STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-260
Application of a STUDENT WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Thivierge & Rothberg, PC, attorneys for petitioners, by Randi M. Rothberg, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Michael G. Kobbe, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) fund the costs of their son's tuition at the Yad Yisroel School (Yad Yisroel) for the 2024-25 school year. The district cross-appeals from that portion of the IHO's decision which alternatively determined the parents met their burden that the student's unilateral program at Yad Yisroel was appropriate for the 2024-25 school year. The appeal must be dismissed. The cross-appeal must be sustained in part.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail here.
Briefly, the student has received a diagnosis of autism spectrum disorder, attention deficit hyperactivity disorder (ADHD), microcephalia, and was born with a microdeletion on chromosome one (Dist. Ex. 1 at p. 1).[1] During the 2023-24 school year, the student was 11 years old and attended Yad Yisroel, described as "a private school for children with special needs," that used "principles of [a]pplied [b]ehavior [a]nalysis" (ABA) (id.). The student exhibited cognitive skills in the borderline range of functioning, and academic, language, motor, and executive functioning deficits (see id. at pp. 1-7).
A CSE convened on March 6, 2024, found the student eligible for special education services as a student with autism, and developed an IEP for the 2024-25 school year (see generally Dist. Ex. 1).[2] The March 2024 CSE recommended that the student attend a 12:1+1 special class for English language arts (ELA), math, social studies, and sciences in a district "Non-Specialized" school (id. at pp. 21, 26). The CSE also recommended that the student receive one 30-minute session per week of individual counseling services; one 30-minute session per week of group counseling services; four 30-minute sessions per week of individual occupational therapy (OT); two 30-minute sessions per week of individual physical therapy (PT); three 30-minute sessions per week of individual speech-language therapy; and one 30-minute session per week of group speech-language therapy (id. at pp. 21-22). The CSE also recommended the student receive daily, full-time, individual paraprofessional services for behavior support, and that the parents receive four 60-minute sessions per year of parent counseling and training (id. at p. 22).
On April 12, 2024, the parents signed an enrollment contract for the student to attend Yad Yisroel during the 2024-25 school year (see Parent Ex. S).[3]
In a prior written notice to the parents and a school location letter, both dated July 31, 2024, the district summarized the recommendations of the March 2024 CSE and notified the parents of the assigned public school that would implement the student's March 2024 IEP for the 2024-25 school year (Dist. Exs. 5; 6).
In a letter dated August 14, 2024, the parents notified the district that they had received the March 2024 IEP and school location letter for the 2024-25 school year (Parent Ex. C). The parents indicated that they had "initial concerns" with the recommendations contained in the March 2024 IEP, but were interested in considering the district's program at the assigned public school (id.). The parents noted that they had attempted to contact the assigned school but had not heard back (id.). Therefore, the parents notified the district of their intent to unilaterally place the student at Yad Yisroel for the 2024-25 school year and stated that they reserved the right to seek reimbursement/funding of the costs of the student's program from the district (id.).
A. Due Process Complaint Notice
In a due process complaint notice dated September 5, 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). The parents alleged, among other things, that the March 2024 CSE: failed to sufficiently evaluate the student; failed to meaningfully consider the requests and recommendations from them and Yad Yisroel professionals; failed to address the student's anxiety; failed to perform a functional behavioral assessment (FBA) of the student and develop a behavioral intervention plan (BIP); failed to recommend sufficient behavior supports, services and interventions; failed to recommend sufficient, measurable and appropriate annual goals; failed to recommend 1:1 instruction or ABA instruction; failed to recommend sufficient transition services and supports; failed to recommend sufficient supports, services and accommodations for the student; failed to recommend sufficient supports for school personnel; failed to recommend parent counseling and training; and predetermined the student's program (id.). The parents also alleged that the recommend 12:1+1 special class was too large for the student and that the assigned school could not implement all of the supports recommended to address the student's management needs (id. at pp. 3-4). The parents also indicated that they were interested in considering the program at the assigned school but were not able to discuss the program or tour the school (id. at p. 4). The parents alleged that the student's program at Yad Yisroel was appropriate to meet his needs and that no equitable considerations would preclude or diminish any award (id. at pp. 2, 5). As relief, the parents requested funding for the student's program at Yad Yisroel for the 2024-25 school year (id. at p. 5).[4]
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on October 17, 2024 and concluded on February 11, 2025, after two days of proceedings including a prehearing conference (Tr. pp. 1-60).
In a decision dated March 31, 2025, the IHO determined that the district offered the student a FAPE for the 2024-25 school year, and, in the alternative, that Yad Yisroel was an appropriate unilateral placement and that equitable considerations weighed in favor of the parents' request for an award of tuition reimbursement (IHO Decision at pp. 3-8). Accordingly, the IHO denied the parents' requested relief and dismissed their due process complaint with prejudice (id. at p. 8).
IV. Appeal for State-Level Review
The parties' familiarity with the particular issues for review on appeal in the parents' request for review, the district's answer with cross-appeal, and the parents' answer thereto is also presumed and, therefore, the allegations and arguments will not be recited here. The following issues presented on appeal must be resolved to render a decision in this case:
- Whether the IHO erred by failing to consider whether the March 2024 CSE engaged in impermissible predetermination;
- Whether the IHO erred in determining that the student did not require an FBA and/or BIP to address the student's behavioral needs;
- Whether the IHO erred in determining that the evaluations and reports of the student before the March 2024 CSE were sufficient to develop an appropriate IEP;
- Whether the IHO erred in determining that the 12:1+1 special class in a community school recommended in the March 2024 IEP was appropriate to address the student's needs;
- Whether the IHO erred in determining the student did not require 1:1 instruction or ABA instruction to be offered a FAPE;
- Whether the IHO erred by failing to consider whether the assigned public school was an appropriate placement for the student, and whether the district's failure to provide the parents with sufficient information regarding the placement, denied the student a FAPE; and
- Whether the IHO erred in determining that Yad Yisroel was appropriate to address the student's needs.
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]).[5]
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. Typographical Error and IHO's Decision
A review of the allegations in the parents' appeal, together with the district's answer and cross-appeal, reveals that the parties generally agree that the IHO's decision contained an error regarding whether the district offered the student a FAPE during the 2024-25 school year (see Req. for Rev. at p. 4 n. 2; Answer & Cr.-App. ¶¶ 7, 24). Both parties indicate that the IHO wrote in the conclusion section of her decision that the district failed to provide the student a FAPE for the 2024-25 school year, which is in direct contradiction to her earlier finding that the district provided the student a FAPE for the 2024-25 school year (see IHO Decision at pp. 6, 8). Specifically, in her analysis, the IHO stated:
I find that using the evaluative data and IEP team expertise the [district] developed an appropriate IEP and selected an appropriate public school placement with the support the Student requires in the least restrictive environment. Considering the record as a whole I find that the [district] provided this Student with a FAPE for the 2024-2025 school year.
(id. at p. 6). Then, under the conclusion section of the IHO's decision, the IHO stated:
Based on my review of the record, I find that [the district] failed to provide the Student with a FAPE for the school year; and as a result, the Parent is entitled to appropriate relief.
I have reviewed the Parties' remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent's remaining claims not discussed herein are dismissed with prejudice.
(id. at p. 8).
Based on the IHO's decision as a whole, it appears that the IHO's statement in the conclusion section was in error.
The parents further argue that the IHO's decision contained factual errors that were inconsistent with mandates set forth in State regulations. State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall set forth the reasons and the factual basis for the determination" and "shall reference the hearing record to support the findings of fact" (8 NYCRR 200.5[j][5][v]). State regulations further require that an IHO "possess knowledge of, and the ability to conduct hearings in accordance with appropriate legal practice and to render and write decisions in accordance with appropriate standard legal practice (8 NYCRR 200.1[x][4][v]).
The parents argue that the IHO failed to address the sufficiency of the district's evidence and the conclusory nature of the district's witness's testimony, and she failed to properly weigh and balance both parties' evidence. (see Parent Memo. of Law at p. 6).
Contrary to the parents' contention, the IHO's decision—consistent with State regulation—included citations to the evidence in the hearing record in support of her findings of fact, as well as citations to applicable law (see generally IHO Decision; see also 8 NYCRR 200.1[x][4][v]). In addition, the IHO weighed testimony from both parent and district witnesses (see generally IHO Decision). Moreover, in any event, an SRO is tasked with conducting an impartial review of the issues presented on appeal and rendering a decision based on an independent review of the entire hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 329-30 [E.D.N.Y. 2012]). Accordingly, I now turn to consider whether the evidence in the hearing record supports the IHO's particular findings.
B. CSE Process
1. Predetermination
The parents argue that the IHO failed to consider whether the district predetermined the student's recommended program in his March 2024 IEP.
As to predetermination, the consideration of possible recommendations for a student prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting (T.P., 554 F.3d at 253; A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8-*9 [S.D.N.Y. July 30, 2015]; see 34 CFR 300.501[b][1], [3]; 8 NYCRR 200.5[d][1], [2]). The key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP" (T.P., 554 F.3d at 253; see D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-*11 [E.D.N.Y. Sept. 2, 2022]; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [E.D.N.Y. 2009], aff'd, 366 Fed. App'x 239 [2d Cir. Feb. 18, 2010]). Districts may "'prepare reports and come with pre[-]formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions'" (DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18 [S.D.N.Y. Jan. 2, 2013] [alternation in the original], quoting M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 506; [S.D.N.Y. 2008]; see B.K. v. New York City Dep't of Educ., 12 F. Supp. 3d 343, 358-59 [E.D.N.Y. 2014] [holding that "active and meaningful" parent participation undermines a claim of predetermination]).
Here, the hearing record shows that the parent and staff from Yad Yisroel were members of the March 2024 CSE and actively participated in the development of the student's March 2024 IEP for the 2024-25 school year (see Dist. Ex. 1). Specifically, the district school psychologist testified that she served as the school psychologist and district representative at the March 2024 CSE meeting and the CSE also was composed of a district special education teacher, the parent, the curriculum supervisor from Yad Yisroel, and the student's classroom teacher from Yad Yisroel (Dist. Ex. 7 ¶¶ 1, 5; see Dist. Ex. 1 at p. 29).
According to the March 2024 IEP and prior written notice, the CSE considered other placement options for the student, such as a 12:1+1 special class or a 6:1+1 special class in a specialized school, which were rejected as the CSE opined that the student should be given the opportunity to be educated in the least restrictive setting and that, with the continued support of a 1:1 behavior management paraprofessional, it was believed that the student would be able to participate and make progress in a class that would give him access to the standard curriculum with modifications (Dist. Exs. 1 at pp. 28-29; 5 at p. 3; see Dist. Ex. 7 ¶ 9). Similarly, the prior written notice indicated that the March 2024 CSE believed that a 12:1+1 special class, with the support of a 1:1 behavior paraprofessional and the related services of speech-language therapy, OT, PT, and counseling, the student would be able to fully access the general education curriculum with modification and support, and that the student should be given exposure to the general education curriculum in the least restrictive setting, which was a 12:1+1 special class in a community school with related services (Dist. Ex. 5 at p. 3; see Dist. Ex. 7 ¶ 9).
In arguing that the CSE's recommendation for a 12:1+1 special class was predetermined, the parents point to the district school psychologist's testimony that a 12:1+1 special class was the smallest class ratio available in a district community school setting (Tr. p. 33). Rather than supporting the parents' position, the school psychologist's testimony reflects that the CSE took into account and considered a variety of factors specific to the student, including the level of access to nondisabled peers and the general education curriculum whether the additional support of a paraprofessional would allow the student to receive educational benefit in a classroom with 12 students (Tr. p. 33; Dist. Ex. 7 ¶ 7). This degree of consideration defeats the parents' claim that the recommendation was predetermined.
Further, the parents do not allege that they or the staff from Yad Yisroel were prevented from sharing their objections to the CSE's recommendations. Rather, the Yad Yisroel educational director (director),[6] testified that she and the student's teacher from Yad Yisroel expressed to the committee their view that the 12:1+1 special class would not be sufficiently supportive for the student (Parent Ex. V ¶ 41). That the CSE was ultimately "unconvinced" that the student could not benefit from a 12:1+1 special class, "does not mean that the District engaged in predetermination" (G.S. v. Pleasantville Union Free Sch. Dist., 2020 WL 4586895, at *13 [S.D.N.Y. Aug. 10, 2020]).
Based on the foregoing evidence, the parents' arguments that the March 2024 IEP was predetermined is not supported by the hearing record.
2. Sufficiency of Evaluative Information
The parents argue on appeal that the IHO ignored and/or glossed over evidence concerning the district's failure to substantiate the sufficiency of its evaluative material and that the district failed to evaluate the student appropriately in all areas of suspected disability, including related service evaluations, social/emotional testing, and/or behavioral testing.
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 [S.D.N.Y. Nov. 9, 2011]; 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).
The evaluative information about the student available to the March 2024 CSE included: an initial educational report from Yad Yisroel dated November 13, 2023; a district psychoeducational evaluation dated February 18, 2024; progress reports provided by Yad Yisroel; and information relayed during discussions during the CSE meeting (see Tr. p. 32; Dist. Exs. 1 at pp. 1-7; 2 at pp. 1-4; 3 at pp. 1-6; 7 ¶ 6).[7] The school psychologist testified that she reviewed the February 2024 district psychoeducational evaluation and progress reports provided by Yad Yisroel (see Tr. p. 32; Dist. Ex. 7 ¶ 6). She also testified that, during the CSE meeting, she heard input from the student's classroom teacher, the curriculum coordinator at Yad Yisroel, and the district special education teacher (Tr. p. 29).
The February 2024 psychoeducational evaluation report reflected results of the administration of the Wechsler Abbreviated Scale of Intelligence - Second Edition (WASI-II) and the Wechsler Individual Achievement Test - Fourth Edition (WIAT-4) to the student, a student interview, and behavioral observations during the evaluation (see Dist. Ex. 2). Administration of the WASI-II yielded a verbal comprehension composite score of 76 (borderline), a perceptual reasoning composite score of 71 (borderline), and an abbreviated full-scale IQ of 71 (borderline) (Dist. Exs. 1 at p. 1; 2 at pp. 1-4). On the WIAT-4, the student's academic functioning fell within the very low range across all areas of reading, math, and spelling (Dist. Ex. 2 at pp. 3-4).[8]
With regard to reading, at the March 2024 CSE meeting the student's classroom teacher reported that the student read at a "Level N on Fountas and Pinnell" (Dist. Ex. 1 at p. 1). The March 2024 IEP indicated that the student "ha[d] knowledge of the six types of syllables," and "gained greater fluency in decoding 2 and 3 syllable words and . . . divide[d] words based on the vcv, vv, and vccv rules" (Dist. Exs. 1 at p. 4; 3 at p. 2). It was also reported that the student "decode[d] compound words and words with contractions and special endings such as -tion, - ous, cial, - ious, and -le" (Dist. Exs. 1 at p. 4; 3 at p. 2). The March 2024 IEP indicated that the student needed continuous instruction on letter/sound knowledge, phonemic awareness, word recognition, word analysis strategies such as prefixes, suffixes, compound words, and visual memory for words (Dist. Exs. 1 at p. 3; 2 at p. 3).
Regarding reading comprehension, the evaluative data contained in the March 2024 IEP reflected that the student summarized a story using a graphic organizer, answered "WH" questions, and made predictions prior to reading (Dist. Exs. 1 at p. 4; 3 at p. 2). The March 2024 IEP stated that the student displayed difficulty recognizing character dialogue and different roles characters play within the story (Dist. Exs. 1 at p. 5; 3 at p. 4). Additionally, it was reported that the student displayed difficulty comprehending the story due to his lack of perspective taking skills and difficulty identifying the main idea and summarizing the story in a concise manner (Dist. Exs. 1 at p. 5; 3 at p. 4). The March 2024 IEP indicated that the student would "benefit from explicit instruction in reading comprehension techniques including paraphrasing and using context clues" and "require[d] additional time when completing reading assignments" (Dist. Exs. 1 at p. 2; 2 at p. 3). The CSE also noted that the student could benefit from: using graphic organizers, using a highlighter, paraphrasing, and note-taking guides (Dist. Exs. 1 at p. 2; 2 at p. 3).
Regarding writing skills, the March 2024 IEP indicated that the student spelled "cvc, cvce, and words with blends and vowel team that follow a specific rule" (Dist. Exs. 1 at p. 4; 3 at p. 2). On the WIAT-4 spelling subtest, the student made spelling errors in the middle and final positions of words (Dist. Exs. 1 at p. 3; 2 at p. 3). The March 2024 IEP also indicated that the student brainstormed related ideas using a graphic organizer and wrote basic sentences, although with some struggle to articulate his thoughts in a clear and concise manner and without adult support (Dist. Exs. 1 at p. 4; 3 at p. 4). The March 2024 IEP indicated that the student would benefit from being taught high frequency words, ongoing spelling instruction, and opportunities for independent reading in and outside of school (Dist. Exs. 1 at p. 3; 2 at p. 3).
In math the student reportedly added and subtracted single digit numbers correctly but was inconsistent with multi-digit numbers due to errors with borrowing and carrying over numbers (Dist. Exs. 1 at pp. 2, 4; 2 at p. 3; 3 at p. 2). The March 2024 IEP indicated that the student identified place value and "decompose[d] three-digit numbers (Dist. Exs. 1 at p. 4; 3 at p. 2). According to the IEP, the student "understood[] the foundational skills of multiplication and c[ould] state the multiplication fact for tables 1 through 7, 10, and 11" as well as skip count by 2s, 3s, 5s, and 10s (Dist. Exs. 1 at p. 4; 3 at p. 2). The March 2024 IEP indicated that the student "benefit[ed] from flashcards with problem solving strategies, models, and flow charts explaining process steps," and "also need[ed] repetitive practice, use of fraction strips, models, manipulatives and concrete representations" (Dist. Exs. 1 at p. 2; 2 at p. 3).
The March 2024 IEP reflected reports that the student solved problems involving reading a graph, determining a number pattern, determining place value, and reading a clock (Dist. Exs. 1 at p. 2; 2 at p. 3). The March 2024 IEP indicated that the student could tell time using an analog clock and added and subtracted time on the hour, half hour, and quarter hour (Dist. Exs. 1 at p. 4; 3 at p. 2). Regarding money, the student calculated the change needed and set up an appropriate equation to solve; however, it was also reported that the student could not determine the value of coins (Dist. Exs. 1 at pp. 2, 4; 2 at p. 3; 3 at p. 2). When given a fraction, the student read, shaded, and drew his own corresponding fraction, and added and subtracted fractions with common denominators (Dist. Exs. 1 at p. 4; 3 at p. 2). The March 2024 indicated that the student needed continued instruction in reasoning and word problem strategies, guided practice, and additional time when completing math assignments (Dist. Exs. 1 at p. 2; 2 at p. 3). The March 2024 IEP also indicated that the student had difficulty generalizing the skills taught to the natural environment and lacked the ability to apply his addition and subtraction skills to everyday occurrences (Dist. Exs. 1 at p. 5; 3 at p. 4).
Regarding receptive speech-language skills, the March 2024 IEP indicated that the student comprehended the following concepts: "wh" questions, basic pronouns, spatial concepts, what went together and what did not belong, and absurdities, but inconsistently understood directions involving temporal and conditional concepts (Dist. Ex. 1 at p. 3). The IEP reflected that the student understood multiple meaning words with prompts, but comprehension of concepts such as homonyms, idioms, and expressions was weak without verbal cues (id.). It was also reported that the student sequenced a complex five to six sequence story with verbal cues and understood inferences in pictures but needed verbal cues to comprehend inferences in stories (id.). The IEP reflected reports that the student required repetition and cues to comprehend a story read to him without picture cues, and had difficulty identifying the main idea versus details in a story, and relating biographical information, experiences, and remote events (id.). Additionally, the student reportedly required prompts to answer "why" questions, draw conclusions, and explain inferences, idioms, and expressions (id.).
The March 2024 IEP reported that expressively, the student usually communicated using four-to-five-word simple sentences (Dist. Ex. 1 at p. 3). In a structured setting, it was reported that he appropriately used regular plural nouns, auxiliary 'ing' verbs, pronouns, comparatives, superlatives, and appropriate verb tenses for the regular past and future tense but not irregular past tense verbs (id.). During reading tasks, the IEP reflected that the student did not use correct verb tense or possessive /s/ and use of the copula for auxiliary 'ing' verbs was inconsistent in conversation (id.). The IEP also indicated that the student needed fading prompts to use agent-action-object sentences to describe pictures, and that his sentence structure, length, and content was improving with cueing (id.). Additionally, the IEP reflected that the student did not include all grammar components in his sentences (id.).
Socially, the student's conversational skills were described as "intelligible," and he appropriately greeted others (Dist. Ex. 1 at p. 5). It was however noted that the student did not typically initiate or continue a conversation but responded to direct questions (id.). It was also reported that the student did not ask questions that showed an interest in others or ask for clarification if instructions were not clear to him (id.). The student labeled basic emotions but demonstrated difficulty with more subtle emotions depicted in pictures/stories (id.). It was reported that the student showed genuine interest for those in his environment, noticing when they are feeling sad or frustrated, and displayed appropriate empathy for others (Dist. Exs. 1 at p. 5; 3 at p. 3). The student also displayed the ability to label and describe how he was feeling such as happy, sad, and scared, within himself (Dist. Exs. 1 at p. 5; 3 at p. 3). Although the student did have a preferred friend, and displayed an interest in engaging with others, his conversational skills were often limited to his specific interests (Dist. Exs. 1 at pp. 5, 6; 3 at p. 3). It was reported that the student enjoyed playing with toys, drawing, building with Legos, reading alone, as well as playing familiar board games with peers (Dist. Exs. 1 at pp. 5-6; 3 at p. 3). The March 2024 IEP indicated that, "[i]n the classroom, [student] ha[d] a need to be the best at everything and will do whatever he can to excel, even at the expense of others" and that he "lack[ed] perspective taking skills, immediately blaming others for his daily mishaps" (Dist. Exs. 1 at p. 6; 3 at p. 5). It was also reported that "[w]hen experiencing an emotion, [student] may be able to label what he [wa]s feeling internally but c[ould]not always share it with others" (Dist. Exs. 1 at p. 6; 3 at p. 5).
The March 2024 IEP indicated that in the classroom the student had a hard time articulating his thought process and explaining it to others and became "frustrated easily" when others did not understand him (Dist. Exs. 1 at p. 4; 3 at p. 3). During times of frustration, the student shut down and said "forget it" or "never mind" and refuse[d] to explain further" (Dist. Exs. 1 at p. 4; 3 at p. 3). The IEP noted that the student required redirection from adults to draw out his thoughts or try another means of expressing himself (Dist. Exs. 1 at p. 4; 3 at p. 3).
Emotionally, the March 2024 IEP indicated that the student presented as an "anxious child" who lacked flexibility within his routine and became visibility agitated when there was a change (Dist. Exs. 1 at pp. 4-5; 3 at p. 5). It was reported that the student also had difficulty regulating his emotions and accurately gaging the size of the problem (Dist. Exs. 1 at p. 5; 3 at p. 5). The IEP indicated that the student's:
lack of flexibility and his need to be independent impact[ed] his ability to grow and learn from others. He insist[ed] that learning and activities go his way and g[ot] extremely frustrated when asked to do things differently or told 'no.' When this happen[ed], [the student] engage[d] in behaviors such as running, yelling, screaming, and throwing himself to the floor
(Dist. Exs. 1 at p. 5; 3 at p. 5). Parent report included in the IEP reflected that when the student was "extremely anxious" he "would resort to throwing and breaking items" (Dist. Ex. 1 at pp. 6-7).
As for physical development, the March 2024 IEP reflected information about the student's performance in OT and PT regarding specific skills and deficits in areas such as balance, stair navigation, executive functioning, graphomotor skills, mealtime and dressing skills, and personal hygiene (Dist. Ex. 1 at p. 6). According to the IEP, the student had recent surgery for "toe walking" and the IEP described the student's recovery from that procedure (id. at p. 7).
Although the parents challenge the sufficiency of information that the district obtained itself through district evaluations, when a student has not been attending a district public school, it is appropriate for the CSE to rely on the assessments, classroom observations, or teacher reports provided by the school the student was attending (see, e,g., S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *10 [S.D.N.Y. Nov. 9, 2011] [indicating that based upon 20 U.S.C. § 1414(c)(1)(A), a CSE is required in part to "'review existing evaluation data on the child, including (i) evaluations and information provided by the parents of the child; (ii) current classroom-based, local, or State assessments, and classroom-based observations; and (iii) observations by teachers and related services providers'"]; see also D.B. v. New York City Dep't of Educ., 966 F. Supp. 2d 315, 329-31 [S.D.N.Y. 2013] [upholding a district's reliance upon information obtained from the student's nonpublic school personnel, including sufficiently comprehensive progress reports, in formulating the IEP]; G.W. v. Rye City Sch. Dist., 2013 WL 1286154 at *23 [S.D.N.Y. March 29, 2013]). Here, in addition to the district psychoeducational evaluation, the hearing record supports a conclusion that the March 2024 CSE had sufficient evaluative information from other sources, such as the student's classroom teacher, the parent, and a progress report from Yad Yisroel, to develop an appropriate IEP. As discussed above, the March 2024 IEP reflected in large part the Yad Yisroel progress report, the psychoeducational evaluation report, and reports from school staff, who were present at the March 2024 CSE meeting (compare Dist. Ex. 1 at pp. 1-7, 29, with Dist. Ex. 2 and Dist. Ex. 3). There is no claim on appeal that the parents found the information available to the March 2024 CSE unreliable; rather, they disagreed with the overall programming recommendations. Additionally, the parents do not raise any concerns regarding the student's present levels of performance as identified by the March 2024 CSE in the IEP.
Based on the foregoing, the evidence in the hearing record demonstrates that the March 2024 CSE had sufficient information about the student in all areas related to the suspected disabilities and from a variety of sources.
C. March 2024 IEP
1. Interfering Behaviors
Turning now to the parents' argument that the district's failure to conduct an FBA and develop a BIP denied the student a FAPE for the 2024-25 school year, under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP.
Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., 361 Fed. App'x 156, 160 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172). State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider developing a BIP for a student that is based upon an FBA (8 NYCRR 200.4[d][3][i], 200.22[a]-[b]). Additionally, a district is required to conduct an FBA in an initial evaluation for students who engage in behaviors that impede their learning or that of other students (8 NYCRR 200.4[b][1][v]).
State regulations define an FBA as "the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment" and include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it
(8 NYCRR 200.1[r]). According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors (8 NYCRR 200.22[a][2]). An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement" (8 NYCRR 200.22[a][3]).
Although State regulations call for the procedure of using an FBA when developing a BIP, the Second Circuit has explained that, when required, "[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all" (R.E., 694 F.3d at 190). The Court also noted that "[t]he failure to conduct an FBA will not always rise to the level of a denial of a FAPE," but that in such instances particular care must be taken to determine whether the IEP addresses the student's problem behaviors (id.).
With regard to a BIP, the special factor procedures set forth in State regulations note that the CSE shall consider the development of a BIP for a student with a disability when:
the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; (ii) the student's behavior places the student or others at risk of harm or injury; (iii) the CSE or CPSE is considering more restrictive programs or placements as a result of the student’s behavior; and/or (iv) as required pursuant to [8 NYCRR 201.3]
(8 NYCRR 200.22[b][1]).
If the CSE determines that a BIP is necessary for a student "[t]he [BIP] shall identify: (i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors . . . ; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals" (8 NYCRR 200.22[b][4]).
The district's failure to develop a BIP in conformity with State regulations does not, in and of itself, automatically render the IEP deficient, as the IEP must be closely examined to determine whether it otherwise addressed the student's interfering behaviors (see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 80 [2d Cir. 2014]; F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 6-7 [2d Cir. Jan. 8, 2014]; M.W. v. New York City Dep't of Educ., 725 F.3d 131, 139-41 [2d Cir. 2013]; R.E., 694 F.3d at 190).
Here, the March 2024 CSE determined that the student "display[ed] behavior that interfere[d] with his learning and the learning of others" and that, therefore, he needed a BIP (Dist. Ex. 1 at p. 8). The main dispute between the parties related to whether it was appropriate the district should have conducted an FBA and developed a BIP for the student in advance of the March 2024 CSE meeting. The district asserts that the March 2024 CSE recommended daily paraprofessional services and robust supports to address the student's management needs, which would have enabled the student to access his education while an FBA was conducted and a BIP developed. The district further asserts that the failure to conduct an FBA and develop a BIP did not rise to a level of a denial of a FAPE as the March 2024 CSE relied on a BIP created by Yad Yisroel.
The director testified that Yad Yisroel had a BIP for the student during the 2023-24 school year, and that the school conducted a new FBA at the beginning of every school year and created a new BIP based on the assessment (see Tr. pp. 37, 47). The district's school psychologist testified that the March 2024 CSE noted the student's need for an FBA and BIP and the March 2024 CSE chose to rely on the BIP Yad Yisroel had developed at the time of the meeting as the program at that private school was markedly different from a public school, and explained further that, when the student began attending a public school, an FBA and BIP would need to be completed (Dist. Ex. 7 ¶¶ 2, 13). The school psychologist also testified that, until a district FBA and BIP were conducted, "[i]n the interim, the behavior paraprofessional, counseling along with the present levels of performance section of the [March] 2024 IEP would allow the public school to develop an appropriate program for the student and manage any behavioral issues" (id. ¶ 13).
The evidence also shows that the district had a plan to conduct an FBA when the student returned to the district for the 2024-25 school year and, upon completion of that assessment, the district would have determined the need for a BIP. The school psychologist acknowledged that the student needed behavioral supports; however, testified that, "creating a behavior plan for the unilateral placement d[id not] make sense on my end, as [the student was] in a very restrictive ABA program where they [we]re providing discrete trial training" (Tr. pp. 33-34). She testified that, if the student went to the public school placement, it was likely that "the behavior would be different," and that "he would need a behavior plan at that school" (Tr. pp. 34-35). Additionally, the school psychologist testified that "if [the student] were to attend a public school," staff at the school "would work on [the FBA and BIP]," noting that it was "outlined [in the IEP] that he has behavioral needs" (Tr. p. 35).
Given that Yad Yisroel conducted an FBA and developed a BIP for the student for the 2023-24 school year that was available to the March 2024 CSE, it would have made little sense for the district to conduct its own FBA in the private school environment when recommending a public school placement for the 2024-25 school year (see M.S. v. New Hyde Park-Garden City Park Union Free Sch. Dist., 2022 WL 903099, at *8 [E.D.N.Y. Feb. 3, 2022] [rejecting the parent's "claim that the CSE should have conducted their own FBA and BIP rather than rely on the [private school's] FBA and BIP, which were prepared only one month earlier"], adopted 2022 WL 903064 [E.D.N.Y. Mar. 28, 2022]). Moreover, it has been found that, in some instances, it is appropriate for a district to delay conducting an FBA and, if necessary, developing a BIP until a student commences attending the recommended educational environment (see Cabouli v. Chappaqua Cent. Sch. Dist., 202 Fed. App'x 519, 522 [2d Cir. Oct. 27, 2006]; Bd. of Educ. of Wappingers Cent. Sch. Dist. v. M.N., 2017 WL 4641219, at *11 [S.D.N.Y. Oct. 13, 2017]). Based on its knowledge of the student and the information before it, the district's determination to delay conducting its own FBA and to making a determination regarding the student's need for a BIP in the district recommended placement for the 2024-25 school year did not deny the student a FAPE.
The parents also allege that the district violated its own standard procedures, as the district standard operating procedures manual ("SOPM") mandates that when a behavior management paraprofessional is recommended the CSE "must first ensure" the student has an FBA and BIP, and that the paraprofessional must be trained in behavior management including how to implement the student's BIP with fidelity and such training must be listed in the IEP. However, defects arising out of the SOPM that do not also constitute violation of State or federal law and policy do not constitute a deprivation of a FAPE warranting tuition reimbursement (see, e.g., M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256 at *9-*10 [S.D.N.Y. Aug. 27, 2010]). To be sure, State guidance provides that a one-to-one aide "may not be used . . . as a substitute for an appropriately developed and implemented [BIP]" ("Guidelines for Determining a Student with a Disability’s Need for a One-to-One Aide," at p. 1, Office of Special Educ. Field Advisory [Jan. 2012], available athttps://www.nysed.gov/sites/default/files/programs/special-education/guidelines-for-determining-a-student-with-a-disabilitys-need-for-a-one-to-one-aide.pdf). However, as discussed above, this was not the district's intention and, instead, the student had a prior BIP developed by the private school and the 1:1 paraprofessional would have been an available support for the student while a new FBA was conducted and BIP developed to support the student in the new environment.
The parents also assert that the district did not sufficiently address the student's behavior and social/emotional needs as the student was anxious, lacked flexibility and had difficulty with emotional regulation. The parents reported that, when things did not go his way, the student resorted to behaviors such as running, yelling, screaming and throwing himself down to the floor (Dist. Exs. 1 at p. 5; 3 at p. 5). Supports to address the student's management needs included helping the student identify the 'size of the problem,' using an hourly body check system for the student to monitor himself, providing warnings before a change in schedule or transition, providing a quiet area of the classroom for the student to use for breaks, encouraging positive self-talk, using a sensory 'calm down box' to use when upset, providing positive reinforcement, and clearly stating expectations (Dist. Ex. 1 at p. 7). The March 2024 CSE created annual goals for the student to use coping strategies when in frustrating situations, use a visual chart to measure and identify emotions, and independently use a strategy taught when in a state of frustration (id. at pp. 18-20).
The school psychologist opined that the student's IEP annual goals and management needs were specific, measurable, and personalized to target and address the student's academic, social, and emotional deficits and that two 30-minute sessions of counseling weekly "would sufficiently address any anxiety issues" (Dist. Exs. 1 at p. 21; 7 ¶¶ 8, 11). The school psychologist concluded that, "[t]he IEP offer[ed] the necessary behavioral supports, services and interventions for [the student] through the management needs section, 1:1 behavior paraprofessional along with the counseling recommendation" (Dist. Ex. 7 ¶ 12).
Based on the evidence in the hearing record, although the district did not conduct an FBA or develop its own BIP, the March 2024 CSE relied on the private school BIP until such time that the student entered the public school and an FBA could be conducted in that setting. As discussed in more detail below, in the interim the March 2024 IEP otherwise addressed the student's behavioral needs by recommending 1:1 paraprofessional services, supports to address his management needs, counseling, and annual goals to address his attending, behavior, and communication needs (Tr. p 47; Dist. Ex. 1 at pp. 7-13, 18-20). Accordingly, there is insufficient basis to disturb the IHO's determination that the lack of an FBA or BIP conducted by the district was not a ground to find a denial of a FAPE, or that the March 2024 did not sufficiently support his behavioral needs.
2. 12:1+1 Special Class
Next, the parents argue that the March 2024 CSE's recommended 12:1+1 special class was not appropriate for the student, even with the support of a 1:1 paraprofessional. The parents argue that the 12:1+1 special class was too large to meet the student's needs.
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 to assist in the instruction of such students, shall not exceed 12 students, with one or more supplementary school personnel assigned to each class during periods of instruction" (8 NYCRR 200.6[h][4][i]).
As noted above, the March 2024 CSE recommended that the student attend a 12:1+1 special class for 10 periods a week for ELA, 10 periods a week for math, three periods a week for social studies, and four periods a week for science in a district non-specialized school (Dist. Ex. 1 at p. 21). Academic annual goals reflected the student's need to improve decoding and reading comprehension skills, ability to write a paragraph, and solve two-step and three-step division and numerical expression problems (id. at pp. 14-18). In conjunction with the 12:1+1 special class instruction, the March 2024 CSE also recommended that the student receive the following weekly related services: one individual 30-minute session of counseling; one 30-minute session of counseling in a group of three; four individual 30-minute sessions of OT; two individual 30-minute sessions of PT; three individual 30-minute sessions of speech-language therapy; and one 30-minute session of speech-language therapy in a group of three (id. at pp. 21-22).[9] The March 2024 CSE created annual goals for the student for speech-language therapy to increase his receptive, expressive, and pragmatic language skills (id. at pp. 9-11). The student's annual OT/PT goals worked on improving balance, writing legibility and executive functioning skills (id. at pp. 11-14).
To further support the student, the March 2024 CSE identified modifications and resources needed to address the student's management needs including: providing the behavioral supports described above; using sentence starters, writing prompts, graphic organizers, and manipulatives; providing comprehension checks during reading activities, a schedule, checklist, or visual schedule; helping the student initiate a task, assignment, or problem; rehearsing the schedule before each transition; and reminding the student to use communication skills (id.). Further, the March 2024 CSE identified that the student benefitted from a smaller, structured learning environment with differentiated instruction (id.).
As discussed above, regarding the 12:1+1 special class recommendation, the district's July 31, 2024 prior written notice indicated that the CSE considered both a 6:1+1 and a 12:1+1 special class in a specialized school which were rejected, "as [student] should be given the opportunity to be educated in the least restrictive setting" and that [w]ith the continued support of a 1:1 behavior management paraprofessional, it [wa]s believed that [the student] w[ould] be able to participate in and make progress in a class that would give him access to the standard curriculum with modifications" (Dist. Ex. 5 at p. 3; see Dist. Ex. 7 ¶¶ 9, 10).
Additionally, the school psychologist testified that the March 2024 CSE's "recommendation, in conjunction with the supports and management needs, and goals recommended in the IEP, would allow the [s]tudent to achieve meaningful academic and social growth and progress" (Dist. Ex. 7 ¶ 7). The school psychologist further testified that a specialized school was rejected because the student "would[not] have any interaction with students without IEPs" and the student would not be able to access the general education curriculum as he would in a community school (Tr. p. 33).
The IHO determined that there was "nothing in the record that establishe[d] the particular low ratio in which the Student should receive instruction," "[n]othing in the record establishe[d] that the Student require[d] a class with 12 students or seven students, so long as he receive[d] 1:1 and small group instruction" and there was "nothing in the record that establishe[d] what 'small group instruction' mean[t] for Student" (IHO Decision at p. 5). The IHO's observation in this regard illustrates a common predicament that often what is considered "small" in terms of class size is in the eye of the beholder (M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 335 [E.D.N.Y. 2012] [holding "[t]hat the size of the class in which [the student] was offered a placement was larger than his parents desired does not mean that the placement was not reasonably calculated to provide educational benefits"], aff'd, 725 F.3d 131 [2d Cir. 2013]), but a parent's decision to provide a smaller classroom ratio is not in and of itself conclusive evidence of the question of whether a public placement provides appropriate services to meet a student's needs (see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015]).
Here, the director testified that she did not believe a 12:1+1 special class would be sufficiently intensive or supportive for the student, even with the support of a 1:1 paraprofessional and opined that the student would not be able to transition to a 12:1+1 special class from his then-current class with an instructional ratio of "8:1:5" (Parent Ex. V ¶ 41). The director further opined that the 12:1+1 special class was "too large" for the student and would not provide the level of individual instruction and support he required or the proper small group instruction (id.).
However, the director testified that, when the student entered Yad Yisroel he attended a class with a ratio of 6:1:6 and that after a number of school years, they gradually transitioned the student to a "slightly larger" class with an instructional ratio of 8:1:5, and review of the progress report available at the March 2024 CSE indicated that the student was making progress in that setting (Parent Ex. V ¶ 41; Dist. Ex. 3). In addition to dedicated 1:1 paraprofessional services, to help the student manage the classroom environment the March CSE 2024 recommended giving the student warnings before a change in schedule or a transition, providing strategies to help the student manage his anxiety such as a sensory "calm down box" full of items that the student could use when he was upset, and a quiet area of the classroom for the student to take breaks/calm down in, and rehearsing the student's schedule before each transition (Dist. Ex. 1 at p. 7). Additionally, the CSE acknowledged that the student benefitted "from a smaller, structured learning environment" to provide him with the "individualized attention" to help him succeed and advised that instruction would be differentiated to the student and taught at his level (id.). Further, the student was described as a caring and friendly boy who enjoyed engaging with others and showed genuine interest in those in his environment, noticing when they were feeling sad or frustrated (id. at p. 5).
Thus, the evidence shows that the student had successfully transitioned to a class with a different instructional ratio in the past, and although not the same ratio as the student was receiving at the time of the March 2024 CSE meeting, there is no evidence that a 12:1+1 special class placement in conjunction with the other supports and related services in the March 2024 IEP was insufficiently supportive to meet the student's needs. Moreover, while the parents may have preferred the special class ratio provided at Yad Yisroel, districts are not required to replicate the identical setting used in private schools (see, e.g., M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *28 [S.D.N.Y. Sept. 28, 2018]; Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, at *6 [N.D.N.Y. June 19, 2009]; Watson v. Kingston City Sch. Dist, 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004]).
Based on the above, I find insufficient basis in the hearing record to disturb the IHO's finding that the district's recommended program in the March 2024 IEP was designed to provide the student with sufficient individualized support and was reasonably calculated to enable the student to receive educational benefits and offered the student a FAPE for the 2024-25 school year.
3. ABA Methodology/1:1 Instruction
The March 2024 CSE recommended 1:1 paraprofessional services for behavior management (Dist. Ex. 1 at pp. 7, 22). The parents do not disagree with this recommendation but rather argue that the student required 1:1 instruction using ABA methodology to learn.
With respect to ABA, generally, an IEP is not required to specify the methodologies used with a student and the precise teaching methodologies to be used by a student's teacher are usually a matter to be left to the teacher's discretion—absent evidence that a specific methodology is necessary (Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 [2d Cir. Oct. 29, 2014]; A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 [2d Cir. July 29, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 192-94; M.H., 685 F.3d at 257). As long as any methodologies referenced in a student's IEP are "appropriate to the [student's] needs," the omission of a particular methodology is not necessarily a procedural violation (R.B., 589 Fed. App'x at 576 [upholding an IEP when there was no evidence that the student "could not make progress with another methodology"], citing 34 CFR 300.39[a][3] and R.E., 694 F.3d at 192-94). Indeed, a CSE should take care to avoid restricting school district teachers and providers to using only the specific methodologies listed in a student's IEP unless the CSE believes such a restriction is necessary in order to provide the student a FAPE. However, when the use of a specific methodology is required for a student to receive an educational benefit, the student's IEP should so indicate (see, e.g., R.E., 694 F.3d at 194 [finding an IEP substantively inadequate where there was "clear consensus" that a student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee" of the use of this methodology]). If the evaluative materials before the CSE recommend a particular methodology, there are no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member (i.e. school psychologist) to rely on a broader approach by leaving the methodological question to the discretion of the teacher implementing the IEP (A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017]). The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate the "clear consensus" (R.E., 694 F.3d at 194).
The director, who is a certified special education teacher, a licensed behavior analyst (LBA), and a board certified behavior analyst (BCBA) testified that the student required 1:1 ABA instruction and the support of a 1:1 ABA paraprofessional instructor to "keep him attending in class," provide instructional support including repetition, reinforcement, and prompting, provide 1:1 behavioral support, and address sensory issues (Parent Ex. V ¶¶ 1, 17). The director also testified that it was her "understanding that the district IEP d[id] not provide any ABA instruction" (id. ¶ 42).
The November 2023 Yad Yisroel report that was before the CSE indicated the student benefited from intensive trial teaching (ITT), alternatively known as discrete trial training (DTT), which is a method where the instructor and student work one-on-one at a table, using a series of discrete antecedent-behavior-consequence learning trials to acquire skills (Dist. Ex. 3 at p. 4). The ITT focused on acquisition, fluency, and then mastery of individual educational targets that include language, literacy, mathematics, and pragmatics (id.). The report indicated the student required repetition of discriminative stimuli and consistent review for retention and maintenance of skills (id.).
While the Yad Yisroel November 2023 initial evaluation report that was before the March 2024 CSE recommended that the student continue to receive instruction "at Yad Yisroel" in a "special education class that utilizes behavior analytic (ABA) methodology" (Dist. Ex. 3 at p. 6), there was not a formal evaluation report before the CSE that made a recommendation for ABA methodology.[10] The district school psychologist acknowledged the recommendation in the Yad Yisroel report, noting that it was "an ABA school recommending ABA" (Tr. p. 32).[11], [12]
Even if the lack of mention of ABA in the IEP was a procedural violation, it did not amount to a denial of a FAPE in this instance given programming included in the IEP that would "address[] substantively similar issues as ABA would target" (A.H. v. New York City Dep't of Educ., 2025 WL 2773252, at *8 [S.D.N.Y. Sept. 29, 2025]; see R.B., 589 F. App'x at 576). For example, the March 2024 IEP indicated in the present levels of performance that academically the student would benefit from receiving explicit instruction in reading, being taught high frequency words and receiving ongoing spelling instruction, having continuous instruction on letter/sound knowledge, phonemic awareness, word recognition and word analysis strategies, receiving continued instruction in reasoning strategies, word problems and guided practice in math, and being provided with repetition and cues to comprehend (Dist. Ex. 1 at pp. 2-3). While not recommending ITT specifically, the March 2024 CSE provided for individualized instruction by recommended that the student receive individual sessions of counseling, PT, OT and speech-language therapy in addition to his 1:1 paraprofessional for behavior management (id. at pp. 21-22). Additionally, while the November 2023 report indicated that the student benefited from "1:1 learning time," it also indicated that he disliked missing group lessons, he enjoyed being a part of the classroom community, and he was an active participant in group activities (Dist. Ex. 3 at p. 2), which further supports the CSE's recommendation for a classroom group setting for the student to receive instruction. Further, the November 2023 Yad Yisroel report stated that the student used an activity schedule, graphic organizer, and sensory activities, and benefitted from positive reinforcement and reminders to use communication skills, similar to the recommendations from the March 2024 CSE (compare Dist. Ex. 3 at pp. 2, 3-4, with Dist. Ex. 1 at p. 7).
Accordingly, there is insufficient evidence in the hearing record to find that the CSE's failure to specify that the student exclusively required 1:1 instruction or ABA methodology to access his education amounted to a denial of a FAPE.
D. Assigned School Site
Turning now to the parents' allegation that the district did not follow up with their request for information regarding the assigned public school and to take a school tour, the United States Department of Education's Office of Special Education Programs (OSEP) has opined that the IDEA does not provide a general entitlement to parents of students with disabilities or their professional representatives to observe proposed school placement options for their children (Letter to Mamas, 42 IDELR 10 [OSEP 2004]; see Cornett v. Banks, 2025 WL 712799, at *7 [S.D.N.Y. Mar. 5, 2025] [finding that lack of a school tour would not justify a finding of a procedurally deficient IEP]; G.J. v. Muscogee County Sch. Dist., 668 F.3d 1258, 1267 [11th Cir. 2012] [noting that rather than forbidding or mandating access for parents, "the process contemplates cooperation between parents and school administrators"]; J.B. v. New York City Dep't of Educ., 242 F. Supp. 3d 186, 195 [E.D.N.Y. 2017] [noting that the IDEA does not afford parents a right to visit an assigned school placement before the recommendation is finalized]; J.C. v New York City Dep't of Educ., 2015 WL 1499389, at *24 n.14 [S.D.N.Y. Mar. 31, 2015] [acknowledging that courts have rejected the argument that parents have a right under the IDEA to visit assigned schools and listing authority], aff'd, 643 Fed. App'x 31; E.A.M. v. New York City Dep't of Educ., 2012 WL 4571794, at *11 [S.D.N.Y. Sept. 29, 2012] [finding that a district has no obligation to allow a parent to visit an assigned school or proposed classroom before the recommendation is finalized or prior to the school year]; S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *12 [S.D.N.Y. Nov. 9, 2011] [same]). On the other hand, there is district court authority indicating that a parent has a right to obtain information about an assigned public school site (see H.L. v. New York City Dep't of Educ., 2019 WL 181307, at *9 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 2015 WL 5564446, at *11-*18 [S.D.N.Y. Sept. 21, 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 23 F. Supp. 3d 210, 227-29 [S.D.N.Y. May 27, 2014] [holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it]).
Here, the school location letter, dated July 31, 2024 identified the assigned public school site and set forth information for an individual that the parents could contact to arrange a visit to the school (Dist. Ex. 6). According to the parents' 10-day notice letter dated August 14, 2024, the parents reached out to the assigned school but were unable to reach anyone to discuss the program and/or set up a tour (Parent Ex. C). In their letter, the parents also requested an alternative contact for the assigned school (id.). The testimony of the student's mother, which stated that she had "attempted to reach [the school]" but had been "unable to reach anyone" did not further elaborate regarding the manner she attempted contact, to whom such efforts were directed, whether her efforts were repeated, or whether the particular information sought by the parents could be obtained through other sources (Parent Ex. U ¶ 9).
Viewing the cases most favorable to the parent, the evidence in the hearing record does not demonstrate that the district denied the parents a procedural right to evaluate the assigned school. That is, unlike the parents in H.L., 2019 WL 181307 at *9-*10, and V.S., 25 F. Supp. 3d 295, 299-301, the parents here were aware of the school location to which the district assigned the student to attend. Further, unlike the parents in F.B., 2015 WL 5564446, at *11-*18, and C.U., 23 F. Supp. 3d at 227-29, who were attempting to respond to the district's offer to arrange for a school visit but written communications indicated the parents were repeatedly unable to get assistance or even a response from the district, there is insufficient evidence in the instant hearing record regarding the parents' efforts to follow up with the district (see Parent Ex. C). Accordingly, there is insufficient evidence present here to indicate that the district repeatedly failed to respond to the parents' written requests for information about the school placement.
Based on the foregoing, the evidence in the hearing record does not support a finding that the district denied the student a FAPE by not providing the parents with sufficient information about the assigned public school site.
As a final matter, the parents allege that the IHO glossed over the district's burden to prove the appropriateness of the assigned school placement; however, the parents did not raise any nonspeculative claims about the assigned school's capacity to implement the student's IEP and, therefore, the district was not required to present evidence in this regard. That is, 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 parents argue that the district's burden in this regard was self evident given the parents' allegations that the district "failed to offer [the student] sufficient supports, services, and accommodations" (Parent Mem. of Law at p. 16, citing Parent Ex. A at p. 3). However, such allegations are "substantive attacks on [the] IEP" that the parents now attempt to "couch[] as challenges to the adequacy" of the assigned school's capacity to implement the IEP (M.O., 793 F.3d at 245). Accordingly, the parents' claims pertaining to the assigned school are wholly speculative.
VII. Conclusion
There is insufficient basis in the hearing record to disturb the IHO's determination that the district offered the student a FAPE for the 2024-25 school year. Therefore, the necessary inquiry is at an end and there is no need to address the district's cross appeal regarding whether the parents met their burden to demonstrate that the student's unilateral program at Yad Yisroel was appropriate for the 2024-25 school year (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).
I have considered the parties' remaining contentions and find it unnecessary to address them in light of my determinations above.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's decision, dated March 31, 2025, is modified to correct the typographical error set forth in the closing paragraph and reflect the IHO's substantive finding that the district offered the student a FAPE for the 2024-25 school year and denial of the relief sought by the parents.
Footnotes
[1] Both parties submitted copies of the student's March 2024 IEP into the hearing record (compare Dist. Ex. 1, with Parent Ex. B). For purposes of this decision, only the district's exhibit will be cited.
[2] The student's eligibility for special education and related services as a student with autism is not in dispute in this appeal (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[3] Yad Yisroel has not been approved by the Commissioner of Education as a school which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[4] The parents also requested pendency (Parent Ex. A at p. 2). The district signed a pendency implementation form on September 30, 2024, agreeing that the student's pendency program was based on a prior IHO decision dated May 6, 2024, and consisted of a 12-month program at Yad Yisroel (see Pendency Implementation Form).
[5] 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).
[6] The director previously held the position of curriculum supervisor at Yad Yisroel and was the curriculum supervisor at the time of the March 2024 CSE meeting (compare Parent Ex. V ¶ 3, with Dist. Ex. 1 at p. 29).
[7] The November 2023 initial educational report reflected the following assessment tools: teacher observation, parental report, and informal assessments (Dist. Ex. 3). Much of the November 2023 initial educational report and the February 2024 psychoeducational evaluation report was incorporated into the student's March 2024 IEP, and the IEP present levels of performance are not in dispute (compare Dist. Ex. 1 at pp. 1-7, with Dist. Ex. 2 at pp. 1-4, and Dist. Ex. 3 at pp. 1-6).
[8] The March 2024 IEP indicated that the student's WIAT-4 spelling subtest standard score was in the borderline range (Dist. Ex. 1 at p. 1).
[9] Additionally, the CSE also recommended that the parents receive four 60-minute sessions per year of parent counseling and training (Dist. Ex. 1 at pp. 21-22).
[10] As noted above, the Yad Yisroel report was based on teacher observation, parental report, and information assessments (Dist. Ex. 3 at pp. 1-2).
[11] The student had attended Yad Yisroel, a school that utilizes ABA methodology, since the 2017-18 school year, the year the student became school-aged (Parent Ex. A at p. 1). As the student had not attended any other setting, there is no evidence that the student would not be able to learn through other methods.
[12] Although the CSE relied on reports from Yad Yisroel, it was not required to adopt wholesale the recommendations contained therein (see 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]).