STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-262
Application of a STUDENT WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
The Law Office of Fredericka P. Bashir, PLLC, attorneys for petitioners, by Fredericka Patrice Bashir, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Nicole Daley, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request to be reimbursed for their daughter's tuition at the Millbrook School (Millbrook) for the 2023-24 and 2024-25 school years. 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
Initially, it is worth noting that the hearing record is sparse as to the student's educational history prior to the student's placement at Millbrook for the 2023-24 school year (see Tr. pp. 1-50; Parent Exs. A-Q). A report of a November 2021 neuropsychological evaluation stated that the student was then-currently 14 years old and was in a ninth grade class at a nonpublic school (Parent Ex. D at pp. 1-13).
According to a letter sent by the parents to the district, a CSE convened on May 17, 2022, found the student eligible for special education as a student with an other health impairment, and recommended that the student receive integrated co-teaching (ICT) services and special education teacher support services (SETSS) (Parent Ex. B). Neither the student's May 2022 IEP nor any other IEP for the student was entered into the hearing record.
As of June 2023, the parents executed a contract with Millbrook for the student's attendance as a boarding student during the 2023-24 school year with a total tuition amount of $78,583.13 (Parent Ex. F).[1]
In an August 15, 2023 letter, the parents reported that a CSE meeting was not held for the student for the 2023-24 school year and requested that a meeting be held as soon as possible to develop an IEP for the student (Parent Ex. B). The parents added that, "since this has not occurred and school starts shortly," they were left with no alternative but to unilaterally place the student at Millbrook for the 2023-24 school year and seek tuition reimbursement at public expense (id.).
The student attended Millbrook as a 10th grade boarding student during the 2023-24 school year (see Parent Exs. F; H; J; L; O).[2]
On December 18, 2023, the student's treating psychiatrist issued a letter reviewing the student's recent testing and educational weaknesses and recommending that the student "be placed in an academic setting with small class size and access to support and remediation for students with [attention deficit hyperactivity disorder] ADHD, language and learning disorders" (Parent Ex. E).
In March 2024, the parents executed a contract for the student's enrollment as a boarding student at Millbrook for the 2024-25 school year with the total cost of tuition in the amount of $81,408.75 (Parent Ex. G at pp. 1-6).[3]
In an August 15, 2024 letter to the district, the parents reported that, on February 2024, a CSE meeting was held for the student for the 2023-24 school year, but asserted that the CSE did not hold a meeting to develop an IEP for the student for the 2024-25 school year (Parent Ex. C at p. 1). The parents also highlighted concerns with the lack of participants from Millbrook at the February 2024 CSE meeting, a failure to consider information provided prior to the meeting, and the lack of a general education teacher (id.).[4] The parents requested that a CSE meeting be held as soon as possible to develop an IEP for the student for the 2024-25 school year (id. at p. 2). They added that, "the CSE has not provided a [s]chool [l]ocation [l]etter for a recommended school and school starts shortly," and thus they were left with no alternative but to unilaterally place the student at Millbrook for the 2024-25 school year and seek tuition reimbursement at public expense (id.).
The student attended Millbrook as an 11th grade boarding student during the 2024-25 school year (see Parent Exs. G; I; K; M; N).
A. Due Process Complaint Notice
In a due process complaint notice, dated November 18, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 and 2024-25 school years (Parent Ex. A). The parents alleged that the district had failed to timely convene a CSE meeting, in that a CSE meeting was not held until February 8, 2024 for the 2023-24 school year, and the parents raised further allegations regarding the conduct of the February 2024 CSE meeting and the content of the February 2024 IEP (id. at pp. 3-4). In addition, the parents contended that there were deficiencies in the recommended program, including the class size and a lack of 1:1 instruction (id. at pp. 4-5). In addition, the parents alleged that the district failed to assign a public school for each school year at issue, and failed to provide the appropriate notice of the school the student was assigned to attend (id. at p. 5). For requested relief, the parents sought tuition reimbursement for the unilateral placement at Millbrook and also transportation costs (id. at p. 6).
B. Impartial Hearing Officer Decision
After holding prehearing conferences on December 20, 2024, January 15, 2025, and January 30, 2025, an impartial hearing convened and concluded before an IHO with the Office of Administrative Trials and Hearings (OATH) on March 6, 2025 (Tr pp. 1-42).[5] In a decision dated April 2, 2025, the IHO found that the district declined to present any evidence at the hearing, that the hearing record lacked a copy of the student's IEP or any testimony to explain the recommendations made, and, therefore, the district denied the student a FAPE for the 2023-24 and 2024-25 school years (IHO Decision pp. 3,6).
Next, the IHO found that the parent's unilaterally obtained program was inappropriate for the student as it "[did] not offer specifically designed instruction to meet [the student's] unique needs" for the 2023-24 and 2024-25 school years (IHO Decision at pp. 6-9). The IHO reviewed the evidence presented regarding Millbrook and identified a lack of information as to what specialized instruction the student was receiving beyond sessions in the school's "academic center" during the 2023-24 and 2024-25 school years (id. at pp. 7-8). The IHO noted the hearing record lacked evidence of how Millbrook tailored its program to the student's needs and determined the student "was only provided with accommodations" at the "academic center" rather than the "robust, supportive, inclusion program" recommended in the report of the 2021 neuropsychological evaluation (id.). Moreover, the IHO noted that despite the director's testimony as to what the academic center provided generally, the record was devoid of any information as to how the academic center addressed the student's specific needs (id.). The IHO determined that the services provided to the student at the academic center were more like "tutoring sessions to work on . . . assignments" rather than preplanned academic instruction (IHO Decision p. 8). Additionally, the IHO expressed concern that, according to the student's teacher, the student was missing academic center sessions regularly despite it being the only special education service the student was receiving (id at pp. 8-9). Finally, the IHO noted that the student was enrolled in a residential program at Millbrook and that there was no evidence in the record to indicate such a program was required to address the student's needs (IHO Decision at p. 9). The IHO concluded that the hearing record did not contain sufficient evidence to demonstrate that the unilaterally obtained program at Millbrook was appropriate for the student, including the residential services that were being provided and the IHO dismissed the parent's due process complaint notice with prejudice (id.).
IV. Appeal for State-Level Review
The parents appeal, alleging that the IHO erred in her determination that the parents' unilateral placement of the student at Millbrook for the 2023-24 and 2024-25 school years was not appropriate. The parents allege specifically that the IHO did not consider the totality of the circumstances in determining the appropriateness of the program and further argues that, contrary to the IHO's decision, the placement at Millbrook implemented the educational recommendations contained in the November 2021 neuropsychological evaluation and the December 2023 letter issued by the student's treating psychiatrist. For relief, the parents request that the IHO decision be reversed and that they be reimbursed for the costs of the student's tuition at Millbrook for the 2023-24 school year and the 2024-25 school year.
In an answer and cross-appeal, the district argues that the IHO decision should be affirmed because she applied the correct standard in her analysis and found that the unilateral placement was not appropriate as it did not offer instruction specially designed to meet the student's needs. The district further asserts that the evidence the parents referred to in support of their argument that the Millbrook incorporated the available recommendations was evidence of general assistance available to all students' in the school, rather than specific support for the student and that the hearing record shows the student's teachers and providers noted that the student needed additional help for her attention, focus, assignment submissions, and understanding directions. As for its cross-appeal, the district asserts that the IHO erred in not rendering a determination as to equitable considerations, which the district asserts warrant a denial or reduction in tuition based on the parents selecting a residential school for the student, which was not necessary, and on the voluntary tuition insurance portion of tuition as being akin to an award of damages.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[6]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion - Unilateral Placement
In the instant matter, the parent argues that the IHO's determination that Millbrook was not an appropriate unilateral placement for the student was made in error because she failed to apply the totality of the circumstances as the standard for determining the appropriateness of the privately obtained program. The parent further argues that the IHO's analysis is bereft of citation to the hearing record and short on analysis and that evidence in the hearing record supports finding that Millbrook was an appropriate placement for the student for both school years at issue. The district argues for upholding the IHO's determination, asserting that the IHO did consider the totality of the circumstances, including the lack of evidence of specially designed instruction provided to the student and evidence of the student's continued need for additional supports.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
Initially, to the extent that the parents assert that the IHO applied an incorrect legal standard, it is worth noting that the IHO cited the correct standard, including the above portion noting that in assessing the appropriateness of a unilateral placement, consideration must be given to "the totality of the circumstances" in order to determine whether the placement reasonably served the student's individual needs (IHO Decision at pp. 6-7). In addition, in applying the standard to the facts of this matter, the IHO reviewed the evidence presented by the parties with citations to the hearing record (id. at p. 7). Although the IHO did not explicitly refer to "the totality of the circumstances" in her conclusion, she stated that the evidence in the hearing record did not support finding Millbrook appropriate as there was insufficient evidence to conclude that the school provided instruction "specially designed for [the s]tudent in light of [her] unique circumstances" and the "program was not meaningfully designed for [the s]tudent to access educational benefits" (id. at p. 10). In review of the parents' arguments, it appears the parents' concerns are more relevant to the IHO's weighing of the evidence than the applicable standards used. While the parent does assert that the IHO erred in not considering the timing and the context leading up to the parents' placement of the student at Millbrook, the parents' main argument presented is that the Millbrook program description and the testimony of the director of the Millbrook academic center demonstrate that Millbrook implemented all of the recommendations contained within the 2021 neuropsychological evaluation report and the December 2023 letter issued by the student's psychiatrist. Putting the IHO decision to the side, I have conducted an independent review of the evidence in the hearing record and, as discussed below, find that the hearing record does not support finding that the parents' unilateral placement of the student at Millbrook was appropriate for either the 2023-24 or 2024-25 school years.[7]
A.Student Needs
A review of the information available in the hearing record concerning the student's needs and then-current functioning provides context to help assess whether the unilateral placement of the student at Millbrook was appropriate.
With respect to the student's needs, the director of the Colhoun Academic Center (CAC) at Millbrook (director) testified that the admissions process began with a thorough review of the student's educational records and evaluations, including school reports, IEPs, the most recent evaluations, and service provider communications, if applicable, which provided insights into the student's academic history, learning styles, and any documented challenges (Parent Ex. Q ¶¶ 14, 15). She further testified that the school did not administer their own evaluations, but instead used educational testing provided by the family to create a learning profile for the student, which she stated they had prior to the 2023-24 school year and was contained within the student's file at Millbrook (Tr. pp. 29-30). However, documentation regarding the student's needs prior to the student's placement, and included in the hearing record, is limited to the November 2021 neuropsychological evaluation report, with the December 18, 2023 letter from the student's treating psychiatrist being issued after the student began attending Millbrook during the 2023-24 school year (see Tr. pp. 15-42; Parent Exs. D-F; Q).
Review of the November 2021 neuropsychological evaluation report shows that it was an update of prior testing conducted in May 2013, January, February, and June 2014, and November 2017 (Parent Ex. D at p. 1). The evaluation report noted prior testing (including "consultation with the current examiner in 2017") and further noted the student met the criteria for a learning disorder across reading, writing, and math as part of testing done in June 2014 (id. at pp. 1-2). The November 2021 evaluation report noted that the 2017 evaluation revealed academic weaknesses and found that the student's academic output was hampered by inter-related weaknesses in language, memory, motor, and executive functioning domains and that she met the criteria for a learning disorder in reading and math and an attentional disorder (id. at p. 2). At the time of the prior evaluation of the student in 2017, the student "qualified for academic support and remediation" in a small, structured, inclusion program along with "routine accommodations" such as extra time for assignments and tests, math facts tables, computer and calculator, individualized attention, and preferential seating (id.).
According to the evaluation report, at the time of the evaluation, the examiner found the student warm, friendly, cooperative, and eager to do well; but noted that while she displayed good effort, she did not reliably approach material in an organized way, demonstrated fatigue and her work was subject to some impulsivity, rushing, and careless errors (Parent Ex. D at pp. 2-3). Administration of the Wechsler Intelligence Scale for Children—Fifth Edition (WISC-V) placed the student in the average range on the general abilities index, visual spatial index, verbal comprehension index, and in fluid reasoning; in the low average range on the processing speed index; and in the borderline range on the working memory index (id. at pp. 3-4). Based on formal assessment of scholastic skills, in the administration of the Wechsler Individual Achievement Test—Fourth Edition (WIAT-4), the student was performing in the high average range in sentence combining; in the average range in spelling, sentence building, and reading comprehension[8]; in the low average range in math problem solving, math fluency (multiplication/subtraction/addition), orthographic fluency, pseudoword decoding, numerical operations, and word reading; and in the borderline range for decoding fluency (id. at p. 5). The evaluator further noted that while formal assessment of scholastic skills found that the student had improved in spelling, silent reading comprehension, and structured composition, her "reading [wa]s still dysfluent" with weaknesses in sight word identification and decoding; with respect to mathematics, the student was described as being in the below average range across basic, applied, and timed tasks and testing showed weaknesses in the areas of math problem solving, math fluency, and numerical operations (id. at pp. 5-6).
With respect to language development, testing found the student's skills in the average range in the areas of semantic relationships, letter and number naming, and immediate recall; in the borderline to low average range in verbal learning in a delayed condition; in the borderline range for sentence assembly, phonological processing, and delayed recall; and in the deficient range for inhibition naming (Parent Ex. D at p. 7). Regarding attention and executive function, testing yielded results in the average range on tasks requiring inhibition of automatic responses to stimuli and word generation, in the borderline range on shifting attentional sets and nonverbal response initiation, and in the deficient range in the areas of auditory attention and design fluency with switching (id. at pp. 7-8). The examiner noted that the student had ongoing difficulty resisting distraction while "working in mind" (id. at p. 9). On motor tasks the student was found to be performing in the superior range in copying complicated designs, average range in the areas of finger dexterity, immediate recall of the organization of details and motor coordination and low average range in visual perception (id. at p. 8).
The examiner, who had previously worked with the student in 2017, reported that the student had "better access to her good reasoning now" (in 2021) and that results of the general abilities index fell "much higher up now" in the average range with improvement in the areas of logical thinking and inductive reasoning, identifying and applying abstract rules, conceptual relationships, verbal reasoning, and tangible puzzle tasks, as well as on challenging tasks requiring inhibition of automatic responses to stimuli (Parent Ex. D at pp. 3-5, 7-9). Improvement was also noted in the areas of spelling, silent reading comprehension, structured sentence composition, written expression, letter and number naming, motor functions, finger dexterity, handwriting and the understanding of comparative, spatial, passive, and temporal relationships in sentences (id. at pp. 6-9). The examiner indicated that the student was "weaker now" in the area of delayed recall and on a task of sustaining auditory attention (id. at p. 7).
Recommendations included the use of extra thinking time, margins and post-it notes, preferential seating, checklists, chunking of work periods, breaks, a calculator, markers or colored transparency strips for reading, prereading, audiobooks, chunking for writing tasks, word processing, organizational strategies, and testing accommodations (Parent Ex. D at pp. 10-13). Further, within the recommendations the examiner stated that, given the student's ongoing, significant learning difficulties, the student continued to require a robust, supportive, inclusion program providing special education services to college-bound students (id. at p. 10). The examiner recommended the student be provided an accommodating and supportive academic environment "to enable optimal learning conditions" (id.).
In a December 18, 2023 letter, the student's psychiatrist stated that she was treating the student for the diagnosis of attention deficit hyperactivity disorder (ADHD), inattentive presentation (Parent Ex. E at p. 1). The psychiatrist reported that, despite the student's psychopharmacologic treatment, her language, learning, and attention disorders put her at risk for "failure to function academically" in a manner consistent with her true intellectual potential and, therefore, the psychiatrist recommended that the student be placed in an academic setting with a "small class size" and access to support and remediation for students with ADHD and language and learning disorders (id. at pp. 1-2).
B.Millbrook School - Specially Designed Instruction
On appeal, the parents assert that the parents' placement of the student at Millbrook provided the student with "instruction, supports, methodology, supervision and services that are specifically designed to meet their child's unique special needs in order to make mature meaningful educational progress." In support of this, the parents contend that the testimony of the director of the Millbrook academic center demonstrates that Millbrook implemented all of the recommendations contained within the above-described 2021 neuropsychological evaluation report and the December 2023 letter from the student's psychiatrist.
The director of the Colhoun Academic Center at Millbrook described Millbrook as an independent, co-educational college preparatory boarding and day school that provides specialized academic instruction for students in a structured and supportive learning environment (Parent Ex. Q ¶ 4; see Parent Ex. P). The director testified that classrooms were "inclusive in that students with and without learning differences [we]re educated in the same classroom," and that the classes had an average size of 11 students (Parent Ex. Q ¶¶ 5, 9).[9]
The director explained that some students at Millbrook had diagnoses of language-based, math-based, or executive function "special learning needs that require[d] a more individualized and supportive learning environment to maximize the student's potential" (Parent Ex. Q ¶ 8). She added that, following evaluative testing, students with diagnosed learning differences in the areas of reading, writing, mathematical skills, and executive function were placed in the Colhoun Academic Center as a condition of admission, in order to meet their needs (id. at ¶ 14). The director of the academic center testified that the development of individualized learning plans for students with learning differences was a collaborative and comprehensive process and that the Colhoun Academic Center played a pivotal role in working closely with the students, their families and faculty members to tailor support strategies that align with each student's unique needs (id. at ¶ 15).
The director further testified that Millbrook utilized accommodations and specialized instruction in the classroom, targeted and customized to each student according to need (Parent Ex. Q ¶ 12). The director testified that the student was provided accommodations and supports including outlines, chunking, graphic organizers, audiobooks, read-aloud reading assistance, and use of a computer with spell check software (id. at ¶ 33). In addition, the student received extended time on in-class evaluations, preferential seating, and a separate location and breaks, as needed, for evaluations (id. at ¶ 36).
The director testified that Millbrook did not utilize formal programs in writing, reading, or math but that instruction was integrated into the core content curriculum and coursework and that all core content areas provided a structured approach to writing instruction (Parent Ex. Q ¶¶ 21-23). Regarding tools used to address the student's language-based learning differences, the director testified that reading and writing instruction, including decoding and reading comprehension, were integrated into the core curriculum and coursework (id. at ¶ 33). In addressing the student's math needs, the director testified that the student received 1:1 assistance from her math teachers during office hours and 1:1 tutoring from her learning specialist at the academic center and from student peers (id. at ¶ 35a).[10] According to the director, to address the student's ADHD and executive functioning issues, the student used a written and digital planner to keep track of assignments and received support in developing a work plan for assignment completion (id. at ¶ 35b).
The student's second semester, tenth grade (2023-24 school year) summary indicated that the student's academic schedule and grades, which included classes in improvisation (A), English (B+), Spanish (B), world history (B), algebra (B), and chemistry (C), as well as tutoring sessions at the academic center which were ungraded (Parent Ex. L at pp. 1-3). The summaries provided for the student's academic center indicated that one teacher's "tutoring sessions were often devoted to planning for writing assignments" and the other teacher worked on algebra and chemistry with the student (id. at p. 1). With respect to the teacher focused on writing skills, the student was described as arriving late, not wanting to be there, and assuring the teacher she could handle things on her own—with the teacher noting that the student would see marked improvement if she focused her attention on her schoolwork (id.). In contrast, the student's other teacher for the academic center indicated that the student had doubts about her abilities, was punctual and focused during sessions, came prepared with specific questions and stayed past the scheduled time, and that the student's positive attitude and willingness to learn made the sessions productive (id.).
Regarding English, teacher comments stated that the student struggled with deadlines sometimes and occasionally got distracted with side conversation in class, but also described the student as having "consistent growth throughout the academic year," "incredibly positive" contributions in class, and growth in her writing (Parent Ex. L at p. 2). Reporting in world history, indicated the student "seemed content doing the bare minimum," had "untapped potential," and would benefit from using the extra help sessions more often the next year (id.). The student's math teacher encouraged the student to revisit concepts learned during the year to achieve mastery and to take time in completing homework assignments (id.). In chemistry, the student was similarly described as being capable of more than she demonstrated, having "an overly passive approach to class," and as rarely coming for extra help sessions (id. at p. 3). The teacher summaries did not indicate any special instruction or strategies employed to support the student's needs in those classes (id. at pp. 2-3).
The student's first semester, eleventh grade (2024-25 school year) summary identified that the student's academic schedule and grades for the first semester, which included classes in English (D+), Spanish (B+), United States history (B-), pre-calculus (D+), and physics (C), as well as tutoring sessions at the academic center which were ungraded (Parent Ex. M at p. 1). Summaries from the student's academic center teachers indicated the student's sessions focused on pre-calculus and United States history, as well as reading comprehension in relation to the student's history assignments (id.). According to the academic center teacher summaries, the student demonstrated resilience in overcoming academic challenges, made notable progress in completing pre-calculus preparation and assignments, demonstrated strong critical thinking, and had shown dedication through resubmitting assignments and preparing for tests (id.). One teacher noted that the student should attend office hours more regularly for the next semester (id.).
In English, the report stated that the student struggled to turn in work, did not turn in major writing assignments, avoided direct communication, may need additional support in this area, and that if she "decides to ground herself in the rigorous writing schedule, she has the capacity to thrive" (Parent Ex. M at p. 1). Although the student was struggling in turning in assignments in English, there is no indication in the hearing record that the student received any supports. In Spanish, the student also struggled to turn in assignments in a timely manner and was encouraged to attend office hours (Parent Ex. M at p. 1).
Regarding history class, the teacher noted that the student's participation in class discussions had grown steadily but that "[h]iccups with submitting the work late or incomplete have hindered her performance" and the teacher "would like to see [the student] take more advantage of the rewrite policy" (Parent Ex. M at p. 2). In math the teacher stated the student was having a "rough" time and that her grade suffered due to incomplete homework (id.). According to the math teacher, "attending one-on-one office hours could provide [the student] with the targeted support she need[ed] to strengthen her understanding" (id.). In physics the teacher noted that the student was "delightful" but also noted that "it seem[ed] that she ha[d] not broken an academic sweat" in physics and could find more success with a bit more effort on homework and class work (id.). However, he also noted that the student would have had more success if she put more effort in homework and class work and further noted that going to office hours would improve her understanding (id.). The teacher summaries did not indicate any special instruction or strategies employed to support the student's needs in those classes (id. at pp. 1-2).
Regarding the supports provided through the academic center, the director stated that the academic center was an "academic hub," which centralized teaching faculty, learning specialists, advisors, resources, technology, and study spaces that were accessible to students during the school day and offered student centered services such as individualized 1:1 subject-specific academic tutoring by a learning specialist, group subject specific academic tutoring, individualized reading/writing/math assistance, college test preparation, and organizational and executive function skills including study skills, time management, self-advocacy and test taking methodology (Parent Ex. Q ¶ 16). The director testified that the academic center was a part of the student's class schedule twice a week for 35 minutes (id. ¶29). According to the director, the academic center provided academic tutoring by a learning specialist, whose qualifications are having a bachelor's degree or higher, as well as individualized reading, writing, and math assistance, college test preparation, organizational skills and executive function skills (id. ¶¶ 16, 18). The director further testified that students could also access their assigned academic advisor who also acts as counselor, mediator, parent liaison, and advocate (id. at ¶¶ 19, 29). The director testified that they did not "pull" students out of their core classes but that they "add sessions in" during the student's free periods (Tr. p. 35). The director testified that at the academic center did not assign their own work but supported the student's work for other classes as they were separate 1:1 tutoring sessions (Tr. pp. 35-36).
Within a 2023-24 end of the year advisor report, the student's advisor stated that "it was definitely a year of adjustment" and that teachers' comments indicated that the student had the ability to perform well (Parent Ex. O at pp. 1-2). The advisor continued in stating that he was unsure if the student belied in her ability and defaulted to the idea that she was not capable; however, the advisor noted he "would be more apt to accept the idea of an inherent weakness if [the student] had taken advantage of all the support structures available to her " (id.). The student's advisor further noted that the student would benefit from not missing academic center sessions, going to "Stutors," taking advantage of silent study hall, and attending extra help sessions with her teachers (id. at p. 1).[11] The advisor stated that the student needed to take "more ownership" of her own learning and be "more proactive," and that in this way she might be surprised that she does have ability in all subjects (id. at pp. 1-2). However, other than encouraging the student, it is unclear what further steps, if any, were taken to ensure that the student received the assistance and supports the advisor indicated she needed (see id.).
A November 2024 Millbrook mid-year advisor report stated that the student's teachers saw a lot of promise and had noted the student's potential to make even greater progress with some additional consistency and support (Parent Ex. N at p. 1). The report included encouragement for the student to use her workbook to support her understanding, to complete test corrections and homework assignments, and to focus on consistency in meeting deadlines and refining the quality of her work (id. at pp. 1-2). The report also included the notation that it was "crucial" for the student "to regularly attend[] office hours in her respective courses moving forward" (id.). In sum, the advisor stated that with some extra focus and a willingness to make use of the resources available, the student had everything needed to make this a successful semester (id. at p. 2).
Upon my independent review of the hearing record, the evidence supports the IHO's determination that the parents failed to meet their burden to demonstrate that Millbrook was an appropriate unilateral placement for the student. As an initial matter, in making her findings, the IHO discussed and analyzed the evidence in the hearing record including the student's identified needs as described in the 2021 neuropsychological evaluation and the 2023 psychiatrist letter, the director's testimony regarding the Millbrook program, and the grade summaries and advisor reports produced by Millbrook (see IHO Decision at pp. 7-9). As noted by the IHO, while the parent proffered generic evidence of the educational program available to all students at Millbrook, the record contained scant information concerning how instruction at the nonpublic school addressed the student's unique needs. For instance, while the director testified that the development of individualized learning plans for students with learning differences was a collaborative and comprehensive process at Millbrook, to the extent that a learning plan have been developed for the student, it was not included in the hearing record. The director also testified generally as to accommodations and supports the nonpublic school offered the student including outlines, chunking, graphic organizers, audiobooks, read-aloud reading assistance, development of a work plan for assignment completion and use of a digital planner, and use of a computer with spell check software (Parent Ex. Q ¶¶33; 35a-36); however, the provider summaries and reports overall reflect minimal use of the accommodations or supports detailed by the director or how they addressed the student's needs.[12] As noted by the IHO, the support the student received in the academic center was designed as tutoring sessions and the hearing record indicates that the student was missing sessions to the extent that almost all of her teachers and the learning specialists indicated the student needed to make more use of extra help sessions (see IHO Decision at pp. 8-9). Indeed, the summaries and reports produced by the nonpublic school focus primarily on ways in which the student could more effectively engage in self-help by making use of various available tutoring opportunities, extra help sessions, office hours, and the academic center in order to achieve more progress (see Parent Exs. L-O); however, other than the academic center and indications that staff encouraged the student to be more proactive in taking advantage of it as a resource, there is little evidence identifying specialized instruction the student received in the Millbrook program, particularly in the classrooms (see Gagliardo, 489 F.3d at 114 [2d Cir. 2007][although a hearing record may support finding that a nonpublic school provided special education services as a general matter, it does not necessarily follow that the school provide the special education services specifically needed by the student]).
As a result, under the totality of the circumstances, while the hearing record shows that Millbrook offered a comprehensive educational program, it does not support finding that the program met the student's individual needs, leaving too much on the student to take advantage of available support structures without identifying special education supports that would help the student access them, something that, based on the information in the hearing record, was necessary for her to obtain an educational benefit. Accordingly, the IHO correctly determined that the hearing record lacked adequate information concerning the specialized instruction provided to the student at Millbrook and properly denied tuition reimbursement to the parent.
VII. Conclusion
Having found that the hearing record supports the IHO's finding that the parents failed to demonstrate that the unilateral placement of the student at Millbrook was appropriate for the student for the 2023-24 and 2024-25 school years, the necessary inquiry is at an end and there is no need to reach the issue of whether equitable considerations support an award of tuition reimbursement (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).[13]
THE APPEAL IS DISMISSED.
Footnotes
[1] The total tuition was broken down as $75,750.00 described as "[b]oarding [t]uiton," $750.00 described as "[g]eneral [f]ee- [b]oarding," and $2,083.13 described as "[t]uition [r]efund [i]nsurance- [b]oarding" (Parent Ex. F at p. 5).
[2] The student's report cards from Millbrook indicate that the student was attending 10th grade during the 2023-24 school year and 11th grade during the 2024-25 school year (Parent Exs. L; M). However, the 2021 neuropsychological evaluation report indicates that the student was in 9th grade during the 2021-22 school year and the parents' due process complaint notice indicates that the student was in the 11th grade for the 2023-24 school year and 12th grade for the 2024-25 school year (Parent Exs. A at p. 2; D at p. 1).
[3] The total tuition was broken down as $78,500.00 described as "[b]oarding [t]uiton," $750.00 described as "[g]eneral [f]ee- [b]oarding," and $2,158.75 described as "[t]uition [r]efund [i]nsurance- [b]oarding" (Parent Ex. G at p. 5).
[4] As noted above, the hearing record does not include any of the student's IEPs.
[5] The transcript for the January 30, 2025 preliminary conference date is consecutively paginated with the rest of the hearing dates; however, it is out of order and the pagination of the transcript of the January 30, 2025 preliminary conference follows after the pagination of the of the March 6, 2025 hearing, so that the transcripts are paginated as follows: December 20, 2024 (pages 1-7); January 15, 2025 (pages 8-14); March 6, 2025 (pages 15-42; January 30, 2025 (pages 43-50) (Tr. pp. 1-50).
[6] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[7] To the extent that the parent asserts that the IHO should have taken into consideration "the timing and context" of how the unilateral placement of the student occurred, it is worth noting that there is no dispute that the district denied the student a FAPE for both school years at issue. However, it is also worth noting that while the timing of a parent's unilateral placement may be taken into consideration as part of a determination as to whether or not it was reasonable at the time it was made (see Application of a Student with a Disability, Appeal No. 20-114 [parent's unilateral placement was reasonable considering the limited options available at the time the placement decision was made]); in this instance, the parents contracted for the student's attendance at Millbrook well in advance of the start of both school years (see Parent Exs. F; G). Accordingly, the hearing record does not support the parents' argument that the IHO overlooking the timing or context of the parent's decision to place the student at Millbrook would have had any impact on the determination as to whether it was reasonable considering the totality of the circumstances.
[8] Administration of the Gray Oral Reading Tests—Fifth Edition (Gort-5) Form A showed that the student performed in the low average range in rate, accuracy, fluency, and comprehension, with an oral reading quotient in the low average range (Parent Ex. D at pp. 5-6). The examiner noted that the student's reading comprehension was found to be "essentially" average in terms of silent reading on the WIAT-4 but was relatively weak (low average) when reading aloud for fluency and without the text for reference on the GORT-5 (id. at p. 6).
[9] The director of the Millbrook academic center testified that the school had a dedicated counseling center and that the parents "report[ed] [the student] ha[d] accessed the counseling [c]enter as needed" (Parent Ex. Q ¶¶24; 39).
[10] The affidavit of the director contains two questions numbered 35, accordingly the first is designed as 35a and the second is designated as 35b (Parent Ex. Q at ¶¶ 35a; 35b).
[11] The hearing record does not otherwise include the term "Stutors"; accordingly, it is unclear if this was a reference to a specific program available at the school or if it was a typographical error and merely referred to the tutors available in the academic center (Parent Ex. O at p. 1).
[12] A note by the student’s academic tutor, for the 2024-25 school year, indicated that it was her practice to read aloud to the student and to stop periodically to check for understanding and "to break down the main ideas," with her; these general statements constitute the few instances where the specific use of a strategy or support for the student was detailed in the hearing record (see Parent Ex. M at p. 1).
[13] Having determined that the unilateral placement of the student at Millbrook was not appropriate, it is not necessary to reach the matter of equitable considerations; however, as the IHO noted, to the extent that the student was enrolled as a boarding student and Millbrook operated as both a day school and as a residential school, even if it were determined that the school was appropriate funding for the residential portion of the student's tuition would not be appropriate, as the hearing record does not support finding that the student required a residential program or that Millbrook provided any special education services to the student beyond the school day (see IHO Decision at p. 9).