Application of a Student with a Disability

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-315

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:

The Cuddy Law Firm, PLLC, attorneys for petitioner, by Kamal Taneja, Esq.

Liz Vladeck, General Counsel, attorneys for respondent, by Irene Dimoh, 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 denied her request to be reimbursed for her daughter's tuition at the Manhattan Star Academy (MSA) for the 2024-25 school year.  Respondent (the district) cross-appeals from that portion of the IHO's decision which found that equitable considerations would have weighed in favor of the parent's requested relief.  The appeal must be sustained.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]).  First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]).  An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]).  The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]).  A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]).  The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4).  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 student has been the subject of a prior administrative proceeding regarding the 2020-21 school year (see Application of a Student with a Disability, Appeal No. 21-201).  Accordingly, the parties' familiarity with her educational history and the prior due process proceeding is presumed and the details thereof will not be recited unless relevant to the issues in this matter.

Briefly, the student presents with significant delays across all domains including, but not limited to, expressive and receptive language, cognitive, social/emotional, academic, gross and fine motor, activities of daily living (ADLs), and pragmatic skills (see Parent Ex. D; Dist. Ex. 1 at pp. 1-16).  She has received diagnoses of intellectual disability, moderate; attention deficit hyperactivity disorder (ADHD), predominantly inattentive presentation; and autism spectrum disorder, level 2, with accompanying intellectual and language impairment (Parent Ex. D at p. 10).  As a young child, the student received services through the early intervention program (EIP), which consisted of applied behavior analysis (ABA) instruction, and later she received services through the committee on preschool special education (CPSE) (Parent Ex. F at p. 2).  The student has attended MSA since the end of her kindergarten year in 2018 (Parent Exs. D at p. 2; V ¶ 5).^[1]

On February 12, 2024, a CSE convened and found the student eligible for special education services as a student with autism (see generally Dist. Ex. 1).  The CSE recommended that the student attend a 12-month program in an 8:1+1 special class with adapted physical education in a district specialized school (id. at pp. 29, 31, 35-37).  In addition, the February 2024 CSE recommended that the student receive the following related services: one 30-minute session per week of individual counseling services, one 30-minute session per week of group counseling services, three 30-minute sessions per week of individual occupational therapy (OT), two 30-minute sessions per week of individual physical therapy (PT), three 30-minute sessions per week of individual speech-language therapy, and one 30-minute session per week of group speech-language therapy (id. at pp. 29-30, 36).  The CSE recommended one 60-minute session per month of individual/group parent counseling and training (id. at p. 30).  The February 2024 CSE also recommended a group paraprofessional for the student's health and ADLs (id. at p. 30).

On April 4, 2024, the district provided the parent with prior written notice, summarizing the recommendations contained in the February 2024 IEP, as well as a school location letter, notifying the parent of the particular school location to which the district assigned the student to attend (see Dist. Exs. 2; 3).

On May 16, 2024, the parent electronically signed an enrollment contract with MSA for the 12-month 2024-25 school year (see Parent Ex. O).

Next, on June 14, 2024, the parent notified the district of her disagreement with the February 2024 CSE's recommendations, her difficulties arranging a tour of the assigned public school site, and her intent to unilaterally place the student at MSA for the 2024-25 school year and seek public funding (see Parent Ex. C).

A. Due Process Complaint Notice

In a due process complaint notice dated December 16, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (see generally Parent Ex. A).  The parent requested pendency services pursuant to a prior unappealed IHO decision dated October 10, 2023 (id. at p. 2).

In connection with the February 2024 CSE meeting, the parent asserted that the CSE failed to consider certain independent educational evaluations (IEEs) of the student that had been conducted in 2022, including a neuropsychological evaluation, ABA skills assessment, functional behavioral assessment (FBA) with behavioral intervention plan (BIP), and assistive technology evaluation (Parent Ex. A at p. 4).  The parent also alleged that the district failed to evaluate the student in all areas of need and failed to conduct a vocational assessment or an FBA notwithstanding that the student's "history of maladaptive behaviors" impeded her ability to learn (id. at pp. 4-6).  The parent argued that the February 2024 CSE failed to recommend programming for the student that included "research-based instructional methodologies" such as ABA instruction (id. at pp. 4, 6).  The parent further claimed that the CSE did not recommend appropriate supports and related services to address the student's sensory needs and that the CSE failed to develop annual goals for the use of "ABA teaching methodologies" (id. at pp. 4, 6-7).  The parent also argued that the CSE failed to recommend an assistive technology device for the student despite the recommendations therefore in the 2022 assistive technology evaluation (id. at pp. 5-6).  The parent argued that she was not provided with the opportunity to tour the assigned public school site but upon her own research determined that the school would not be able to implement the February 2024 IEP (id. at pp. 4-5, 7-8).  Further, the parent claimed that she was deprived of meaningful participation in the CSE process (id. at p. 6).

Next, the parent argued that MSA was appropriate for the student because it offered small classes with small student-to-teacher ratios (Parent Ex. A at p. 8).  She argued that MSA offered multisensory instruction and behavioral supports to address the student's maladaptive behaviors (id.).  Moreover, the parent alleged that equitable considerations weighed in favor of her requested relief as she timely submitted ten-day notice, participated in CSE meetings, and consented to evaluations to be conducted by the district (id.).

As relief, the parent requested that the district be directed to fund the student's 12-month tuition at MSA for the 2024-25 school year, including transportation costs and reimbursement for breakfast and lunch costs expended by the parent (Parent Ex. A at p. 9).^[2]

B. Impartial Hearing Officer Decision

After a prehearing conference on January 17, 2025, an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on March 7, 2025 (Tr. pp. 1-42).  On January 29, 2025, the IHO issued an order on pendency, finding the student's pendency was based upon an unappealed IHO decision dated October 10, 2023, and consisted of a 12-month program at MSA, with temperature-controlled transportation and limited travel time, and reimbursement up to $100.00 per month for meals (see Interim IHO Decision).^[3]

In a decision dated April 22, 2025, the IHO found that the district met its burden to demonstrate that it offered the student a FAPE for the 2024-25 school year, that the parent failed to establish the appropriateness of MSA, and, if relief had been warranted, that there was no basis in the hearing record to deny full tuition reimbursement (IHO Decision at pp. 29-32).  The IHO found that the February 2024 IEP was "procedurally and substantively appropriate" (id. at p. 29).  The IHO found that the CSE considered sufficient evaluative information and, although the CSE did not review the private neuropsychological, ABA, FBA, and assistive technology evaluations from 2022, it was not clear that the parent provided those evaluations to the district, the district was not required to review all evaluative information from the parent, and, in any event, the information considered by the CSE was "largely consistent" with these evaluations and the CSE would not have been required to adopt the particular recommendations (id. at p. 30).  In particular, the IHO noted that the "largest recommendations from those reports that were not incorporated into the IEP" such as ABA methodology and assistive technology, were contradicted by other evidence suggesting the student was making progress without such support (id.).  Additionally, the IHO found that there was no requirement that a specific methodology be included in the IEP and that there was not a consensus that the student needed ABA (id.).  With respect to supports for the student's behavioral needs, the IHO indicated that information before the CSE did not indicate that the student required a BIP and that the IEP incorporated several supports, services and goals that would address the student's needs in this area (id.).  The IHO also found that an assistive technology device was not required, and the "use of available technology" was included within the management needs (id.).  Further, the IHO found no evidence in the hearing record that the student required 1:1 instruction and, in any event, that the management needs in the IEP provided for the student to receive small group and 1:1 instruction (id.).  The IHO also found that the IEP included support for the student's ADL and executive functioning needs through management needs and annual goals, as well as through the recommendation for a paraprofessional to assist the student with ADL tasks (id.).  The IHO found that the recommendation for an 8:1+1 special class was similar to the programming the student received at MSA and was the least restrictive environment (LRE) for the student (id. at p. 31).  The IHO also found that the district's failure to conduct a vocational assessment was not a procedural violation because the student had not reached the minimum age for such assessment (id.).  Furthermore, the IHO found that, although the district should have responded to the parent regarding the assigned school, it did not rise to the level of a denial of a FAPE for the 2024-25 school year, as the parent did not have a right to participate in the school location selection or to visit the assigned school and, in any event, the parent "was going to reject the IEP based on [her] opinion regarding the appropriateness of its recommendations rather than the proposed school location" (id.).^[4]

Next, in connection with the unilateral placement, the IHO initially found that MSA was an appropriate placement as it offered small classes and individualized instruction together with related services to meet the student's needs (IHO Decision at p. 32).  The IHO also found evidence in the hearing record that the student made progress at MSA (id.).  However, the IHO stated that, if she gave credence to the parent's allegations that the district's recommended program was not appropriate because it lacked 1:1 ABA instruction, vocational/transition services, an FBA/BIP, assistive technology, and sensory supports, then the unilateral placement would also not be appropriate for not providing those same services, which thereby defeated the parent's claim that MSA was appropriate (id.).  Lastly, the IHO stated that, if relief were warranted, there would be no basis to deny full tuition based upon equitable considerations (id.).  Based on all of the foregoing, the IHO dismissed the parent's claims with prejudice (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding that the district offered the student a FAPE for the 2024-25 school year and in failing to award direct funding of the student's MSA tuition.  The parent submits additional evidence with her appeal and requests that it be considered.  At the outset, the parent requests that the IHO receive "training on the regulatory requirements" for issuing decisions based on the parent's allegations that the IHO ignored and misrepresented facts and evidence and ignored the fact that the district failed to offer any defense to the parent's claims.  The parent also argues that the IHO improperly shifted the burden of proof to her to establish that the district denied the student a FAPE.  The parent argues that the district failed to present any witnesses and did not cross-examine the parent's witnesses.

Additionally, the parent asserts that the IHO erred in finding that the CSE did not receive the 2022 IEEs and was not required to consider them, that the CSE was not required to include specific methodologies on the IEP, that the student did not require assistive technology, that the student did not require an ABA program, and that the parent did not have the right to participate in the selection of the assigned school for the student.  Further, the parent alleges that the district failed to present evidence that the assigned public school could implement the student's IEP.  The parent argues that the IHO failed to credit the parent's allegations that the February 2024 IEP was procedurally and substantively inappropriate.  The parent acknowledges that the IEP included ADL support for the student within the management needs but argues that it failed to recommend services to address the student's ADL needs.

Next, the parent asserts that the IHO erred in concluding that MSA was not an appropriate placement for the student and in denying reimbursement for the student's meals at MSA.  As relief, the parent requests funding of the student's MSA tuition for the 2024-25 school year and reimbursement to the parent for the costs of the student's meals.  Lastly, the parent requests a vocational assessment of the student.

In an answer and cross-appeal, the district denies the material allegations contained in the request for review.  The district argues that the parent's assertions that the IHO's decision was contrary to the evidence in the hearing are without merit and the additional evidence submitted by the parent should not be considered.  The district seeks affirmance of the IHO's findings that it offered the student a FAPE and that the unilateral placement at MSA was not appropriate.  The district cross-appeals the IHO's finding on equitable considerations, arguing that the parent sent her ten-day notice to the wrong CSE office, which warrants either a "complete bar or substantial reduction" to any award of tuition.

The parent submits a reply and answer to the district's answer and cross-appeal.

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.  After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).  "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404).  The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).  Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).^[5]

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

VI. Discussion

A. Preliminary Matter

1. Burden of Proof and Credibility

Turning to the parent's allegations regarding the burden of proof, under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer v. Weast, 546 U.S. 49, 59-62 [2005] [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]).  However, under State law, the burden of proof has been placed on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85).  Ordinarily, however, which party bore the burden of persuasion in the impartial hearing becomes relevant only if the case is one of those "very few" in which the evidence is equipoise (Schaffer, 546 U.S. at 58; Reyes v. New York City Dep't of Educ., 760 F.3d 211, 219  [2d Cir. 2014]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 225 n.3 [2d Cir. 2012]; T.B. v. Haverstraw-Stony Point Cent. Sch. Dist., 933 F. Supp. 2d 554, 565 n.6 [S.D.N.Y. 2013]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *5 [S.D.N.Y. Mar. 19, 2013]; see F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 4 [2d Cir. Jan. 8, 2014]).

In Endrew F., the Supreme Court held that the "reviewing court may fairly expect [school] authorities . . . to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances"(580 U.S. at 404).  While the district's burden does not require that the district call witnesses, it does require the district to defend its recommendations and provide evidence that explains such recommendations.  If the district intends to rest its case on documentary evidence alone, the district should offer into evidence all documentation pertaining to the evaluation of the student and the CSE's recommendations, including prior written notices (34 CFR 300.503[a]; 8 NYCRR 200.5[a]; see also L.O. v. New York City Dep't of Educ., 822 F.3d 95, 110-11 [2d Cir. 2016] [discussing the consequences of a CSE's failure to adequately document evaluative data, including that reviewing authorities might be left to speculate as to how the CSE formulated the student's IEP]).

Here, the parent argues that the IHO improperly shifted the burden of proof to the parent to demonstrate that the district failed to provide a FAPE.  To support her argument, the parent states that the district offered no witnesses, did not cross-examine the parent's witnesses, and failed to present any evidence to refute the parent's evidentiary submission, which consisted of program recommendations set forth in the IEEs.  The parent further asserts that the IHO requires additional training because the IHO ignored or misrepresented key evidence and made findings outside the hearing record.

In her decision, the IHO correctly noted the legal standard placing the burden on the district (IHO Decision at p. 24).  When analyzing whether the district offered the student a FAPE, the IHO addressed the lack of district witnesses stating, "[a]lthough it would be better if the [district] offered witness testimony to support its case, this is not one of the rare cases in which the evidence is equipoise" (id. at p. 29).  The IHO concluded that there was sufficient documentary evidence in the hearing record, including an IEP, prior written notice, and evaluative information upon which the CSE based its recommendations to find that the district met its burden to demonstrate that it offered the student a FAPE (id. at pp. 29-30).

Contrary to the parent's contention, the IHO's reliance on the documentary evidence, without requiring the district to present witness testimony, did not amount to a shifting of the burden of proof (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"]).  There is no procedural requirement under the IDEA, State law, or case law that obligates a district to present testimonial evidence or cross examine witnesses at the impartial hearing in order to meet its burden of proof, so long as the documentary submissions adequately provide a cogent and responsive explanation for the recommendations in the IEP in the context of the disputed issues (Application of a Student with a Disability, Appeal No. 25-158; Application of a Student with a Disability, Appeal No. 25-125; see M.B. v. New York City Dep't of Educ., 2017 WL 384352, at *6 [S.D.N.Y. Jan. 25, 2017] [noting the lack of case law cited as to why it would be necessary for the district to present testimony from a teacher]).  As noted by the IHO, the district presented the February 2024 IEP, the prior written notice, which referenced the specific assessments reviewed by the February 2024 CSE to develop the IEP, and the evaluative materials and MSA progress report that were used by the CSE (see generally Dist. Exs. 1; 2; 4-8).  The IHO also made findings on the issues presented in the parent's due process complaint notice regarding the appropriateness of the district's recommended program based on the hearing record (see IHO Decision at pp. 30-31).  While the parent's claims are discussed in greater detail below, the parent's disagreements with the conclusions reached by the IHO do not provide a basis for a finding that the IHO shifted the burden of proof or that the IHO requires additional training.

Next, turning to the parent's claim that the IHO erred in not crediting her testimony, 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).  In this instance, the IHO did not make a particular finding regarding the parent's credibility but, instead, weighed the evidence presented.

The statement to which the parent points in asserting that the IHO did not credit her testimony—i.e., that the IHO did "not credit the Parent's allegations" (IHO Decision at p. 29; see Req. for Rev. ¶ 10)—reflects the IHO's determination on the merits of the parent's claims based on a weighing of the evidence and not a finding about the believability of the parent's testimony.  To the extent that the parent agreed or disagreed with the IHO's findings of fact, it is based on the weight accorded to the evidence, not specific findings by the IHO that one or more of the witnesses specifically failed to offer credible 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]).  Therefore, to the extent that the parent argues that the IHO's decision regarding a FAPE must be reversed because it was based on the lack of the parent's credibility, the parent's argument is without merit.

2. 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]).  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]).

Here, the parent does not appeal the following IHO findings: that there was no evidence in the hearing record that the student required a 1:1 instructional program; that there was no evidence in the hearing record that the student required sensory supports; that a BIP was not necessary for the student; that there were behavioral supports in the management needs, related services, and annual goals for the student; that the statutory requirement for a vocational assessment was not warranted because of the student's age at the time of the CSE meeting; and that the student fit within the statutory definition for an 8:1+1 special class.  Accordingly, these findings have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

B. February 2024 CSE and IEP

1. Student's Needs

A review of the student's needs as known to the February 2024 CSE provides context for discussion of the issues to be resolved.

The February 2024 CSE relied on several evaluations to describe the student's performance levels and develop programming recommendations (see Dist. Exs. 1-2).  In particular, the February 2024 CSE considered an educational evaluation report from February 18, 2023; a private speech-language evaluation from June 14, 2022; a private OT evaluation from April 22, 2022; a private PT evaluation from April 21, 2022; and an MSA progress report for the period of September 2023 to January 2024 (January 2024 MSA progress report) (see generally Dist. Exs. 2, 4-8).^[6]  Additionally, the parent, as well as a related service provider and teacher from MSA, participated in the February 2024 CSE meeting (Dist. Ex. 1 at pp. 38-39).

The February 2024 IEP included descriptions from the January 2024 MSA progress report indicating that, in reading, the student was working on her ability to make inferences based on multi-media text, noting that she was able to make inferences and provide evidence with minimal teacher scaffolding when the information was presented as an image or video in small groups with visually supported multiple choice, inferential, how or why questions about feelings or motivation (Dist. Ex. 1 at p. 4).  Additionally, when presented with a text of five to ten sentences, the student could answer visually supported multiple-choice questions with 60 percent accuracy and could identify the clue words in the text provided for the inference with moderate teacher scaffolding and supports (id.).  The IEP further reported that the student was more successful in a small group with individualized support due to her attention difficulties and low frustration tolerance with challenging tasks (id.).

With regard to writing, the February 2024 IEP reported information from the January 2024 MSA progress report that the student was working on identifying the main idea and writing corresponding details and that, with the use of a graphic organizer, teacher modeling, adult dictation, and small group writing support, she could write up to two "on-topic" details about a main idea (Dist. Ex. 1 at p. 5).  The student was able to identify personal details pertaining to different topics such as family, favorite food, and favorite activity; could use appropriate spacing and letter sizing; and could accurately copy from a close visual model of her ideas which were dictated to an adult (id.).  The IEP reported that the student continued to have difficulty "tolerating the task of generating ideas for what to write," would often become "frustrated that she d[id] not know the 'correct' answer," and would be unable to write more than two sentences due to her frustration tolerance (id.).

In math, the February 2024 IEP reported from the January 2024 MSA progress report that the student was working on basic addition and subtraction skills within 100 as well as counting missed denominations of bills, specifically indicating that when regulated the student could count money given to her in two denominations (i.e., one and five or one and ten dollar bills) with 100 percent accuracy (Dist. Ex. 1 at p. 5).  Additionally, when given combinations of ten and five dollar bills not organized by value, the student could separate the bills and count the ten dollar bills but had difficulty including the five dollar bills in her counting (id.).

With regard to the student's ADLs, the February 2024 IEP included information from the January 2024 MSA progress report that the student had made some progress in "her ability to develop proper bathroom procedures" but required up to three adult prompts to exit the bathroom in a timely manner (Dist. Ex. 1 at p. 5).  The IEP reported that the student would respond to adult direction to wash her hands appropriately with less frustration than she previously exhibited (id. at p. 6).  However, the IEP further reported that the student had been experiencing an increase in emotional dysregulation and decrease in frustration tolerance and would often use the bathroom as a means of escape (id.).  It was reported that the student could independently get her lunch, clean up her lunch, and pack, unpack, and organize personal areas when emotionally regulated (id.).  The IEP stated that she needed help to heat her lunch but could indicate when it was too hot or too cold (id.).  Finally, the IEP indicated that the student could independently write her address without a visual aid as well as different pieces of personal information (i.e., phone number, zip code, street address) (id. at p. 7).

The February 2024 IEP included information from a June 2022 speech-language evaluation, which indicated that the student presented with "severe delays in many areas, and her yielded age equivalents [we]re significantly below her chronological age" (Dist. Ex. 1 at p. 2).  Based on administration of the Clinical Evaluation of Language Fundamentals - Fifth Edition (CELF-5), this included language comprehension and listening, oral language expression, vocabulary and word knowledge, and memory dependent tasks (id.).  The student exhibited significant difficulty with receptive language as evidenced by difficulty following directions and recalling sentences of varying length; however, she demonstrated increased accuracy when provided visual supports along with verbal directions (id.).  The student exhibited syntactical difficulties when presented with tasks to formulate compound and complex sentences with grammatical constraints as well as when recalling sentences with complex syntactical structures (id.).  The February 2024 IEP noted that the student had significant difficulty formulating sentences that were syntactically and semantically appropriate, explaining that, even though she had conversations with familiar partners and could produce complex sentences, her expressive language was marked by short sentences that were repetitive in nature (id. at pp. 2-3).  She would frequently respond to questions in brief three-to-four-word phrases and use direct quotes from television shows and at times her intonation would be flat and other times exaggerated (id. at p. 3).  The IEP reported the results from an administration of the Comprehensive Test of Phonological Processing (CTOPP) which indicated "profound weakness in the areas of sound and syllable isolation, deletion, blending, segmenting, and manipulation" (id.).  With regard to pragmatic skills, the IEP reported that the student exhibited significant delays, specifically indicating that the student struggled with introducing herself, responding to an introduction, maintaining a conversation, and ending a conversation (id.).  Further, the student benefitted from verbal cues and prompts to increase attention (id.).

The February 2024 IEP contained information reported from the January 2024 MSA progress report, which indicated that speech-language therapy had focused on receptive, expressive, and pragmatic language skills as well as executive functioning skills (Dist. Ex. 1 at p. 6).  Additionally, the IEP reported that the student's performance varied significantly from session to session due to her increased difficulty with social/emotional regulation and that she exhibited "behaviors during which she shuts down" which had prevented her from making significant progress during the academic reporting period (id.).  The February 2024 IEP further reported on progress the student made toward her annual goals including making inferences, demonstrating expected body language, answering "how" questions, and identifying main idea and supporting details (id. at pp. 6-8).

Regarding social/emotional development, the February 2024 IEP reported from the January 2024 MSA progress report that the student had made progress accurately identifying feelings and coping strategies and indicated that, in moments of intense frustration, she had spontaneously stated her feelings (i.e. frustrated, angry, sad) and was implementing coping skills with prompting such as drink water, play with a fidget or preferred doll, and having alone time (Dist. Ex. 1 at p. 8).  The IEP further reported that the student was working on developing appropriate emotional responses, specifying that, when she was presented with a frustrating situation, she was encouraged to work through it by thinking of the size of the problem and if her reaction matched the size (id.).  The student benefitted from maximum prompting to determine the size of the problem and implement an appropriate response (id.).  Additionally, the student had been working on accepting the unknown and being denied access to preferred items, specifically noting that she could identify feelings and coping strategies when prompted and also spontaneously at given times (id. at p. 9).

With regard to physical development, the February 2024 IEP summarized information from an April 2022 PT evaluation, which indicated that the student presented with deficits in many areas of gross motor functioning including posture, ambulation, coordination, strength and endurance (Dist. Ex. 1 at p. 1).  The results from an administration of the Bruininks-Oseretsky Test of Motor Proficiency showed below average scores in bilateral coordination and running speed, as well as in strength (id.).  The scores from the Pediatric Evaluation of Disability Index "demonstrate[d] that her functional limitations [we]re inhibiting her ability to fully engage in her community and school environments" (id.).  The IEP stated that, according to the January 2024 MSA progress report, PT had focused on gait training, postural alignment, motor planning, and spatial awareness, and noted that the student was demonstrating inconsistent performance in part related to her variable level of emotional regulation and frustration tolerance (id. at p. 12).  The February 2024 IEP reported that the student's annual goals had focused on gait mechanics, motor planning and spatial awareness and community navigation (id. at pp. 12-13).

The February 2024 IEP summarized results of an April 2022 OT evaluation, which indicated that the student presented with decreased strength in her upper extremities and core, retained reflexes, and deficits in fine manual control and manual coordination affecting fine motor precision (Dist. Ex. 1 at p. 3).  Additionally, the student demonstrated deficits in bilateral and gross motor skills, visual motor skills, motor coordination, executive functioning, and self-help skills (id.).  The evaluation noted that, while the student was able to grasp various objects and utensils, her grasp quality was compromised by decreased manual dexterity, in-hand manipulation, motor planning, and hand weakness, which affected her ability to complete visual motor activities, writing, fine motor activities, and ADLs within the school environment (id.).  Further, the IEP indicated that the student demonstrated significant deficits in regulation and sensory processing, which affected her ability to move through more challenging activities without significant support (id.).  With regard to the student's executive function skills, the IEP indicated that concerns were noted in the student's ability to resist impulses, "be aware" of her functioning in social settings, adjust to changes, sustain working memory, plan and organize her approach to problem solving, "be appropriately cautious" in her approach to tasks and check for mistakes and to organize her materials and belongings (id. at pp. 3-4).

The February 2024 IEP reported from the January 2024 MSA progress report that OT sessions had focused on emotional regulation, visual motor/bilateral coordination, executive functioning, sequencing, motor planning, body awareness, and money management skills in order to improve her ability to participate in classroom group instruction, engage in writing and keyboarding assignments, and complete ADLs (Dist. Ex. 1 at p. 10).  The February 2024 IEP noted that the student highly benefited from demonstration and side by side practice as well as minimal to moderate verbal and tactile support when donning and doffing shoes and socks (id.).  The IEP further indicated that the student was showing improvement doffing clothes during dressing activities and noted that OT intervention would continue to focus on improving attention and coordination to more efficiently motor plan upper and lower body dressing related activities (id. at pp. 11-12).

2. Consideration of Evaluative Information

The parent argues that the IHO erred in holding that the district was not obligated to review certain IEEs; specifically,  an April 2022 neuropsychological evaluation, an April 24, 2022 ABA skills assessment report, and a 2022 assistive technology evaluation.^[7]  Further, the parent argues that the IHO erred in finding that the district did not receive the above-listed IEEs and the parent requests the consideration of additional evidence submitted with her request for review to support her contention that the February 2024 CSE was aware of the IEEs.  The district counters that the February 2024 CSE did not receive the IEEs.  According to the district, the IEEs were not submitted to the correct CSE (CSE 10) and the parent was responsible for ensuring that they were submitted to CSE 10.

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]).  A CSE must consider independent educational evaluations whether obtained at public or private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]).  However, consideration does not require substantive discussion, or that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight or adopt their recommendations (Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 753 [2d Cir. 2018], citing T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993]; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004] [noting that even if a district relies on a privately obtained evaluation to determine a student's levels of functional performance, it need not adopt wholesale the ultimate recommendations made by the private evaluator], aff'd, 142 Fed. App'x 9 [2d Cir. July 25, 2005]; see Michael P. v. Dep't of Educ., State of Hawaii, 656 F.3d 1057, 1066 n.9 [9th Cir. 2011]; K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 805-06 [8th Cir. 2011]; Evans v. Dist. No. 17, 841 F.2d 824, 830 [8th Cir. 1988]; James D. v. Bd. of Educ. of Aptakisic-Tripp Community Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 818 [N.D. Ill. 2009]).

In this matter, upon a review of the additional evidence and parties' arguments, it continues to be unclear whether the district received the 2022 neuropsychological evaluation, ABA skills assessment, and assistive technology evaluation; however, it is undisputed by the parties that the CSE did not review these evaluations preceding or at the time of the February 2024 CSE meeting (Answer & Cr.-Appeal ¶ 18; Dist. Ex. 2 at p. 4).^[8]  Assuming for the sake of argument that the February 2024 CSE's failure to review these 2022 IEEs resulted in a procedural deficiency, it must next be determined whether this procedural violation impeded the student's right to a FAPE, significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (see 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; see also Luo v. Baldwin Union Free Sch. Dist., 2012 WL 728173, at *4-*5 [E.D.N.Y. Mar. 5, 2012]; Davis v. Wappingers Cent. Sch. Dist., 2011 WL 2164009, at *2 [2d Cir. 2011]).

The parent does not dispute the present levels of performance or the description of the student's needs in the February 2024 IEP (see generally Req. for Rev.).^[9]  As reflected in the IEP, the present levels of performance were drawn from the 2022 speech-language therapy, OT, and PT evaluations, as well as a report from MSA, together with input from a related service provider, a teacher at MSA, and the parent (see Dist. Ex. 1 at pp. 1-14, 38-39).^[10]

Moreover, the hearing record supports the IHO's conclusion that the February 2024 CSE considered information similar to what was contained in the April 2022 neuropsychological evaluation and ABA skills assessment (see IHO Decision at p. 30).  Consistent with information provided in the February 2024 IEP's present levels of performance, the April 2022 neuropsychological evaluation indicated that the student presented with impairments in her cognitive, attentional, graphomotor, receptive and expressive language, adaptive functioning, academic, and social/emotional skills (compare Parent Ex. D, with Dist. Ex 1 at pp. 1-17).  Specifically, the April 2022 neuropsychological evaluation indicated that the student had a low frustration tolerance, "trigger[ed] by any indication that she had made a mistake" (Parent Ex. D at p. 9).  Additionally, the evaluator indicated that the student had a long history of delayed speech, echolalia, stereotyped speech, problems initiating interactions with peers, poorly modulated eye contact, difficulty engaging in pretend play, and problems developing friendships (id. at p. 10).  The evaluator further indicated that the student became emotionally dysregulated at times "when she d[id] not know how to do something or if she ha[d] become aware that she ha[d] made a mistake" (id.).  Finally, the April 2022 neuropsychological evaluation reported that the student exhibited difficulty in reading, writing and mathematics (id. at pp. 7-8).

Furthermore, several recommendations similar to those contained in the neuropsychological evaluation were included in the February 2024 IEP including 12-month services, scaffolding, multisensory instruction, social learning and structured activities to develop socialization skills, positive reinforcement, visual schedules and aids, graphic organizers, word lists, sentence starters, counseling services, parent counseling and training, 1:1 speech-language therapy three times per week, OT three times per week, PT two times per week, and special transportation services (compare Parent Ex. D at pp. 11-12, with Dist. Ex. 1 at pp. 14-16, 29-31, 34).  Additionally, the neuropsychological evaluation recommended a classroom with no more than eight students and a 1:1 paraprofessional, and, similarly, the February 2024 CSE recommended an 8:1+1 special class with group paraprofessional for the student (Parent Ex. D at p. 11; Dist. Ex. 1 at p. 29).

Similarly, the April 2022 ABA skills assessment reported information consistent with the February 2024 IEP's present levels of performance, including that the student exhibited strengths in a variety of skills areas and that she demonstrated a "large discrepancy between language capabilities and learning patterns and self-direction skills" specifically noting that she was dependent on verbal prompting to complete non-preferred subjects in school (compare Parent Ex. F at p. 21, with Dist. Ex. 1 at pp. 1-14).  Furthermore, several recommendations from the ABA skills assessment are similar to those included in the IEP, including small group and 1:1 instruction, a program that targeted a "wide variety of skills" such as communication, academics, social, listening and responding, play and leisure, and independence skills, as well as ongoing parent training (compare Parent Ex. F at pp. 21-22, with Dist. Ex. 1 at pp. 1-30).

Despite some similar recommendations, the parent argues that the February 2024 IEP did not reflect recommendations from the April 2022 neuropsychological evaluation and ABA skills assessment for "research based methodologies" and assistive technology, thereby rendering the IEP substantively inappropriate.  It is to those allegations that I now turn.

3. Methodology

Generally, an IEP is not required to specify the methodologies used with a student and the precise teaching methodologies to be used by a student's teacher are usually a matter to be left to the teacher's discretion—absent evidence that a specific methodology is necessary (Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 [2d Cir. Oct. 29, 2014]; A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 [2d Cir. July 29, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 192-94; M.H., 685 F.3d at 257).  As long as any methodologies referenced in a student's IEP are "appropriate to the [student's] needs," the omission of a particular methodology is not necessarily a procedural violation (R.B., 589 Fed. App'x at 576 [upholding an IEP when there was no evidence that the student "could not make progress with another methodology"], citing 34 CFR 300.39[a][3] and R.E., 694 F.3d at 192-94).  Indeed, a CSE should take care to avoid restricting school district teachers and providers to using only the specific methodologies listed in a student's IEP unless the CSE believes such a restriction is necessary in order to provide the student a FAPE.  However, when the use of a specific methodology is required for a student to receive an educational benefit, the student's IEP should so indicate (see, e.g., R.E., 694 F.3d at 194 [finding an IEP substantively inadequate where there was "clear consensus" that a student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee" of the use of this methodology]).  If the evaluative materials before the CSE recommend a particular methodology, there are no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member (i.e. school psychologist) to rely on a broader approach by leaving the methodological question to the discretion of the teacher implementing the IEP (A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017]).  The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate the "clear consensus" (R.E., 694 F.3d at 194).

Even if the CSE had considered the April 2022 neuropsychological evaluation and ABA skills assessment, I find insufficient basis in the hearing record to conclude that such information, in addition to the materials considered by the CSE, would have amounted to a clear consensus that the student required ABA in order to receive a FAPE.  There was some evidence that the student benefitted from ABA instruction before the February 2024 CSE, but there was also evidence that MSA employed different methodologies with the student including TEACCH, Floortime, and preventing academic failure (PAF) (Parent Ex. W ¶¶ 17, 42, 44; Dist. Exs. 8 at p. 2; 9 at p. 2).  Additionally, even assuming that the neuropsychological evaluation had been before the CSE, it recommended a specialized school that offered the student "instruction infused with ABA principles" as well as multisensory instruction (Parent Ex. D at p. 11) and did not recommend a program that used ABA exclusively.

Moreover, the January 2025 MSA progress report indicated that ABA methods allowed the "team" to address the student's "problem/inappropriate behaviors" (Dist. Ex. 9 at p. 2).  On that point, the February 2024 IEP incorporated several of the MSA general behavior classroom supports identified in the January 2024 MSA progress report such as strategies to address the student's management needs and as incorporated into the student's related services goals including: use of both a classroom and personalized visual schedule, reminders to implement coping strategies, use of interactive activities and social reinforces for engagement and participation, positive reinforcers, and ensuring complex tasks were broken down into manageable components (Dist. Ex. 1 at pp. 14-16, 26-27; see Dist. Ex. 8).  The IEP's management needs also explicitly stated that the student needed "[s]tructured, multi-sensory lessons" and multisensory materials (Dist. Ex. 1 at p. 15).

Accordingly, I find no "clear consensus" that the student required the specific methodology of ABA to the exclusion of all others considering the other methodologies also used with the student at MSA and the broad phrasing of the recommendation in the neuropsychological evaluation for instruction using "ABA principles" (see N.K.M. v. Rye City Sch. Dist., 2024 WL 4803941, at *14 [S.D.N.Y. Nov. 15, 2024] ["failure to recommend Orton-Gillingham program did not render IEP inadequate where student would receive a multi-sensory approach to reading and other supports"]; C.S. v. Yorktown Cent. Sch. Dist., 2018 WL 1627262, at *27 [S.D.N.Y. Mar. 30, 2018] ["no evidence demonstrating clear consensus that student required Orton-Gillingham instruction where expert recommended only that student have hybrid model for reading that targeted ability to decode, fluency, and reading comprehension"]).

4. Special Factors—Assistive Technology

The parent contends that the IHO erred in finding that the student did not require an assistive technology device.  The parent claims that the June 2022 assistive technology evaluation recommended an assistive technology device for the student's reading and writing at both school and home.  The district argues that the speech-language evaluation did not recommend the use of assistive technology and further, that the student was progressing at MSA without the use of assistive technology. 

Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP.  One of the special factors that a CSE must consider is whether the student "requires assistive technology devices and services, including whether the use of school-purchased assistive technology devices is required to be used in the student's home or in other settings in order for the student to receive a [FAPE]" (8 NYCRR 200.4[d][3][v]; see 20 U.S.C. § 1414[d][3][B][v]; 34 CFR 300.324[a][2][v]; see also Educ. Law § 4401[2][a]).  Federal and State regulations describe an assistive technology device as "any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability" and assistive technology service as "any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device" (34 CFR 300.5, 300.6; 8 NYCRR 200.1[e]; [f]).  The failure to recommend specific assistive technology devices and services rises to the level of a denial of a FAPE only if such devices and services are required for the student to access his educational program (see, e.g., Perez v. Porter, 2025 WL 26071, at *4 [S.D.N.Y. Jan. 3, 2025] ["While assistive technology will almost always be beneficial to a student, 'a school is only required to provide it if the technology is necessary'"], quoting E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *20 [E.D.N.Y. Aug. 19, 2013]; Application of the Bd. of Educ., Appeal No. 13-214; Application of a Student with a Disability, Appeal No. 11-121).

As previously discussed, it is undisputed that the CSE did not review the June 2022 independent assistive technology evaluation during the February 2024 meeting (see Dist. Ex. 1; Dist. Ex. 2 at p. 4).  The February 2024 CSE did not recommend assistive technology, but the IEP did state within the management needs that the student would benefit from "[a]ccess to programmatically available technology" (Dist. Ex. 1 at pp. 14, 17, 30).  In addition, the February 2024 CSE reviewed the January 2024 MSA progress report which indicated that the student did not have an augmentative and alternative communication (AAC) device, assistive technology, or low-tech AAC support (Dist. Ex. 8 at pp. 1, 17, 20).^[11]

The June 2022 assistive technology evaluation was conducted by a speech-language pathologist, virtually through teletherapy, and lasted approximately one hour (Parent Ex. E at pp. 1, 3).  The teletherapy evaluation used screen sharing and remote control, with the student requiring repeated directions, frequent redirection, and verbal cues (id. at p. 3).  The technology trials targeted reading and writing deficits (id.).  It was noted that the student "squinted" during the evaluation and the parent reported that she was going to have the student's vision checked (id. at p. 2).  The parent reported to the speech-language pathologist that the student used an iPad at home and previously used a Macbook Air for remote learning (id. at p. 3).

The speech-language pathologist obtained information from the student's MSA speech-language pathologist who reported that the student did not use assistive technology at MSA and was a "verbal communicator" (Parent Ex. E at pp. 2-3).  The MSA speech-language pathologist also indicated that the student had goals in structured participation, producing four-to-five-word utterances, sharing three details of events, turn-taking, requesting help, improving pragmatics, initiating greetings, and engaging in conversations (id. at p. 2).  The student was also noted to demonstrate better verbal output individually than in class (id.).  The student's cognitive skills were judged to be "within functional limits to utilize and benefit from technology (id. at p. 3).

In terms of reading, during the evaluation, the student identified all uppercase letters, nearly all lowercase, all letter sounds, and read about 50 percent of 10 presented CVC words (Parent Ex. E at p. 4).  Using "Epic! Books," the student followed computer read-alouds, independently navigated pages via remote access, expressed preference for the computer reader, and showed interest in the topic (id.).  The speech-language pathologist recommended Epic! Books to provide the student with access to read-aloud supports via the Web Reader and using the iPad's built-in text-to-speech for reading (id. at pp. 4, 8).  Additionally, the private speech-language pathologist recommended several applications for phonemic awareness including Endless Reader, Reading Raven HD, Homer, Phonics Genius, and Starfall Learn to Read (id. at pp. 4, 9).

With respect to writing, the speech-language pathologist noted that the student needed moderate prompts to write her name and maximal prompting to write the alphabet (Parent Ex. E at p. 5).  The student was able to type with moderate prompts and was able to type her name and a short sentence from a visual model but struggled independently, with no difference between written or typed models (id. at p. 6).  The iPad's speech-to-text was trialed, enabling the student to dictate words, phrases, and sentences, which she used to state her name and her age as well as a "research project" by dictating "grocery store in the Bronx," followed by creating a shopping list first by handwriting and then typing from a visual model (id. at p. 7).  Several applications were recommended for the student's typing and encoding, including Dance Mat Typing, Typing Club, and SnapType Pro (id. at pp. 7, 9).

In summary, the speech-language pathologist concluded that, due to the student's struggles in literacy and writing, she would benefit from multisensory, dynamic instruction that required both software and hardware (Parent Ex. E at p. 8).  The evaluator recommended an iPad (8th or 9th gen, 64GB) with Logitech Rugged Portfolio protective case and keyboard (id.).  Lastly, the speech-language pathologist cautioned that it was important that the student receive foundational reading instruction alongside technology and that tools be taught with direct instruction, so they support rather than "supersede instruction" (id. at p. 8).

The hearing record shows that the February 2024 CSE had before it the January 2024 MSA progress report, which provided more recent information regarding the student's reading and writing skills (see Dist. Ex. 8 at pp. 2-4).  According to the progress report, the student was able to make inferences based on multi-media text and provide evidence for the inference with minimal teacher scaffolding (id. at p. 2).  Additionally, when asked to identify the sentence in the text that provided clues for the inference, the student could identify the clue words with moderate teacher scaffolding and support (id.).  The report indicated that the student could answer visually supported multiple-choice questions after presented with a written text of five-to-ten sentences with 60 percent accuracy (id.).  Finally, the report indicated that the student was working on reading multi-syllabic words with different suffixes as well as complex vowel teams (id.).

In writing, the progress report indicated that the student could write up to two on-topic details about a main idea when given a graphic organizer, teacher modeling adult dictation, and small group writing support (Dist. Ex. 8 at p. 2).  Additionally, the report indicated that the student was able to produce appropriate spacing and letter sizing and could accurately copy from a close visual model of her ideas dictated to an adult (id.).  When given a sentence stem, the student could write a complete sentence; however, she was not able to do so independently, and she required prompting to add details to nonfiction writing (id.).

With regard to keyboarding skills, the January 2024 MSA progress report indicated that the annual goal targeted her ability to use both hands when typing to email, complete personal forms, and online purchasing (Dist. Ex. 8 at p. 10).  The progress report indicated that the student benefited from copying a near point model at eye level but required moderate verbal cues to scan for punctuation and capitalization errors (id.).

In sum, review of the evidence in the hearing record indicates that, although the February 2024 CSE did not recommend assistive technology, the student was accessing her education and making progress at MSA without a specific technology device or service.  Although the February 2024 CSE did not consider the June 2022 assistive technology evaluation, the CSE had before it more current information regarding the student's levels of functioning that indicated the student did not require assistive technology in order to receive educational benefit.  Therefore, there is insufficient basis to disturb the IHO's finding that the lack of a recommendation for assistive technology did not result in a denial of a FAPE to the student.

5. Activities of Daily Living Skills

The parent acknowledged that the February 2024 IEP stated the student's needs pertaining to ADLs and also that it recommended support within the IEP's management needs; however, the parent contends that the CSE failed to recommend "ADL services" which constituted a denial of a FAPE.  The district argues that the student did not require additional support for ADLs because she was progressing at MSA without such support.

Review of the hearing record reveals that the February 2024 IEP described the student's needs in terms of ADLs but also offered support in the recommended related services and annual goals (see Dist. Ex. 1).  The February 2024 IEP stated that the student showed progress in bathroom procedures; for example, without prompts the student spent 5-15 minutes in the bathroom multiple times daily, which was reduced to about 7 minutes with up to three prompts, with the bathroom sometimes used as task escape when dysregulated (id. at pp. 5-6).  The student was further noted to independently manage lunch routines and personal organization when regulated and could accurately write her address and personal information (id. at p. 6).  The February 2024 IEP noted that the student had made "commendable improvement" with her ADL skills (id. at p. 14).

In addition to the management needs addressing the student's ADLs, the February 2024 IEP included an annual goal providing that, with a timer, the student would use the bathroom in a "timely manner with fading adult prompts" to increase her independence (Dist. Ex. 1 at pp. 14-16, 28).  Furthermore, the February 2024 CSE recommended a group paraprofessional for the student's ADLs and health (id. at p. 30).

Accordingly, I find no basis in the hearing record to overturn the IHO's finding that there was significant support in the IEP for the development of the student's ADL skills.

C. Implementation/Assigned School

Turning to the parent's claim that the district failed to respond to her request for a tour of or answer questions about the assigned public school site, the United States Department of Education's Office of Special Education Programs (OSEP) has opined that the IDEA does not provide a general entitlement to parents of students with disabilities or their professional representatives to observe proposed school placement options for their children (Letter to Mamas, 42 IDELR 10 [OSEP 2004]; see G.J. v. Muscogee County Sch. Dist., 668 F.3d 1258, 1267 [11th Cir. 2012] [noting that rather than forbidding or mandating access for parents, "the process contemplates cooperation between parents and school administrators"]; J.B. v. New York City Dep't of Educ., 242 F. Supp. 3d 186, 195 [E.D.N.Y. 2017] [noting that the IDEA does not afford parents a right to visit an assigned school placement before the recommendation is finalized]; J.C. v. New York City Dep't of Educ., 2015 WL 1499389, at *24 n.14 [S.D.N.Y. Mar. 31, 2015] [acknowledging that courts have rejected the argument that parents have a right under the IDEA to visit assigned schools and listing authority], aff'd, 643 Fed. App'x 31 [2d Cir. Mar. 16, 2016]; E.A.M. v. New York City Dep't of Educ., 2012 WL 4571794, at *11 [S.D.N.Y. Sept. 29, 2012] [finding that a district has no obligation to allow a parent to visit an assigned school or proposed classroom before the recommendation is finalized or prior to the school year]; S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *12 [S.D.N.Y. Nov. 9, 2011] [same]).^[12]

On the other hand, there is district court authority indicating that a parent has a right to obtain information about an assigned public school site (see H.L. v. New York City Dep't of Educ., 2019 WL 181307, at *9 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 2015 WL 5564446, at *11-*18 [S.D.N.Y. Sept. 21, 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 2014 WL 2207997, at *14-*16 [S.D.N.Y. May 27, 2014] [holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it]).

Here, on April 4, 2024, the district provided the parent with a school location letter which contained the name and address of the school at which the February 2024 IEP would be implemented for the 2024-25 school year (Dist. Ex. 3 at p. 1).  The school location letter provided the address and telephone number of the school, as well as the name and phone number for a person to contact to advise if the student would "be attending this school" (id.).  The notice further indicated that the parent could arrange a visit to the school by "contact[ing] the person named above for assistance in arranging this visit" (id.).  The parent testified that, upon receipt of the letter, she "immediately contacted the school" to schedule a tour (Parent Ex .V ¶ 28).  She indicated that she attempted to contact the school "numerous times" but would be "put on hold" and then "get disconnected" (id.).  She testified that, eventually, she spoke with "a school representative" who directed her to send an email to the parent coordinator to schedule the school tour (id.).

On May 7, 2024, the parent sent an email to the parent coordinator identified by the school representative and asked for a date to visit the school, noting that the student was "a 12 month student and c[ould] start immediately" (Parent Ex. J; see Parent Ex. V ¶ 28).  The parent did not receive a response (Parent Ex. V ¶ 30).  In her June 14, 2024 10-day notice letter to the district, the parent described her unsuccessful attempts thus far to schedule a tour of the assigned school and informed the district that she had "not been able to obtain necessary information" about the assigned school (Parent Ex. C at p. 2).

In a letter dated July 23, 2024, addressed to two different parent coordinators from the assigned school, the parent again requested a tour and also posed a series of questions about the assigned school (see Parent Ex. K).  In particular, the parent inquired about the availability of a seat for the student in an 8:1+1 special class, the possible disability classifications and ages of other students in the class, the opportunities in the school for interactions with nondisabled peers, the training and responsibilities of the teacher and other staff, methodologies used, the location of the summer portion of the school year, the manner in which related services would be provided, and whether transitional services were available for the teacher (id.).  The parent sent the letter by email to the two parent coordinators from the assigned school on July 26, 2024 (Parent Ex. M) and forwarded the message to the principal of the assigned school on August 6, 2024 (Parent Exs. M; V ¶ 34).  The parent did not receive a response to her letter (Parent Ex. V ¶¶ 33, 35).

Thus, the parent documented several attempts to obtain information about the assigned school (Parent Exs. K-M).  The district does not deny that the school, CSE, or other district staff received the parent's emails and correspondence (except, unconvincingly, with respect to the June 2024 10-day notice letter, discussed below); however, there is no indication in the hearing record that the district ever responded to the parent's attempts to obtain information about the assigned school.^[13]  Moreover, the parent's July 2024 letter outlined information that the parent sought about the assigned school, which was relevant to her ability to assess the school and its capacity to implement the student's IEP (see Parent Ex. K).  Based on the foregoing, this matter is similar to F.B., 2015 WL 5564446, at *11-*18, and C.U., 23 F. Supp. 3d at 227-29, in which the parents attempted to respond to the district's offer to arrange for a school visit but written communications indicated they were repeatedly unable to get assistance or even a response from the district.  Further, given the content of the parent's communications to the district and the type of information sought, this is not an instance where it ultimately "seem[ed] inconsequential to [the p]arent what the school placement was" or had "no impact" on the parent's decision to unilaterally place the student (Rosenberger v. Banks, 2025 WL 2773299, at *4-*5 [S.D.N.Y. Sept. 29, 2025]; see Ambrister v. Banks, 2025 WL 2775936, at *2 [2d Cir. Sept. 30, 2025] [noting the parent in that matter categorically rejected any district specialized school]).

As the district failed to respond to the parent's attempts to obtain relevant and timely information about the assigned school, the district committed a procedural violation that, in this instance, significantly impeded the parent's opportunity to participate in the decision-making process.^[14]

D. Unilateral Placement

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).

The evidence in the hearing record indicates that MSA offers an academic/therapeutic program for students with autism and related disabilities, with small classrooms, high teacher-to-student ratios, and collaborative related services (Parent Exs. N at pp. 2-4; W ¶ 18).  The evidence describes use of ABA, TEACCH, and Floortime as needed per student; staffing that includes a behavior team including a BCBA and behavioral assistant; and provision of regular staff professional development that includes ABA/behavior supports (Parent Exs. N at p. 7; W ¶¶ 17-20).  The BCBA and behavioral assistant provide crisis management, staff training, daily classroom check-ins, and parent workshops (see Parent Ex. R at p. 22).  The program employed universal proactive/reactive strategies including reinforcement, visual schedules, task breakdowns, and function-based responses (e.g., minimizing escape/attention as appropriate) (id.).

For the 2024–25 school year, the student attended a class of nine students (ages 10-12) with one lead teacher, two teaching assistants, and three paraprofessionals assigned to specific students (Parent Ex. W ¶ 28).  According to the MSA IEP and hearing coordinator (MSA coordinator), the student no longer required a dedicated 1:1 paraprofessional due to improved regulation and continued access to counseling and BCBA support during crises (id. ¶ 29).  The student's summer and fall schedules include academic blocks (reading, writing, math), social studies, science, health, social/emotional learning, social skills, community-based instruction, adapted physical education,  and enrichment (art, music, dance), with embedded related services (three 30-minute sessions of speech-language therapy; three 30-minute sessions of OT; one 30-minute session of PT; counseling/art therapy) (Parent Exs. P; Q; W ¶ 31).  Licensed providers delivered the student's services; team meetings and collaboration ensured classroom carryover and coordinated supports; progress reporting took place three times per year, along with frequent home–school communication (Parent Exs. N at pp. 3-4; W ¶¶ 21-22).

The student's programming at MSA included use of multi‑sensory instruction; explicit scaffolding; modeling; graphic organizers; word banks; repeated practice; small-group instruction; multiple verbal prompts; adult proximity in larger groups; visual supports; breaks; teacher wait time; positive reinforcement; and task analysis/breakdown—aligned with the student's cognitive, language, attention, and regulation needs (Parent Ex. W ¶¶ 32, 43).  In addition, to address the student's behavioral needs, MSA implemented strategies and supports identified in a BIP (Parent Ex. G at pp. 13-14).

The hearing record shows that MSA addressed the student's needs and the student made documented progress in the areas of decoding, writing tolerance and independence, math fluency and functional numeracy, self‑regulation, daily living routines, speech/pragmatics, and motor and executive function skills (see generally Parent Exs. R; W ¶¶ 29, 34-35).

The IHO found that MSA was an appropriate placement and that the student made progress at MSA (IHO Decision at p. 32).  The IHO's concerns about the program at MSA not addressing deficiencies the parent identified in the programming recommended by the district in the February 2024 IEP (i.e., lacked 1:1 ABA instruction, vocational/transition services, an FBA/BIP, assistive technology, and sensory supports) are either not borne out by the record or are not determinative given the grounds for a denial of a FAPE discussed above; namely as related to the district's failure to respond to the parent's inquiries about the assigned school (see id.).  In its cross-appeal, the district does not allege any other basis to find that the IHO erred in the initial assessment that MSA was an appropriate unilateral placement.  Accordingly, I find that the evidence in the hearing record supports a finding that MSA offered and implemented specially designed instruction during the 2024–25 school year that was reasonably calculated to address the student's unique needs and resulted in measurable progress across targeted domains.

E. Equitable Considerations

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.  Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).  With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

1. 10-Day Notice

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]).  This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]).  Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

In alleging that the IHO erred in finding that equitable considerations would have weighed in favor of the parent's requested relief, the district argues that the parent sent her 10-day notice to "an incorrect CSE office."  However, review of the parent's notice reflects that it was sent to three different CSE offices ("1," "2," and "10"), and the parent received confirmation from each that the district had received the notice (Parent Ex. C).^[15]  Accordingly, the district's claim in without merit.  The district does not otherwise argue that the parent failed to cooperate with the CSE process or acted unreasonably.  Thus, there is no basis to disturb the IHO's finding that equitable considerations weighed in favor of the parent's requested relief (see IHO Decision at p. 32).

2. School Meals

As a final matter, the parent argues that the IHO erred in finding that reimbursement for school meals was not available under the IDEA.  The district argues that the student's meals were not a part of its obligation to provide a FAPE and, therefore, it should not be required to reimburse the parent.^[16]

To the extent the student's meals, which the parent paid for, could be deemed an aspect of the unilateral placement, they are a segregable portion, which may be omitted from an award of funding if they exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100).  The parent's assertion that "meals" are comparable to transportation, which may constitute a related service under 34 CFR 300.34(a) where necessary for the student to benefit from education, fails principally because there is no evidence in the hearing record that the student had a special nutrition or feeding need that related to her disability (see C.D. v. New York City Dep't of Educ., 2009 WL 400382, at *6 [S.D.N.Y. Feb. 11, 2009] [rejecting the parent's position in that matter that the providing meals to students while they attend a school that meets their unique needs was required because the meals would assist the students in accessing their academic program]; Application of the Bd. of Educ., Appeal No. 05-033 [finding that "[t]he provision of breakfast and lunch at no cost to a student with a disability, unrelated to any special education need, is not required by the IDEA or Article 89 of the Education Law"]).  To the extent the parent alleges that the student is entitled to free lunch because the district provides free meals to all students "as a standard support," such an allegation falls outside the scope of the IDEA and of the undersigned's jurisdiction.  Accordingly, the parent's request for district funding for the student's meals is denied.

VII. Conclusion

Based on the foregoing, the evidence in the hearing record supports findings that the district failed to offer the student a FAPE for the 2024-25 school year, MSA was an appropriate unilateral placement for the student, and equitable considerations support an award of tuition funding but not an award for reimbursement of meals.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision, dated April 22, 2025, is modified by reversing those portions which found that the district offered the student a FAPE for the 2024-25 school year and that the parent did not meet her burden to prove that MSA was an appropriate unilateral placement for the student, and which denied the parent's request for district funding of the student's tuition at MSA for the 2024-25 school year;

IT IS FURTHER ORDERED that the district shall fund the student's tuition at MSA for the 2024-25 school year.

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Footnotes

[1] MSA has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).

[2] The district submitted a due process response generally denying the material allegations together with the April 4, 2024 prior written notice of recommendation, school location letter, and notice to the parent of the student's participation in the New York State alternate assessment (see Dist. Response to Due Process Compl. Not.).

[3] The IHO's certification of the hearing record indicates that the record included pendency emails and the pendency "FOFD" (i.e., findings of fact and decision) (see IHO Record Cert).  Copies of the emails and decision were not filed with the hearing record on appeal as required by State regulation (see 8 NYCRR 200.5[j][5][d][vi]; see 8 NYCRR 279.9[a]).  The Office of State Review endeavors to identify any deficiencies in the hearing record; however, the district is reminded that it carries the responsibility to file a complete copy of the hearing record with the Office of State Review and that failure to do so could result in remedial actions such as striking an answer, dismissing a cross-appeal, or making a finding that the district violated the parent's right to due process (8 NYCRR 279.9[a]-[b]).  Here, as no party is contesting the IHO's interim decision on pendency, I decline to exercise my discretion to take remedial action against the district for the outstanding record deficiency (8 NYCRR 279.9[b]).

[4] The IHO also found that the parent did not meet her burden to demonstrate that the district violated section 504 of the Rehabilitation Act of 1973 ("section 504") (IHO Decision at pp. 31-32).

[5] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.  The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).

[6] The April 4, 2024 prior written notice referenced related service evaluations conducted in February 2024; however, the hearing record does not include related service evaluations bearing that date (see Dist. Ex. 2 at p. 4).  As the IHO noted, it appears that the dates included in the prior written notice were typographical errors as the information included in the IEP reflects the results of the 2022 related service evaluations including references to the correct dates of the assessments (IHO Decision at p. 9; compare Dist. Ex. 1 at pp. 1-4, with Dist. Exs. 5-7).

[7] The parent originally stated that the 2022 FBA and BIP were also not considered by the February 2024 CSE but has not specifically pursued this this allegation on appeal.

[8] Contrary to the parent's contention, a review of the district's special education student information system (SESIS) events log does not specify which evaluations were received by the CSE (see SRO Ex. C at p. 13).

[9] Of note, the April 2022 neuropsychologist administered the Wechsler Individual Achievement Test – Fourth Edition (WIAT-IV) and, in February 2023, the district also apparently administered the WIAT-IV, although there is a note that the WIAT-III was used, this appears to be a typographical mistake (compare Parent Ex. D at pp. 5, 7-8, 16-17, with Dist. Ex. 4 at pp. 1-2).  For both administrations of the tests, the student scored in the extremely low range for math, written language, reading comprehension, and pseudoword decoding (Parent Ex. D at pp. 7-8, 16; Dist. Ex. 4 at pp. 1-2).  Accordingly, both evaluations were consistent in their reporting of the student's academic skills.

[10] A district may rely on information obtained from a student's private school personnel, including sufficiently comprehensive progress reports, in formulating a student's IEP (see C.M. v. New York City Dep't of Educ., 2017 WL 607579, at *15-*17 [S.D.N.Y. Feb. 14, 2017]; D.B. v. New York City Dep't of Educ., 966 F. Supp. 2d 315, 329-31 [S.D.N.Y. 2013]; G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *23 [S.D.N.Y. Mar. 29, 2013]; S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *10 [S.D.N.Y. Nov. 9, 2011]).

[11] Similarly, for the 2024-25 school year, the student did not receive assistive technology or a communication device at MSA (see Dist. Ex. 9 at pp. 1, 15).

[12] Nothing in this decision is intended to discourage districts from offering parents the opportunity to view school or classroom placements, as such opportunities can only foster the collaborative process between parents and districts envisioned by Congress as the "core of the [IDEA]" (Schaffer v. Weast, 546 U.S. 49, 53 [2005], citing Rowley, 458 U.S. at 205-06; see also 20 U.S.C. § 1400[c][5]).

[13] The district argues that the parent did not contact the individual identified in the school location letter (see Dist. Ex. 3); however, the parent did not specify which phone number(s) she called (see Parent Ex. V ¶ 28), and the district did not cross-examine the parent to pursue this question.  Further, the parent's testimony that she was directed by a school representative to contact the parent coordinator of the assigned school is unrebutted (see Parent Ex .V ¶ 28), and the district points to no reason why the parent should not have heeded that direction.  Moreover, even if the parent originally contacted the wrong person, that does not explain why the district did not assist the parent in identifying the right person to contact thereafter.

[14] The IHO correctly noted that a parent's claims relating to an assigned school's capacity to implement an IEP must be "nonspeculative" and allege that the assigned school was "fatally incapable of implementing" the IEP (IHO Decision at p. 31; see M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244-45 [2d Cir. 2015]; Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]).  However, here, the parent's allegations about the assigned school's capacity were speculative due to the district's failure to respond to the parent's efforts to obtain relevant information about the school.  This supports, rather than undermines, the conclusion herein that the parent was denied the opportunity to participate in the decision making process.

[15] It is the district's position that CSE 10 was the correct office (see Answer & Cr.-App. ¶ 9).

[16] The IHO also found that the district did not commit a violation under section 504 of the Rehabilitation Act of 1973 ("section 504"), 29 U.S.C. § 794(a), and, therefore, did not award relief under that statute (IHO Decision at p. 32).  An SRO lacks jurisdiction to consider a parent's challenge to an IHO's failure or refusal to rule on section 504, as an SRO's jurisdiction is limited by State law to matters arising under the IDEA and Article 89 of the Education Law (Educ. Law § 4404[2] [providing that SROs review IHO determinations "relating to the determination of the nature of a child's handicapping condition, selection of an appropriate special education program or service and the failure to provide such program"]).  Courts have also recognized that the Education Law makes no provision for State-level administrative review of IHO decisions with regard to section 504 (see A.M. v. New York City Dep't of Educ., 840 F. Supp. 2d 660, 672 & n.17 [E.D.N.Y. 2012] [noting that "[u]nder New York State education law, the SRO's jurisdiction is limited to matters arising under the IDEA or its state counterpart"], aff'd, 513 Fed. App'x 95 [2d Cir. 2013]; see alsoF.C. v. New York City Dep't of Educ., 2016 WL 8716232, at *11 [S.D.N.Y. Aug. 5, 2016]).  Therefore, an SRO does not have jurisdiction to review any portion of the IHO's decision relating to section 504, and accordingly such determinations will not be further addressed.