STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-270
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Gulkowitz Berger LLP, attorneys for petitioner, by Shaya M. Berger, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Sarah M. Pourhosseini, 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. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which determined that the educational programs respondent's (the district's) Committee on Special Education (CSE) had recommended for her daughter for the 2023-24 and 2024-25 school years were appropriate. 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 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 hearing record is sparse with regard to the student's educational history; however, it shows that she has been eligible for special education as a student with autism since at least April 2022 (Dist. Ex. 10 at p. 1).[1]
On April 13, 2022 a CSE convened, found the student eligible for special education as a student with autism, and developed an IEP with a projected implementation date of April 27, 2022 (Dist. Ex. 10 at pp. 1, 26). The April 2022 CSE recommended that the student attend a 12-month 8:1+1 special class placement in a district specialized school and receive two periods per week of adaptive physical education, two 30-minute sessions per week of group occupational therapy (OT), two 30-minute sessions per week of individual speech-language therapy, and one 30-minute session per week of group speech-language therapy (Dist. Ex. 10 at pp. 18-19, 23). The April 2022 CSE further recommended that the student participate in an alternate assessment for ELA, math and sciences, and receive special transportation services including transportation from the closest safe curb location to the school (id. at pp. 22, 23). Additionally, the CSE recommended four 40-minute sessions per month of parent counseling and training (id. at p. 18).
On June 16, 2022, the district created a meeting notice that a CSE would reconvene on June 16, 2022 to review and revise the student's IEP (see Dist. Ex. 4). The June 2022 meeting notice stated that "[t]he purpose of this meeting is to change [the student]'s placement to a Less Restrictive Environment (LRE) 12:1:1 class effective this summer 2022" (id. at p. 1). A CSE reconvened on June 16, 2022 and developed an IEP for the student with an implementation date of September 6, 2022 (Dist. Ex. 1 at pp. 1, 24). The June 2022 CSE recommended a 12-month 12:1+1 special class placement in a district specialized school with two periods per week of adaptive physical education, two 30-minute sessions per week of group OT, two 30-minute sessions per week of individual speech-language therapy, and one 30-minute session per week of group speech-language therapy (Dist. Ex. 1 at pp. 16-17, 18, 22). The June 2022 CSE also recommended that the student participate in an alternate assessment and that the student be provided with special transportation from the closest safe curb location to school (id. at pp. 20, 21). Further, the CSE recommended four 40-minute sessions per year of individual parent counseling and training (id. at p. 17).
On September 21, 2022, the parent filed a due process complaint notice which was heard by IHO I (Parent Ex. B at p. 1). Through the September 2022 due process complaint notice, the parent sought an award of funding for 10 periods per week of special education teacher support services (SETSS) at a rate of $200.00 per hour as relief for an alleged denial of a free appropriate public education (FAPE) for the 12-month 2022-23 school year (id.).
By notice dated May 17, 2023, the parent was invited to attend a CSE meeting scheduled for May 30, 2023 (Dist. Ex. 5 at pp. 1-3). A CSE convened on May 30, 2023, continued to find the student eligible for special education as a student with autism, and developed an IEP with a projected implementation date of June 5, 2023 (Dist. Ex. 2 at pp. 1, 26). The May 2023 CSE recommended 12-month services consisting of a 12:1+1 special class in a district specialized school together with related services (id. at pp. 17-18, 19, 23-25). Specifically, the May 2023 CSE recommended five periods per week of math, 10 periods per week of English language arts (ELA), two periods per week of social studies, and two periods per week of sciences to be delivered in a 12:1+1 special class, one period per week of adapted physical education, one 30-minute session per week of group occupational therapy (OT), one 30-minute session per week of individual speech-language therapy, and one 30-minute session per week of group speech-language therapy (id. at pp. 17-18, 23-25). The May 2023 CSE further determined that the student would participate in an alternate assessment in the subjects of ELA and math (id. at pp. 21-22, 25). In addition, the May 2023 CSE recommended special transportation services to include door-to-door transportation from the closest safe curb location to school (id. at p. 23). In a prior written notice dated June 6, 2023, the district summarized the recommendations of the May 2023 CSE and identified the options considered and rejected by the CSE and the reasons why (Dist. Ex. 8 at pp. 1-2).
For the 2023-24 school year, the student received the program recommended by the May 2023 CSE while attending a district specialized school and in addition, she received unilaterally obtained home-based special education teacher support services (SETSS) provided by Kids Domain (Parent Ex. A at p. 1; Dist. Ex. 3 at pp. 1-2; see Tr. p. 28; Parent Ex. F).[2]
On April 10, 2024, an IHO in a prior matter rendered a decision resolving the parent's claims set forth in a September 21, 2022 due process complaint notice, which concerned the 2022-23 school year (Parent Ex. B at pp. 1-4). The IHO in that matter found that the district conceded that it failed to offer the student a FAPE for the 2022-23 school year, and as relief, ordered the district to reimburse the parent or directly fund 10 periods per week of SETSS at a rate of $200 per hour for the 12-month, 2022-23 school year (id. at pp. 3-4).
By notice dated May 7, 2024, the parent was invited to attend a CSE meeting scheduled for May 15, 2024 (Dist. Ex. 6 at pp. 1-3). A CSE convened on May 15, 2024, continued to find the student eligible for special education as a student with autism and developed an IEP with a projected implementation date of May 16, 2024 (Dist. Ex. 3 at pp. 1, 24).[3] The May 2024 CSE continued to recommend that the student receive 12-month services in a 12:1+1 special class in a district specialized school (id. at pp. 16-17, 22-23). Specifically, the May 2024 CSE recommended five periods per week of math, 10 periods per week of ELA, two periods per week of social studies, and two periods per week of sciences to be delivered in a 12:1+1 special class, one period per week of adapted physical education, one 30-minute session per week of individual speech-language therapy, one 30-minute session per week of speech-language therapy in a group of two, and four 45-minute sessions per year of parent counseling and training in a group (id. at pp. 16-17, 22-23). The May 2024 CSE further determined that the student would participate in an alternate assessment in the subjects of ELA and math (id. at pp. 20, 23-24). In addition, the May 2024 CSE recommended special transportation services to include door-to-door transportation from the closest safe curb location to school (id. at p. 21).
By prior written notice dated May 29, 2024, the district summarized the recommendations of the May 2024 CSE and identified the options considered and rejected by the May 2024 CSE and the reasons why (Dist. Ex. 9 at pp. 1-4).
A. Due Process Complaint Notice
In a due process complaint notice dated December 9, 2024, the parent alleged that the district denied the student a FAPE for the 2023-24 and 2024-25 school years (see Parent Ex. A). The parent alleged that the district's failure to recommend an additional 10 periods per week of SETSS along with the recommendations for a 12:1+1 special class and related services denied the student a FAPE for the 2023-24 and 2024-25 school years. Specifically, the parent asserted that the May 15, 2024 IEP failed to address the student's academic and social/emotional needs, and failed to confer meaningful educational benefit without the addition of 10 periods per week of SETSS (id. at p. 1).[4] The parent further argued that the unappealed April 10, 2024 IHO decision—which awarded the parent funding for 10 periods per week of SETSS for the 2022-23 school year—supported her position that the district's recommended program was insufficient without the addition of 10 periods per week of SETSS for both the 2023-24 and 2024-25 school years (id. at pp. 1-2). As relief, the parent requested funding for 10 periods per week of SETSS for the 12-month, 2023-24 and 2024-25 school years at the provider's rate (id. at p. 2).
B. Impartial Hearing Officer Decision
An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed to preside over the matter on December 12, 2024 (IHO Decision at p. 1). On January 10, 2025, the parties convened for a prehearing conference (Tr. pp. 1-12). On January 17, 2025, the IHO issued an interim order on pendency finding that the student's pendency program was based on an unappealed April 10, 2024 IHO decision (IHO Ex. II at p. 1). As pendency, the IHO found that the student was entitled to 12-month services consisting of 10 periods per week of SETSS (id.). The parties reconvened before the IHO on March 13, 2025 for an impartial hearing (Tr. pp. 13-39).
In a decision dated April 4, 2025, the IHO found that the district offered the student a FAPE for the 2023-24 and 2024-25 school years (IHO Decision at pp. 1, 5-7, 10).[5]
IV. Appeal for State-Level Review
The parent appeals and asserts that the IHO erred in (1) finding that the district was not aware that the parent "required SETSS for [the s]tudent or that [the s]tudent was receiving SETSS;" (2) finding that the district developed appropriate IEPs and met its obligation to offer a FAPE to the student for the 2023-24 and 2024-25 school years; (3) finding that the parent witness was not credible; (4) finding that the parent's request for 10 periods of SETSS per week was not an appropriate program; (5) finding that the parent acted inequitably and that her conduct warranted denial of her claim; and (6) dismissing the parent's request for funding of 10 periods per week of SETSS for the 12-month, 2023-24 and 2024-25 school years at the chosen provider's rate.[6] As relief, the parent requests funding for 10 periods per week of SETSS for the 12-month 2023-24 and 2024-25 school years at the provider's rates.
In an answer and cross-appeal, the district argues that the IHO correctly determined that the district offered the student a FAPE for the 12-month, 2023-24 and 2024-25 school years and correctly denied the parent's requested relief.[7]
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see 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]).[8]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
A. Scope of Review
Before addressing the merits of the parent's appeal, a determination must be made regarding which claims are properly before me. State regulations governing practice before the Office of State Review provide that a request for review "shall clearly specify the reasons for challenging the [IHO's] decision, identify the findings, conclusions, and orders to which exceptions are taken, or the failure or refusal to make a finding, and shall indicate what relief should be granted by the [SRO] to the petitioner" (8 NYCRR 279.4[a]). Additionally, a request for review must provide a "clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately, and identifying the precise rulings, failures to rule, or refusals to rule presented for review" (8 NYCRR 279.8[c][2] [emphasis added]). The regulation further states that "any issue not identified in a party's request for review, answer, or answer with cross-appeal shall be deemed abandoned and will not be addressed by a State Review Officer" (8 NYCRR 279.8[c][4]).
The parent alleges that the IHO erred in finding that the district "was unaware that [the p]arent required SETSS for [the s]tudent or that [the s]tudent was receiving SETSS" (Req. for Rev. ¶ 6). The parent further argues that the IHO "relied on his findings that [the district] was unaware that [the s]tudent was receiving 10 periods of SETSS per week and that [the p]arent had not expressed concerns that [the s]tudent required SETSS" (Req. for Rev. ¶ 14). The parent contends that the IHO's factual findings are not correct and asserts that the student had received 10 periods per week of SETSS funded by the district for many years, through pendency or through a settlement between the parties in prior proceedings.
The district argues that the parent misrepresents the IHO's findings.
Review of the IHO's decision confirms that it contains errors, such as misstating the existence of an implementation claim and in making determinations that were unrelated to this matter, which are errors more akin to typographical errors, likely due to overwriting a prior decision, and failing to proofread, rather than errors in factual findings. For example, initially the IHO stated that the parent alleged that the district failed to implement IEPs for the 12-month, 2023-24 and 2024-25 school years (IHO Decision at p. 1). The IHO then correctly stated on the next page of the decision that the student in this matter attended a district specialized school pursuant to May 2023 and May 2024 IEPs for the 12-month, 2023-24 and 2024-25 school years (id. at p. 2). The IHO also set forth determinations at the outset of his decision, finding that the district persuasively demonstrated that the student was offered a FAPE "from the IEPs and the offered educational programs during the 2023-2024 and 2024-2025 school years," that "[a]lternatively … even if [the s]tudent had been denied a FAPE for either school year, the requested relief of 10 hours per week of SETSS … from [Kids Domain] would be denied because it was not an appropriate compensatory educational services award," and that the parent's request for district "funding of the unilaterally obtained SETSS … for the 2023-2024 and 2024-2025 school years" would be denied (id. at p. 1). The subsequent Findings of Fact section was consistent with the IHO's opening statement (id. at pp. 2-5).
However, in the opening of the next section, Conclusions of Law and Analysis, the IHO held that "concerning the 2024-2025 school year, the [district] made substantive violations in the provision of services, which sufficiently establish a denial of FAPE" and that the parent's request for district "funding of services from Agency as compensatory services" was granted (IHO Decision at p. 5). The IHO then determined that there were "no procedural or substantive violations in creating the 2023 IEP" and that there were "no procedural or substantive violations in creating the 2024 IEP" (id. at pp. 5, 6). The IHO's subsequent analysis was consistent with findings that the district offered the student a FAPE for the 12-month, 2023-24 and 2024-25 school years (id. at pp. 5-7, 10).
Specifically, the IHO found that the district "met its burden to show that the 2023 IEP provided a FAPE," that the "2023 IEP team had the proper members," that the parent attended the CSE meeting and that the May 2023 IEP did not include "objections or rejection of any services requested by [the p]arent" (IHO Decision at p. 5). The IHO also noted that there was no additional documentation in the hearing record to demonstrate the parent requested "either in the IEP or separate communications … that show[ed the p]arent was requesting additional SETSS services be provided to [the s]tudent" (id.). The IHO further found that the May 2023 IEP referenced the evaluations and recommendations conducted in February 2023, that these evaluations provided information on multiple categories of the student's present levels of performance, and that the May 2023 IEP indicated that the student was adjudged to be making academic, social, and behavioral progress at the district specialized school (id.). The IHO also stated that the May 2023 IEP "lack[ed] any comment that [the s]tudent was receiving any additional tutoring or SETSS support at home" and found that the May 2023 CSE was not aware of this information (id.).
Next the IHO determined that the district "met its burden to show that the 2024 IEP provided a FAPE," that the "2024 IEP team had the proper members," that the parent attended the CSE meeting and that the May 2024 IEP did not include "objections or rejection of any services requested by [the p]arent (IHO Decision at p. 6). The IHO again noted that there was no additional documentation in the hearing record to demonstrate the parent requested "either in the IEP, or separate communications … to show [that the p]arent was requesting additional SETSS … be provided to [the s]tudent" (id.). The IHO also determined that the May 2024 IEP referenced the evaluations and recommendations conducted in February 2024, that these evaluations provided information on multiple categories of the student's present levels of performance, that the May 2024 IEP indicated that the student was adjudged to be making academic, social, and behavioral progress at the district specialized school (id.). The IHO further stated that the May 2024 IEP "lack[ed] any comment that [the s]tudent was receiving any additional tutoring or SETSS support at home" and found that the May 2024 CSE was not aware of this information (id.). In addition, the IHO found that both the May 2023 IEP and the May 2024 IEP contained clear annual goals and were reasonably calculated to enable the student to make progress appropriate in light of the student's circumstances (id. at p. 6).
Although the parent correctly notes that the IHO found that the May 2023 and May 2024 CSEs were not aware that the student had been receiving 10 periods per week of home-based SETSS, the parent's assertion that this finding was the IHO's sole basis for determining that the district offered the student a FAPE for the 12-month, 2023-24 and 2024-25 school years is wholly without merit as described above. Further, the IHO found that the May 2023 CSE and May 2024 CSE recommended appropriate programs without the addition of home-based SETSS, and correctly determined as an equitable consideration that the parent's unilaterally obtained SETSS were in excess of the requirements of a FAPE to the student (IHO Decision at pp. 5-7, 8-9).
Next, the parent alleges that the IHO erred in finding the testimony of the director of Kids Domain was not credible. The director of Kids Domain provided an affidavit in lieu of direct testimony and appeared for cross-examination at the impartial hearing (Tr. pp. 26-32; Parent Ex. J). With regard to both school years at issue, the IHO found that the director's testimony that the student "required support at home and in a 'quiet room'" was not "credible" (IHO Decision at pp. 6, 7, 9). The IHO found that the director did not perform any evaluations of the student or provide any services to the student, and failed to show where she obtained information about the student, because no information was provided regarding what documents she reviewed or any communications she had with the provider's supervisor, or with the SETSS provider (id.). The IHO further determined that the director had "no basis of knowledge established to demonstrate the reliability of [her] opinions" and failed to comment on the May 2023 and May 2024 IEPs or provide an opinion on whether the IEPs offered the student a FAPE for the 2023-24 and 2024-25 school years (id.). The IHO stated that the director's "retroactive dissatisfaction in [the s]tudent's progress or additional … gains f[rom] unilateral services at home … d[id] not itself establish a denial of [a] FAPE" (id.).
The IHO's determinations described above, amount to credibility findings arising from the IHO's assessment of the witness's ability to recall events, and, generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076).
Here, the IHO assessed the director's knowledge of the student's needs within the context of his analysis of whether or not the district offered the student a FAPE for the school years at issue and in determining that the parent's unilaterally obtained SETSS were in excess of the requirements of a FAPE (IHO Decision at pp. 6, 7, 9). The IHO did not conduct a separate analysis of the appropriateness of the parent's unilaterally obtained SETSS, thus it cannot be said that the IHO improperly faulted the parent for any deficiencies in identifying the student's needs (see A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]).
Notwithstanding the above, I have conducted an independent review of the hearing record and note the IHO's credibility determinations along with the weight accorded the director's testimony by the IHO. To the extent that I agree or disagree with the IHO's findings of fact, it is based on the weight accorded to the evidence, not the credibility of the witnesses' testimony (see L.K. v. Ne Sch. Dist., 932 F. Supp. 2d 467, 487-88 [S.D.N.Y. 2013]; E.C. v. Bd. of Educ. of City Sch. Dist. of New Rochelle, 2013 WL 1091321, at *18 [S.D.N.Y. Mar. 15, 2013]; J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *9-*10 [S.D.N.Y. Feb. 20, 2013]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 581 [S.D.N.Y. 2013]).
The parent also alleges that the district failed to meet its burden of proof by relying solely on documentary evidence. Contrary to the parent's contention, the district's presentation of documentary evidence was sufficient to sustain its burden of proof, particularly in a case such as this where there is no question that the IEPs at issue were implemented during the 2023-24 and 2024-25 school years (see Application of a Student with a Disability, Appeal No. 24-084 [reversing the IHO's determination that the district failed to meet its burden of proof without testimony "to explain why it was appropriate . . . to rely on [the evaluative information] and why the IEP was appropriate"]).
Lastly, the parent's arguments that the district was aware of the parent's desire for the May 2023 and May 2024 CSEs to recommend home-based SETSS or that the student had been receiving home-based SETSS through pendency or an agreement between the parties in prior proceedings has no relevance to the issue in this matter. A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 160-61 [2d Cir. 2004]; Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 459 [S.D.N.Y. 2013] [noting that "pendency placement and appropriate placement are separate and distinct concepts"]).
As discussed below, the issue in this matter is whether or not the student required 10 periods per week of home-based SETSS to receive a FAPE for the 12-month, 2023-24 and 2024-25 school years. Review of the hearing record in this matter supports the IHO's determination that the student does not require 10 periods per week of home-based SETSS to receive a FAPE.
B. FAPE 2023-24 School Year-May 2023 IEP
A discussion of the student's needs provides context to resolve the issue in dispute, namely whether the May 2023 IEP offered appropriate supports and services to address those needs absent a recommendation for home-based SETSS.
According to the May 2023 IEP, the student was "an intentional communicator who use[d] multiword utterances" to express her wants and needs, made requests using full sentences, and used language to greet, request, reject, comment, and ask and answer basic questions (Dist. Ex. 2 at pp. 2, 4, 5). Receptively, the student followed multistep directions and classroom routines, and required processing time when completing tasks (id. at pp. 3, 4).
The May 2023 IEP indicated that the student's reading skills were at a kindergarten level; she identified all upper and lower case letters of the alphabet and sounds of the letters, demonstrated book orientation, decoded at least 20 CVC words, and had made progress towards a goal of answering WH questions about text (Dist. Ex. 2 at pp. 1, 2, 3).
In writing, the student was able to write all letters of the alphabet and at least five CVC words with prompting, copied sentences with some difficulty spacing between words and letters, and inconsistently identified nouns and verbs (Dist. Ex. 2 at pp. 2, 3). The student had made progress toward a goal to write three sentences when provided with sight words, and would continue working on writing simple sentences when provided with CVC words (id. at pp. 3-4).
Regarding math, the student was performing at a first grade level and demonstrated the ability to count to 100 by 1, solve addition and subtraction problems within 10 with visual support and use regrouping and borrowing with a number line, and independently identified when a number is greater than, less than, or equal to (Dist. Ex. 2 at pp. 1, 2, 4).
The May 2023 IEP indicated that the student learned best during small group instruction, engaged the most during hands-on activities, and benefitted from a reduced number of multiple choices and instructions, and use of manipulatives and visual representations of math problems (Dist. Ex. 2 at p. 3). Additionally, the student needed "a structured environment with repetition and ongoing practice," minimal redirection and assignment differentiation to acquire a new skill, and constant repetition and multiple opportunities to demonstrate acquired skills (id.).
Socially, the May 2023 IEP indicated that the student established relationships with peers and classroom staff, engaged in appropriate play with peers, and demonstrated concern/interest in others' behaviors (Dist. Ex. 2 at p. 5). The student needed to be called on during whole group instruction, but initiated participation during small group instruction (id.). Although she worked for positive reinforcement, when having "a difficult time" the student screamed to classroom staff, cried, and "st[o]mp[ed] on the floor" and required support to self regulate (id.).
With regard to physical development, the May 2023 IEP described the student's "mature pattern" gross motor skills, ball-handling skills, and ability to perform rhythmic activities (Dist. Ex. 2 at p. 5). Regarding graphomotor skills, the student drew shapes and lines that represented objects and people, held writing tools with an appropriate grasp, wrote all lower and upper case letters from a visual model, and copied three to four word sentences (id. at pp. 3, 6). Additionally, the student used scissors, manipulated fasteners, fed and dressed herself, and used the bathroom without assistance (id. at p. 6).
Turning to the dispute on appeal, the hearing record shows that to meet the student's special education needs during the 2023-24 school year, the May 2023 CSE recommended 12-month programming consisting, in part, of a 12:1+1 special class in a district specialized school (Dist. Exs. 2 at pp. 17-18, 19, 23; 8 at pp. 1-3). 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]). By way of comparison, State regulation provides that 8:1+1 or 6:1+1 special classes are intended to address the needs of students whose management needs are determined to be "intensive" or "highly intensive" and requiring "a significant" or "a high" degree of individualized attention and intervention, respectively (8 NYCRR 200.6[h][4][ii][a]-[b]).
As rationale for this placement, the May 2023 CSE determined that the student "require[d] a highly specialized educational program that facilitate[d] the acquisition, application, and transfer of skills across natural environments" (Dist. Ex. 2 at p. 7).[9] The May 2023 IEP further noted that the student required direct instruction in activities of daily living, a small student to adult ratio provided in a district specialized school where she could "have support and supervision at all times," and help from classroom staff with self-regulating when upset (id.). Further, the May 2023 CSE recommended that the student receive one 30-minute session per week of individual speech-language therapy, one 30-minute session per week of speech-language therapy in a group, and two 30-minute sessions per week of group OT services (id. at p. 18).
In addition to the supports provided by the special education teacher and supplementary school personnel in the 12:1+1 special class, the May 2023 CSE determined that the student would benefit from strategies to support her management needs, including additional time for assignments, review of directions, visual and verbal prompts, preferential seating, verbal redirection, graphic organizers, use of manipulative, rest breaks, reinforcers, scaffolding, structured classroom, positive behavior intervention, incentives, questions read, extra time to process information, and extra time to complete work (Dist. Ex. 2 at pp. 6-7).
A review of the May 2023 IEP reveals that the CSE developed annual goals and short-term objectives consistent with the student's needs identified in the present levels of performance (Dist. Ex. 2 at pp. 9-16). Specifically, annual goals were designed to improve the student's: ability to answer WH reading comprehension questions, accurately write 25 CVC words, solve math word problems within 1000 using a number line, engage in three conversational exchanges with a peer, answer WH questions related to information presented orally, and demonstrate improved visual perceptual and spatial awareness skills for writing (id.).
Turning to the parent's request for home-based SETSS, according to the director of Kids Domain (director), the student required "additional SETSS" in conjunction with her school-based program due to her diagnosis of autism, and her difficulty processing information and learning in the classroom (Tr. pp. 26, 31). The director testified that the student was "a sensory child," who was "easily distractible" and although in a self-contained class, tended to "run around the room" and it was "very hard to engage her" (Tr. p. 31). The director stated that when the SETSS provider worked with the student 1:1 "in a quiet room in the home," the provider was able to "work with [the student] on her academic skills," which she opined would not otherwise occur in the classroom setting (id.).
However, the director also testified that she did not observe the SETSS sessions delivered to the student and she was not the SETSS provider's supervisor (Tr. pp. 29-30). Nor was there any indication that her statements about the student's classroom behavior were formed from observations of the student at school during the 2022-23 school year as a basis for her opinion that the student required home-based SETSS in addition to her school-based programming to appropriately meet her needs for the 2023-24 school year (see Tr. pp. 28-32; Parent Ex. J). Additionally, the May 2023 CSE acknowledged the student's need for constant redirection, the May 2023 IEP reflected that the student was making progress toward her academic goals at school, and it was anticipated that she would meet her annual goals (see Dist. Ex. 2 at pp. 2, 3). Overall, while the evidence in the hearing record may support a conclusion that the home-based SETSS may have benefitted the student and were understandably desired by the parent, the hearing record lacked proof that the home-based SETSS were necessary for the student to receive educational benefits from her school-based programming (C.G. v. New York City Dep't of Educ., 752 F. Supp. 2d 355, 359-60 [S.D.N.Y. 2010]; see Rowley, 458 U.S. at 189, 199-200; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).
In light of the evidence described above, the hearing record supports the IHO's finding that the May 2023 IEP offered the student a FAPE and that the student did not require 10 periods per week of individual, home-based SETSS in order to receive a FAPE (see IHO Decision at p. 10; see generally Dist. Ex. 2). Here, the 12:1+1 special class placement, together with the related services, annual goals, and management needs, addressed the student's language and academic difficulties, her need for redirection and prompting, and her need for more individualized attention (see Dist. Ex. 2 at pp. 2-18).
C. FAPE 2024-25 School Year-May 2024 IEP
With regard to the 2024-25 school year, the parent again asserts that the program recommended by the May 2024 CSE was insufficient to address the student's needs without the provision of 10 periods per week of home-based SETSS. The hearing record does not support the parent's contention.
A review of the evidence in the hearing record shows that the May 2024 CSE relied on the results of the February 2024 and May 2024 Student Annual Needs Determination Inventory (SANDI), February 2023 and February 2024 Formative Assessment of Standards Task, December 2023 and April 2024 Reading A to Z running record, New York State Alternate Assessment student work portfolio, and teacher report (Dist. Exs. 3 at pp. 1-2; 9 at p. 3). The May 2024 IEP reflected that the student was performing at the kindergarten level in reading and a first to second-grade level in math (Dist. Ex. 3 at pp. 1, 2). According to the IEP, the student had made progress on her previous annual goals of answering questions about a text and writing three sentences when provided sight words, and had mastered annual goals for solving subtraction and addition problems using a number line and making a request using full sentences (id. at p. 2).
The May 2024 IEP reported that based on teacher observation, the student could decode at least 50 CVC words, follow a book from left to right, identify the author, illustrator, characters, setting, story structure, and sequence, and make inferences (Dist. Ex. 3 at p. 3). She could identify the front and back cover of a book, and answer "wh" questions about a book when provided with visual support and scaffolding (id.). According to the IEP, the student could write all letters of the alphabet and at least 15 CVC words independently, copy sentences when prompted, and identify nouns and verbs with visual support (id.). The IEP stated that the student could identify upper- and lower-case letters, knew the sounds of each letter, and could connect the letter to a reference picture (id.). She could draw shapes and lines to represent people and objects, and hold writing tools with appropriate grasp (id.). The May 2024 IEP also reported that the student could count by ones to 100, add and subtract problems within 100 when provided with visual supports, compare numbers, and when provided with a number line, could solve addition and subtraction problems using regrouping and borrowing (id. at pp. 3-4).
Regarding adaptive behavior and learning style, the May 2024 IEP reported that the student responded to positive behavior interventions and incentives, required "moderate" redirection when doing independent work or following directions during instructional times, and used a classroom schedule for transitions between classes (Dist. Ex. 3 at p. 2). She needed a structured environment with repetition and ongoing practice, required "minimal" redirection and assignment differentiation to acquire new skills, and needed "constant repetition and multiple opportunities to demonstrate acquire[d] skills" (id. at p. 3). The IEP additionally stated that the student was a visual and kinesthetic learner who engaged best with hands-on activities (id.). According to the IEP, the student learned best during small group instruction, required processing time when completing tasks, and benefitted from a reduced number of multiple-choice options and instructions read to her during ELA instruction, and from manipulatives and visual representation of problems in math (id.).
With regard to the student's communication skills, the May 2024 IEP reported that the student responded to different noises around the classroom, repeated words and sounds on request, and communicated her wants and needs and made requests using full sentences of six or more words (Dist. Ex. 3 at p. 4). According to the IEP, the student needed to continue to work on having appropriate conversations with peers when prompted (id.). The IEP noted that the student had improved her ability to answer "wh" questions but continued to have difficulty answering questions related to story grammar elements such as characters, setting, problem and solutions, and with recounting story events (id.).
The May 2024 IEP further reported that the student established social relationships with peers and classroom staff, engaged in age-appropriate play, requested to sit near peers during lunch or structured play, and worked for positive reinforcement (Dist. Ex. 3 at p. 5). According to the IEP, the student initiated participation during small group instruction but needed to be called on to participate during whole group instruction (id.). The IEP additionally noted that according to the parent, the student's social skills had improved, and she was a "social butterfly" who "continuously talk[ed] about her friends and family" and stated that the parent did not have any concerns about the student's social development (id.).
In terms of the student's physical development, the May 2024 IEP reported that the student demonstrated motor skills such as hopping, skipping, and dribbling (Dist. Ex. 3 at p. 5). She could dress and feed herself and used the bathroom without assistance (id.). According to the IEP, the student could write upper- and lower-case letters from a visual model, copy five-to-six-word sentences with verbal prompting to complete tasks, and benefited from using paper with lined boundaries cueing for proper spacing (id. at pp. 5-6). She could cut along a straight line, curved line, zigzag line, and wavy line, and around a circle and a square, and manipulate a variety of clothing fasteners (id. at p. 6). The IEP noted that the student had met her goals for OT and was recommended to be discharged from receiving OT services (id.).
The hearing record shows that to meet the student's special education needs during the 2024-25 school year, the May 2024 CSE recommended that the student receive 12-month services consisting of a 12:1+1 special class in a district specialized school with adapted physical education, and speech-language therapy (Dist. Exs. 3 at pp. 16-17; 9 at pp. 1-3). According to the May 2024 IEP, the student "require[d] a highly specialized educational program that facilitate[d] the acquisition, application, and transfer of skills across natural environments" (Dist. Ex. 3 at p. 7). The May 2024 IEP further noted that the student required direct instruction in activities of daily living, a small student to adult ratio provided in a district specialized school where she could "have support and supervision at all times," and help from classroom staff with self-regulating when upset (id.).
In addition to the supports provided by the special education teacher and supplementary school personnel in the 12:1+1 special class, the May 2024 CSE determined that the student would benefit from strategies to support her management needs, including additional time for assignments, review of directions, visual and verbal prompts, preferential seating, verbal redirection, graphic organizers, use of manipulatives, rest breaks, reinforcers, scaffolding, structured classroom, positive behavior intervention, incentives, questions read, extra time to process information, and extra time to complete work (Dist. Ex. 3 at p. 6).
A review of the student's May 2024 IEP reveals that CSE recommended annual goals and short-term objectives consistent with the student's needs identified in the present levels of performance (Dist. Ex. 3 at pp. 8-14). To address the student's speech and language needs, the May 2024 CSE developed an annual goal for answering "wh" questions and questions related to story grammar elements, including characters, setting, problem, and solution (id. at pp. 8-9). The CSE also recommended annual goals to address the student's academic needs, including reading 40 CVC words, using a number line to solve four-digit addition and subtraction problems with regrouping and borrowing, using proper capitalization, punctuation and spelling conventions when writing, decoding and encoding multisyllabic words with short and long vowel sounds, and identifying the main idea and supporting details in a story (id. at pp. 10-14). The May 2024 IEP additionally included an adapted physical education goal (id. at pp. 9-10).
Review of the May 2024 IEP did not indicate that the student exhibited behaviors that interfered with her learning or that of others at school, or required related services to address behavior needs (see Dist. Ex. 3). On appeal the parent asserts that "[t]wo 2022 IEPs" reflect the student became frustrated and easily distracted when she did not get her own way, and yelled and refused to follow directions and self-regulation strategies to help calm herself down (Req. for Rev. ¶ 16). According to the IEP, the student responded to positive behavior intervention and incentives but did not require a behavioral intervention plan (Dist. Ex. 3 at pp. 2, 7). Further, the student did not appear to exhibit behaviors at home during the timeframe in dispute that required home-based services to address, specifically, the May 2024 IEP reported that according to the parent, the student was "more independent, vocal, confident, and expressive" and that "[s]he use[d] her words more and [did not] have outbursts like before" (id. at p. 4). Review of the SETSS progress reports prepared in January 2024 and January 2025 describing the home-based SETSS services, do not indicate that the student exhibited behaviors at home, and that she was making progress toward reducing behaviors at school (Parent Exs. F; H). Notably, the parent's reliance on outdated and superseded IEPs tends to support the progress described in the May 2024 IEP and undermines her argument that the student required home-based services. In addition, to the extent the student exhibited behaviors at home that were not observed during the school day, several courts have held that the IDEA does not require school districts, as a matter of course, to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom (see F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *8-*10 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100 [2d Cir. Jan. 19, 2017]; P.S. v. New York City Dep't of Educ., 2014 WL 3673603, at *13-*14 [S.D.N.Y. Jul. 24, 2014]; see also Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 [11th Cir 1991]).
Review of the hearing record indicates that the May 2024 IEP offered the student a FAPE and that the student did not require 10 periods per week of individual, home-based SETSS in order to receive a FAPE (see IHO Decision at p. 10; see generally Dist. Ex. 3). For the 2024-25 school year, the recommended 12:1+1 special class placement, together with the related services, annual goals, and management needs, addressed the student's language and academic difficulties, her need for redirection and prompting, and her need for more individualized attention.
Based on the foregoing, I cannot conclude that the IHO erred in applying the burden of proof, in weighing the evidence, or in ultimately determining that the May 2023 and May 2024 IEPs offered the student a FAPE (see Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 756 [2d Cir. 2018], cert. denied sub nom., 139 S. Ct. 322 [2018] [stating that "a district is not required to furnish 'every special service necessary to maximize . . . [a student's] potential"']; see, e.g., R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *15 [S.D.N.Y. Sept. 27, 2013] ["While the record indicates that [the student] may have benefited from home-based services, it contains no indication that such services were necessary"], aff'd, 589 Fed. App'x 572 [2d Cir. Oct. 29, 2014]; Application of a Student with a Disability, Appeal No. 20-096 [finding that the CSE's failure to recommend "additional services extending into the student's home environment" did not deny the student a FAPE where such home-based services were sought for the "purpose of generalizing the student's skills into the home setting"]).
VII. Conclusion
In conclusion, the parent's arguments and the hearing record, as a whole, do not present a basis to overturn the IHO's determination that the district offered the student a FAPE for the 12-month 2023-24 and 2024-25 school years.
I have considered the parties' remaining contentions and find they are unnecessary to address in light of my determinations above.
THE APPEAL IS DISMISSED.
Footnotes
[1] The student's eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[2] SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district.
[3] The hearing record contains multiple duplicative exhibits. For purposes of this decision, only district exhibits are cited in instances where both a parent and district exhibit are identical in content. The district's exhibits appear to be of higher clarity and legibility in the certified hearing record submitted to the Office of State Review. The IHO is reminded that it is his responsibility to exclude evidence that he determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).
[4] Although the parent asserted specific challenges to only the May 2024 IEP, the parent generally claimed that the district failed to offer the student a FAPE for the 2023-24 and 2024-25 school years by failing to recommend 10 periods per week of SETSS in addition to the recommended 12:1+1 special class and related services (Parent Ex. A at pp. 1-2).
[5] The IHO's decision appears to include extraneous language that does not apply to this matter. Overall, review of the decision in its entirety demonstrates that the IHO determined that the district offered the student a FAPE for the 12-month, 2023-24 and 2024-25 school years and denied the parent her requested relief (IHO Decision at pp. 1, 5-7, 10; but see p. 5). The parent's claims related to factual errors committed by the IHO in his decision are discussed below.
[6] The parent has included a proposed exhibit with her request for review and requests that it be considered as additional evidence. Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of the Dep't of Educ., Appeal No. 08-024; Application of a Student with a Disability, Appeal No. 08-003; Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 06-040; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068). As additional evidence, the parent submitted a December 19, 2022 interim order on pendency, which was issued in a prior matter. The IHO in this matter issued an interim order on pendency on January 17, 2025, which determined the student's pendency entitlement and ordered that the pendency program was retroactive to the date of the filing of the due process complaint notice (IHO Ex. II at p. 1). The parent's proposed exhibit was available at the time of the impartial hearing, is not relevant to this matter and is not necessary to render a decision in this matter. Thus, I decline to accept the parent's proposed additional evidence and will not consider it further.
[7] Although styled as an answer and cross-appeal, review of the document as a whole shows that it does not contain a cross-appeal in that it does not identify any precise rulings, failures to rule, or refusals to rule by the IHO of which the district seeks review (see 8 NYCRR 279.8 [c][2]). In its request for relief, the district asks that the IHO's award be annulled, however the IHO denied all of the parent's requested relief.
[8] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[9] According to the May 2023 IEP, the May CSE considered a 12:1+1 special class placement in a community school, which was rejected as it was determined that the student required a more structured learning environment, and an 8:1+1 special class in a specialized school, which was rejected as being too restrictive (Dist. Ex. 2 at p. 26).