly trained special education teacher" and the additional support of a paraprofessional (Tr. p. 45). She testified that special classes were "designed to provide support through scaffolding, through small group instruction, lots of repetition, lots of review, prompting, [and] redirecting," which provided "an extremely supportive environment" (id.). The CSE social worker further stated that the 12:1+1 special class and the related services provided highly trained, intensive support and intervention that would meet the student's needs (Tr. p. 50). Additionally, the CSE social worker testified that at the time of the CSE meeting, "based on what everybody shared, their input, the data that we had, we felt like the two adults in the room and the up to 12 students would absolutely be appropriate to address his needs" (Tr. p. 54).
Regarding the parent's preferred placement at AOSNY, the CSE social worker testified that information about the student's auditory processing and listening difficulties was shared in reports and discussed at the March 2024 meeting, including that the student had difficulty remaining focused, became distracted very easily, and had difficulty following multi-step directions (Tr. pp. 65, 73). Additionally, the CSE was aware that the student had difficulty listening to auditory stimuli, ignoring background noise, and following auditory directions (Tr. p. 73). The CSE social worker also recalled speaking with the student's classroom teacher and asking what he required to learn and succeed, to which the teacher reported the student needed a lot of repetition, review, prompting, redirecting and scaffolding (Tr. p. 73). According to the CSE social worker, those were the supports that the CSE also believed the student needed," which "could be provided" in a 12:1+1 special class (Tr. pp. 73-74).
Further, the March 2024 CSE, in addition to recommending supports to address the student's management needs as identified by the AOSNY teacher, also recommended annual goals that focused on need areas including those related to the student's auditory processing challenges (Dist. Ex. 2 at pp. 4, 6-17). Specific to the student's auditory/listening needs the CSE recommended an annual goal to develop the student's auditory/listening skills in order to listen to auditory stimuli, ignore background noise, and follow auditory directions with multiple critical elements; and an annual goal to improve the student's ability to maintain his attention, focus, complete the task at hand, follow routines and transition smoothly between activities and tasks (id. at pp. 7, 16).
Many of the parent's concerns hinge on the fact that the programing offered by the district was not the programing available through AOSNY, but "the appropriateness of a public school placement [shall not be] determined by comparison with a private school placement preferred by the parent" (see, M.B. v. Arlington Cent. Sch. Dist., 2002 WL 389151, at *9 [S.D.N.Y. Mar. 12, 2002]). Instead, the IHO was required to assess the programing in terms of whether it met the requirements of the IDEA. As described above, review of the evidence in the hearing record supports the IHO's finding that the district offered the student a FAPE. The March 2024 CSE recommendation for a 12:1+1 special class, in conjunction with the recommended supports to address the student's management needs, annual goals, and related services, was reasonably calculated to enable the student to receive educational benefits and support his needs, including those related to his auditory and listening needs and challenges.
2. Assigned Public School Site
The parent's remaining contentions set forth in her request for review concern whether the assigned public school site was appropriate. The parent argues that the district failed to establish that the student would have been properly grouped with the other students in the recommended 12:1+1 special class (Req. for Rev. at p. 5).
Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88). The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (id. at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B., 589 Fed. App'x at 576).[9] However, a district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]). The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP" (M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 5-6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. Mar. 16, 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. Dec. 30, 2015]). Such challenges must be "tethered" to actual mandates in the student's IEP (see Y.F., 659 Fed. App'x at 5). Additionally, the Second Circuit indicated that such challenges are only appropriate, if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244). In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP (see M.E. v. New York City Dep't of Educ., 2018 WL 582601, at *12 [S.D.N.Y. Jan. 26, 2018]; Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]). Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate (K.F. v. New York City Dep't of Educ., 2016 WL 3981370, at *13 [S.D.N.Y. Mar. 31, 2016]; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016]).
In this instance, the parent's objections to the district's recommended assigned school site are impermissibly speculative as there is no evidence in the hearing record that the assigned school site could not meet the student's needs and implement the March 2024 IEP (see e.g., N.M. v. New York City Dep't of Educ., 2016 WL 796857, at *8 [S.D.N.Y. Feb. 24, 2016] ["[A] claim based on what a school 'would not have' done—as opposed to a claim based on what the school could not do—is speculative and barred under R.E. and M.O."]). The parent testified that she visited the assigned public school and met with a school psychologist who advised that she could not share confidential information about the other students' delays (Parent Ex. T ¶ 9). Further, the parent was informed that there would be 12 students in the class with only one teacher (id.).[10] The parent was concerned that the student would eat in "a very large lunchroom" and that the other students in the classroom all seemed to be on different levels and working on various content (id.).
The parent's contentions are speculative, as "a parent's 'own testimony that [school] officials made comments to her indicating an inability to effectively serve [the student] do not come close to proving that the school was ‘factually incapable’ of implementing the IEP" (G.S., 2016 WL 5107039, at *15, J.D., 2015 WL 7288647, at *16, rev'd on other grounds J.D. v. New York City Dept. of Educ., 677 Fed. Appx. 709 [2d Cir. 2017]).
To the extent the parent argues that the student would not have been educated with a suitable or functional peer group, the information gleaned by the parent during her visit to the assigned school does not overcome the speculative nature of such a claim where the student never attended the proposed school placement. When a student has not yet attended the proposed classroom at issue, claims related to functional grouping tend to be speculative in nature (J.C., 643 Fed. App'x at 33 [finding that "grouping evidence is not the kind of non-speculative retrospective evidence that is permissible under M.O." where the school possessed the capacity to provide an appropriate grouping for the student, and plaintiffs' challenge is best understood as "[s]peculation that the school district [would] not [have] adequately adhere[d] to the IEP"], quoting R.E., 694 F.3d at 195; see M.O., 793 F.3d at 244-45). Various district courts have followed this precedent post M.O. (G.S., 2016 WL 5107039, at *15; L.C. v. New York City Dep't of Educ., 2016 WL 4690411, at *4 [S.D.N.Y. Sept. 6, 2016] ["Any speculation about which students [the student] would have been grouped with had he attended [the proposed placement] is just that—speculation. And speculation is not a sufficient basis for a prospective challenge to a proposed school placement"]).
In view of the foregoing, the parent cannot prevail on her claims regarding implementation of the March 2024 IEP at the assigned public school site. It is undisputed that the parent rejected the offered program and assigned public school site and instead chose to enroll the student in a nonpublic school of her choosing prior to the time the district became obligated to implement the March 2024 IEP (see Parent Exs. C; D). Accordingly, as the student never attended the assigned public school site pursuant to the March 2024 IEP, any conclusion that the district would not have implemented the student's IEP or the assigned public school site could not meet the student's needs would necessarily be based on impermissible speculation, and the district was not obligated to present retrospective evidence at the impartial hearing regarding the execution of the student's program or to refute the parent's claims (R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]; F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 9 [2d Cir. Jan. 8, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 87 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 187 & n.3]).
VII. Conclusion
I find insufficient basis to disturb the IHO's determination that the district met its burden of proving that the March 2024 IEP offered the student a FAPE for the 2024-25 school year. Accordingly, the necessary inquiry is at an end and there is no need to reach the issues of whether AOSNY was an appropriate unilateral placement or whether equitable considerations support an award of tuition funding (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).
THE APPEAL IS DISMISSED.
Dated: Albany, New York
June 30, 2026
Justyn P. Bates
STATE REVIEW OFFICER
Footnotes
[1] AOSNY is a State-approved preschool special education program.
[2] The January 2024 CPSE determined that the student "made significant improvement in his motor development and PT is no longer warranted at this time" (Parent Ex. B at p. 5).
[3] The March 22, 2024 prior written notice states that a "School Location Letter will be sent separately" but the hearing record does not contain a school location letter (Dist. Ex. 3 at p. 2). However, in the parent's ten-day notice, the parent asserts that she "received a public school placement for [the student]" and that she visited the school (Parent Ex. C at p. 4).
[4] The AOSNY contract was updated on December 1, 2024 (see Parent Ex. P).
[5] A prehearing conference was held on October 22, 2024 (Tr. pp. 1-7) and a status conference was held on November 19, 2024 (Tr. pp. 8-15).
[6] The parent submitted a due process complaint notice dated September 10, 2024 (see Parent Ex. A). The hearing record includes a district response to the parent's September 2024 due process compliant notice dated September 23, 2024 (see Due Process Response).
[7] The district titled its responsive pleading as a "Verified Answer and Cross Appeal"; however, the district's requested relief is that the IHO's decisions be affirmed, and review of the document shows that the district did not assert a cross-appeal or alleged that the IHO erred. Therefore, this decision will assess the district's responsive pleading as an Answer instead of an Answer and Cross-Appeal.
[8] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[9] The district is required to implement the IEP and parents are well within their rights to compel a non-compliant district to adhere to the terms of the written plan (20 U.S.C. §§ 1401[9][D]; 1414[d][2]; 34 CFR 300.17[d]; 300.323; 8 NYCRR 200.4[e]).
[10] A 12:1+1 special class is a classroom with one teacher and was not inconsistent with the proposed IEP.