STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-323
Application of a STUDENT WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Law Offices of Adam Dayan, PLLC, attorneys for petitioners, by Amled Perez, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Siobhan O'Brien, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) fund the cost of their son's tuition at the Lighthouse Early Learning Center (Lighthouse) for the 2024-25 school year. The appeal must be sustained.
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]). Similarly, when a preschool student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local Committee on Preschool Special Education (CPSE) that includes, but is not limited to, parents, teachers, an individual who can interpret the instructional implications of evaluation results, and a chairperson that falls within statutory criteria (Educ. Law § 4410; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.1[mm], 200.3, 200.4[d][2], 200.16; see also 34 CFR 300.804). 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
During the 2023-24 school year, the student turned four years old and continued to attend a preschool program at a nonpublic school (NPS) that is now known as Lighthouse (Parent Exs. A at p. 1; B at p. 1; HH ¶ 17).[1] A CPSE reconvened on September 27, 2023, continued to find the student eligible for special education as a preschool student with a disability, and developed an IEP with a projected implementation date of October 10, 2023 (Parent Exs. F at pp. 1, 2, 3, 15; G at p. 1).[2],[3] The September 2023 CPSE recommended that the student attend a 6:1+3 special class in a State-approved special education preschool program and receive the related services of two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of speech-language therapy in a group of two, and two 30-minute sessions per week of occupational therapy (OT) in a group of two, and that the parents receive four 30-minute sessions per year of parent counseling and training (id. at pp. 1, 15). The September 2023 CPSE further recommended that the student receive special transportation services consisting of a mini-bus (id. at pp. 1, 18).
By prior written notice dated September 27, 2023, the district summarized the recommendations of the September 2023 CPSE (Parent Ex. G at pp. 1-3). In a letter dated October 5, 2023, the parents advised the district of their disagreement with the recommendations of the September 2023 CPSE and of their concerns with the assigned preschool location (Parent Ex. H at p. 1). The parents further stated that, due to their concerns, the student would continue to attend Lighthouse (id. at p. 2).
By letter dated June 17, 2024, the parents, through their attorney, provided the district with notice of their continued disagreement with the recommendations of the September 2023 CPSE (Parent Ex. C at pp. 1-2). The parents asserted that the CPSE's recommendations were not supported by evaluative data and that the program would not offer sufficient behavioral support for the student due to the lack of 1:1 "attention and support in the form of a paraprofessional or A[pplied] B[ehavior] A[nalysis] 1:1 instructor" (id. at p. 2). The parents indicated that they remained open to a program recommended by the district but that, at that time, they were "left with no choice but to set up their own program and placement for [the] 2024-2025 school year" (id. at pp. 1, 2). The parents also stated that the student would be placed at Lighthouse "as of July 1, 2024," and they requested transportation from the district, noting that, if the district failed to provide transportation, they would seek funding for the cost of transportation (id.).
By email dated June 21, 2024, the CPSE administrator wrote to the parents stating that she "wanted to hold a meeting to discuss [the student]'s progress and recommended services" (Parent Ex. I at p. 1). The CPSE administrator indicated that she would contact the student's "current school to obtain progress reports" and would schedule a meeting upon receipt of the progress reports (id.).
On June 30, 2024, the parents countersigned an enrollment contract for the student to attend Lighthouse for the 12-month, 2024-25 school year from July 1, 2024 through June 20, 2025 (Parent Ex. S at pp. 1, 7).
A. Due Process Complaint Notice and Subsequent Events
In an initial due process complaint notice dated July 1, 2024, the parents alleged that the district failed to timely assess or adequately address the student's educational needs, and failed to offer him a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A at p. 10). The parents invoked the student's right to pendency based on an unappealed June 25, 2024 IHO decision (id. at pp. 2, 12). As relief, the parents requested an award of tuition funding for the 12-month, 2024-25 school year and district provision of special transportation or reimbursement for the cost of special transportation (id. at pp. 10-11).
On July 2, 2024, an IHO from the Office of Administrative Trials and Hearings (OATH) was appointed to preside over the matter (IHO Decision at p. 3; see IHO Ex. I at p. 1).
By email dated July 3, 2024, Lighthouse provided the CPSE with a requested progress report (Parent Ex. K at p. 5). Further, in email dated July 25, 2024, Lighthouse provide the CPSE with the student's June 15, 2024 end of year report (id. at pp. 2, 9-20).
On July 31, 2024, a CPSE convened and developed an IEP for the student with a projected implementation date of September 3, 2024 (Parent Ex. L at pp. 1, 3, 4, 14). The July 2024 CPSE recommended that the student receive five full days per week of instruction in a 12:1+2 special class in a State-approved special education preschool program (id. at pp. 1, 14, 17). The July 2024 CPSE also recommended the student receive related services of two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of speech-language therapy in a group of two, and two 30-minute sessions per week of OT in a group of two, and that the parents receive four 30-minute sessions per year of parent counseling and training in a group (id. at pp. 1, 14). The student was also recommended to receive special transportation services consisting of a mini-bus (id. at p. 17). In a prior written notice dated July 31, 2024, the district summarized the recommendations of the July 2024 CPSE (Parent Ex. M at pp. 1-4).
The IHO held a prehearing conference with the parties on August 8, 2024 (Aug. 8, 2024 Tr. pp. 1-13).[4] During the prehearing conference, the district stated that it would present two witnesses, one CPSE member and one representative from the assigned school site (Aug. 8, 2024 Tr. p. 3). The parents' attorney indicated that she intended to amend the due process complaint notice to address a subsequent IEP and that she intended to call three witnesses at the impartial hearing, one of whom was the student's Board Certified Behavior Analyst (BCBA) from Lighthouse (Aug. 8, 2024 Tr. pp. 5, 8-9).
Following the prehearing conference, the IHO issued a prehearing conference summary and order (IHO Ex. I).[5] The prehearing conference summary and order allowed parties to present witness testimony by affidavit and provided that "[a]ffidavits must be disclosed no later than [five] business days prior to the hearing" (id. at p. 2). In addition, the prehearing conference summary and order set forth the issues, requested relief, and defenses presented for determination, and further advised the parties that disclosure of exhibits and witness lists must occur five business days before the scheduled hearing date and that the witness list must include the name and title of the witness and a brief, but informative description of the nature of the witness's testimony (id. at pp. 3, 4).
By letter dated August 14, 2024, the parents notified the district of their concerns about the July 2024 CPSE's recommendations and the assigned school site (Parent Ex. N at pp. 1-2).
B. Amended Due Process Complaint Notice and Subsequent Events
In an amended due process complaint notice dated August 15, 2024, the parents alleged that the district did not offer an appropriate program and placement for the student by the start of the 12-month, 2024-25 school year and, as a result, failed to offer the student a FAPE for the 12-month, 2024-25 school year (Parent Ex. B at p. 9). The parents further asserted that the July 2024 CPSE's recommendations were not appropriate for the student (id.). Specifically, the parents alleged that the July 2024 CPSE failed to recommend 12-month services, an appropriate student-to-teacher classroom ratio, 1:1 support, or transition services for the student to adjust to a larger classroom, failed to conduct a functional behavioral assessment (FBA) and develop a behavioral intervention plan (BIP), failed to recommend an assistive technology device, and failed to recommend applied behavior analysis (ABA) or any other evidence-based methodology to address the student's significant communication and developmental delays (id. at pp. 9-10). The parents further objected to the assigned school site (id. at pp. 10-11). The parents asserted that the July 2024 CPSE ignored their concerns and as a result denied them meaningful participation in the development of the student's IEP (id. at p. 11). The parents also alleged that the CPSE failed to timely assess and adequately address the student's educational needs and failed to provide the student with an appropriate program and placement for the 12-month, 2024-25 school year (id. at pp. 11-12).
The parents sought findings that the district had failed to offer the student a FAPE for the 2024-25 school year and that Lighthouse was an appropriate unilateral placement (Parent Ex. B at p. 12). The parents further requested an award of tuition funding for the 12-month, 2024-25 school year, district provision of special transportation or reimbursement for the cost of special transportation, and a finding that equitable considerations did not warrant a reduction in the amount of funding requested by the parents (id. at pp. 12-13).[6]
On August 26, 2024, the district provided the parents with a prior written notice summarizing the recommendations of the July 2024 CPSE (Parent Ex. O at pp. 1-4). By email dated September 5, 2024, the CPSE administrator provided the parents with a referral form for an assistive technology evaluation and informed the parents of the assigned school site at which the student could be enrolled (Parent Ex. Q at p. 5). In an email response dated September 25, 2024, the parents informed the CPSE administrator that they had visited the assigned school site and found it inappropriate (id. at pp. 4-5). The parents further advised the CPSE administrator that they would obtain a private neuropsychological evaluation of the student (id. at p. 5). Between September 27, 2024 and October 16, 2024, the parties continued to correspond via email discussing the parents' objections to the recommendations of the July 2024 CPSE (id. at pp. 1-4).
C. Impartial Hearing
On October 21, 2024, the parents electronically disclosed their documentary evidence and witness list to the district and the IHO (IHO Ex. II at p. 1). In a reply dated October 23, 2024, the district requested to cross-examine two of the parents' witnesses and conceded that it failed to offer the student a FAPE for the 2024-25 school year (id.; see Tr. pp. 11, 20). The parents' exhibit list submitted with the certified hearing record indicated that the parents' proposed exhibit JJ was an affidavit provided by the student's Lighthouse BCBA in lieu of direct testimony, and the accompanying witness list indicated that the BCBA would testify to the student's behavioral programming and needs.
The parties reconvened before the IHO for an impartial hearing on October 28, 2024, which concluded on December 16, 2024, after three days of proceedings (Tr. pp. 1-116). At the October 28, 2024 impartial hearing date, the parents' attorney disclosed parent exhibits A-KK, with the IHO noting that, according to email correspondence sent that morning, parent exhibit JJ and parent exhibit II incorrectly contained identical copies of an affidavit in lieu of direct testimony from the same individual (Tr. p. 6). The parents' attorney subsequently disclosed the correct affidavit marked as parent exhibit JJ, which contained the direct testimony of the student's Lighthouse BCBA; however, the district objected to its admission into evidence as it was not timely disclosed (id.). The IHO sustained the district's objection, stating that she could not "expand parameters of discovery" (Tr. pp. 7, 10). Following her opening statement, the parents' attorney inquired whether the Lighthouse BCBA would be permitted to provide in-person direct testimony since her affidavit had been excluded (Tr. pp. 16-17). The district's attorney objected to the Lighthouse BCBA providing live direct testimony and the IHO asked the parents' attorney if there were extenuating circumstances related to the failure to timely disclose the affidavit (Tr. p. 17). The parents' attorney described the circumstances, which the IHO found to be a law office failure, which she found was not a sufficient basis to overrule the district's objection (Tr. pp. 17-19).
At the conclusion of the testimony of the Lighthouse preschool director (director) on October 28, 2024, the parents' attorney stated that there was still time to call the Lighthouse BCBA as a witness, and she argued that the BCBA could "clarify a lot of the documents that we have on the record as she drafted most of them" (Tr. pp. 65-66). The IHO stated that she would not allow the BCBA to testify in full but would allow her to clarify questions raised by the director's testimony (Tr. pp. 66-68). The matter was adjourned to December 9, 2024, for the taking of the BCBA's live testimony (Tr. pp. 67-68). The district's attorney failed to appear on December 9, 2024, and the matter was adjourned to December 16, 2024 (Tr. pp. 73-75).
The parties reconvened before the IHO on December 16, 2024, for an additional impartial hearing date to obtain the testimony of the student's Lighthouse BCBA (Tr. pp. 80-112). The parents' attorney was permitted to conduct a direct examination of the Lighthouse BCBA, during which time, the IHO also questioned the witness (id.). At the conclusion of the BCBA's direct testimony, the district's attorney declined to cross-examine the witness (Tr. p. 112).
D. Impartial Hearing Officer Decision
In a decision dated April 22, 2025, the IHO found that the district "elected not to introduce any documents, present any witnesses, and conceded Prong I at the [impartial] hearing" (IHO Decision at pp. 11, 13). As a result, the IHO determined that the district failed to prove that it offered the student a FAPE for the 2024-25 school year (id.).
Next, the IHO determined that the parents failed to meet their burden to prove that Lighthouse was an appropriate unilateral placement for the student (IHO Decision at pp. 11, 14, 17). In her discussion of the student's program at Lighthouse, the IHO noted specific "shortcomings of the educational program" and "[i]nconsistent testimony" about the Lighthouse program (id. at pp. 14-17). With regard to the "shortcomings," the IHO questioned the Lighthouse staff credentials, such as, the type and length of time the personnel had been certified or licensed; noted the lack of certification or licensure of some staff; and indicated that the BCBA was only present at Lighthouse three days per week (id. at p. 14). The IHO also identified programmatic concerns, such as the lack of information in the hearing record about the two paraprofessionals providing services to the student, the lack of a 1:1 student-to-teacher ratio, and unreliable data input by the paraprofessionals, and further opined that the school was more akin to a center with one class of eight students, noting that the students ranged from three to five years old and were not on the same functional academic level and were not all diagnosed as having autism spectrum disorder (id. at pp. 14-15). The IHO also identified a lack of assessment information and the informality of the educational plan as additional shortcomings (id. at p. 15). As for inconsistent testimony, the IHO noted that the Lighthouse director testified that the classroom teacher and BCBA collected the data about the student's behavior for a chart, whereas the Lighthouse BCBA testified that the student's school-based paraprofessional collected data during the school year (id. at p. 16).[7] Next, the IHO noted that the Lighthouse director testified that the BCBA was not in the classroom for the entire day, whereas the BCBA testified that she was (id.). The IHO also characterized testimony from the director, the BCBA, and the parent about the frequency of the provision of parent counseling and training at Lighthouse as inconsistent (id.). Lastly, the IHO found that the BCBA's description of data collection by school-based paraprofessionals in July and September 2024 and by agency-based paraprofessionals in August 2024 was an inconsistency in how data was collected for the student (id.).
Next, the IHO noted that the parents' June 17, 2024, 10-day notice letter stated that the student required a full-time ABA-based special education program, but found that Lighthouse did not provide the student with such a program, "and accordingly, by virtue of the [p]arent[s]' own statement" determined that Lighthouse "[wa]s inappropriate" (IHO Decision at p. 16). The IHO further found that "[b]ased on her responsibilities . . . the testimony of [the Lighthouse director was not] persuasive and [the IHO] therefore d[id] not credit her testimony" (id.). The IHO also found that the Lighthouse director and Lighthouse BCBA contradicted each other in their testimony, and that this made her "question [the Lighthouse BCBA's] credibility as well" (id.). The IHO then noted that there were no assessments or evaluations in the hearing record to support statements in testimony that the assessments were conducted in September 2024 and further noted that the student had significant behavioral challenges but that there were only two items on the Lighthouse BIP (id. at p. 17). The IHO then stated that, because the parents did not meet their burden to prove the appropriateness of Lighthouse, she did not need to address the issue of 12-month services (id.). In conclusion, the IHO determined that the hearing record did not support a finding that Lighthouse was an appropriate unilateral placement for the 2024-25 school year when considering the totality of the circumstances (id.). The IHO then denied the parents' request for tuition funding at Lighthouse (id.).
IV. Appeal for State-Level Review
The parents appeal and allege that the IHO erred in finding that they did not meet their burden to prove the appropriateness of the unilateral placement of the student at Lighthouse and erred in declining to address equitable considerations. The parents contend that the IHO should have awarded full funding for the student's tuition at Lighthouse for the 12-month, 2024-25 school year.
Initially, the parents assert that the IHO improperly precluded the Lighthouse BCBA's direct testimony by affidavit and improperly barred the parents from presenting her full testimony either through admitting the affidavit into evidence or through direct examination at the impartial hearing. The parents argue that the IHO abused her discretion and impinged on their due process rights. The parents included the affidavit of the Lighthouse BCBA and a copy of their entire disclosure packet with the request for review and request that the documents be considered as additional evidence.
Turning to the appropriateness of the unilateral placement, the parents argue that the district waived its right to contest this issue because it did not raise inappropriateness as a defense. The parents acknowledge that the IHO raised several issues regarding the training and experience of the service providers, lack of a formal written plan, and lack of evaluations, among other things. However, the parents claim that none of these issues warranted an adverse finding. The parents point to the excluded testimonial affidavit of the BCBA as well as the program's general description to demonstrate that Lighthouse was offering the student specially designed instruction to meet his unique needs.
Finally, the parents argue that the IHO erred in failing to make a determination regarding equitable considerations. The parents claim that the IHO should have found that the equities favored full tuition funding because they cooperated with the district and did not otherwise act unreasonably. For relief, the parents seek reimbursement for the full cost of tuition at Lighthouse for the 2024-25 school year.
In an answer, the district responds to the parent's allegations and requests that the IHO's decision be upheld in its entirety. In particular, the district argues that the IHO's decision to exclude the BCBA's affidavit and limit her direct testimony were rulings within the IHO's discretion. Turning to the appropriateness of Lighthouse, the district notes that the parents bore the entire burden of proof on that point. The district goes on to reiterate several issues with Lighthouse's program, including the lack of training and certification of staff, the fact that the student is in a class with other students who do not share his diagnosis, and lack of a formal educational plan. Finally, the district argues that, even if the IHO had found that equitable considerations favored the parents, they still would not be entitled to relief due to the inappropriateness of the unilateral placement.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[8]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
A. Preliminary Matters
1. Testimonial Affidavit
The parents argue that the IHO should not have precluded the testimonial affidavit of the BCBA, and, even if the affidavit was properly precluded, the IHO should not have limited the BCBA's in-person direct testimony. The parents maintain that the IHO's rulings regarding the BCBA's testimony constituted a denial of due process.
State regulations set forth the procedures for conducting an impartial hearing and address, in part, minimal process requirements that shall be afforded to both parties (8 NYCRR 200.5[j]). Among other process rights, each party shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses (8 NYCRR 200.5[j][3][xii]). Furthermore, each party "shall have up to one day to present its case" (8 NYCRR 200.5[j][3][xiii]). State regulation provides that an IHO may take direct testimony by affidavit in lieu of in-hearing testimony, provided that the witness giving such testimony shall be made available for cross examination (8 NYCRR 200.5[j][3][vii][f]). The IHO "shall exclude any evidence that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious" and "may limit examination of a witness by either party whose testimony the impartial hearing officer determines to be irrelevant, immaterial or unduly repetitious" (8 NYCRR 200.5[j][3][xii][c], [d]). Further, nothing shall impair or limit the IHO in his or her ability to ask questions of counsel or witnesses for the purpose of clarifying or completing the hearing record (8 NYCRR 200.5[j][3][vii]).
Generally, unless specifically prohibited by regulation, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]). At the same time, the IHO is expected to ensure that the impartial hearing operates as an effective method for resolving disputes between the parents and district (Letter to Anonymous, 23 IDELR 1073). State and federal regulations balance the interests of having a complete hearing record with the parties having sufficient opportunity to prepare their respective cases and review evidence.
Federal and State regulations provide that a party has the right to prohibit the introduction of evidence that has not been disclosed to that party at least five business days in advance of the impartial hearing (34 CFR 300.512[a][3]; 8 NYCRR 200.5[j][3][xii]). However, courts have not enforced absolute adherence to the five-day rule for disclosure but have upheld the discretion of administrative hearing officers who consider factors such as the conditions resulting in the untimely disclosure, the need for a minimally adequate record upon which to base a decision, the effect upon the parties' respective right to due process, and the effect upon the timely, efficient, and fair conduct of the proceeding (see New Milford Bd. of Educ. v. C.R., 431 Fed. App'x 157, 161 [3d Cir. June 14, 2011]; L.J. v. Audubon Bd. of Educ., 2008 WL 4276908, at *4-*5 [D.N.J. Sept. 10, 2008], aff'd, 373 Fed. App'x 294 [3d Cir. 2010]; Pachl v. Sch. Bd. of Indep. Sch. Dist. No. 11, 2005 WL 428587, at *18 [D. Minn. Feb. 23, 2005]; Letter to Steinke, 18 IDELR 739 [OSEP 1992]; see also Dell v. Bd. of Educ., Tp. High Sch. Dist. 113, 32 F.3d 1053, 1061 [7th Cir. 1994] [noting the objective of prompt resolution of disputes]).
Here, the IHO's prehearing conference summary and order indicated that the parties could submit affidavits from their witnesses in lieu or in-person direct testimony provided that the witnesses be available for cross-examination and the affidavit be disclosed "no later than 5 business days prior to the hearing" (IHO Ex. I at p. 2). The summary and order further set forth the parents' expressed intentions to present "two to three witnesses, likely by affidavits in lieu of direct testimony" (id. at pp. 1-2).
As noted above, the parents did not disclose the Lighthouse BCBA's testimonial affidavit until October 28, 2024, the day the impartial hearing commenced (IHO Decision at p. 3; Tr. pp. 6-7, 10). Further, it is undisputed that the failure to timely disclose the affidavit was due to an error on the part of the parents' attorney (IHO Decision at p. 3; Tr. pp. 17-18). In response to the district's objection, the IHO precluded the witness affidavit but ultimately allowed the witness to testify "about the documents [in evidence] and any other areas of clarification" (IHO Decision at pp. 3-4; Tr. pp. 10, 65-68).[9], [10]
Although the IHO had indicated that she would limit the BCBA's direct testimony "to questions that were raised for clarification," she imposed no apparent limitation at the beginning of the witness' testimony (Tr. pp. 68, 79-80). Throughout the BCBA's direct testimony, the IHO frequently interjected to ask questions but did not otherwise limit the parents' attorney's ability to question the witness (see generally Tr. pp. 80-112). The IHO warned the parents' attorney once about timing but did not preclude any line of questioning of the BCBA and the parents do not identify any examples of limits actually placed by the IHO on the witness's testimony (Tr. pp. 105-06).
Given the above, neither the IHO's refusal to admit the testimonial affidavit of the Lighthouse BCBA nor her statements about limiting the witness's in-person testimony, warrant reversal of the IHO's decision.[11] However, for the reasons set forth below, I find that the IHO erred in her determination that the parents failed to prove that Lighthouse was an appropriate unilateral placement
2. Credibility
As noted above, the IHO made certain credibility findings in the decision. More specifically, the IHO found the testimony of Lighthouse's director to be neither persuasive nor credible (IHO Decision at p. 16). Further, the IHO determined that inconsistent testimony between the director and BCBA caused her to doubt the credibility of both witnesses (id.).
Generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076).
Here, the IHO's credibility determinations did not rest on her assessment of the witnesses' demeanor, and in some respects resemble more closely assessments of evidentiary weight such as the IHO's finding that the director's testimony was not "persuasive" given the scope of her responsibilities at Lighthouse and the timing of her employment (see IHO Decision at p. 16; see also 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]).[12]
As to the inconsistencies identified by the IHO, I find that the examples identified by the IHO are based on "inaccurate" characterizations (S.M. & L.M. v. Eastchester Union Free Sch. Dist., 2026 WL 396110, at *12-*13 [S.D.N.Y. Feb. 12, 2026] [declining to defer to credibility findings based on IHO's inaccurate description]).
For example, regarding collection of data (see IHO Decision at p. 16), the director testified that the BCBA, in collaboration with the teacher, prepared the information contained in parent exhibit FF, a data regression overview for the period of August through September 2024, and collected the data therefore (Tr. pp. 29-30; see Parent Ex. FF). The director further emphasized that she only started at Lighthouse in September 2024 and did not create the regression overview document (Tr. p. 32). As for ABA data contained in parent exhibit EE, the director emphasized that the BCBA was the person better able to answer questions about that document, noting repeatedly that she was not comfortable opining about the document (Tr. pp. 33-37). Regarding the regression overview, the BCBA testified that "we" took data before and after the break, noting that "we ha[d] these goals" to work on and "we take data" (Tr. pp. 88-89). The BCBA clarified that she did not "take all the data," noting that she worked with the student some of the time but also supervised and/or observed paraprofessionals, who "for the most part" collected the data (Tr. pp. 90, 98-99). Given the foregoing, the BCBA did not testify that the paraprofessionals collected the data to the exclusion of herself and the teacher; moreover, the director's testimony could be interpreted as describing that the BCBA and teacher collected data including through their supervision of the paraprofessionals' data collection. Accordingly, the testimony is not inconsistent.
Regarding the BCBA's presence in the classroom throughout the entire school day (see IHO Decision at p. 16), the BCBA testified that, on the days she worked at Lighthouse, she stayed in the classroom (Tr. p. 99). In response to the IHO's question to the director as to whether the BCBA was in the classroom the entire school day, the director initially answered "[n]o" and then elaborated that the BCBA's "schedule [wa]s a little bit fluid" but that "[m]ost of the time, she [wa]s [at Lighthouse] Monday, Tuesday, and Wednesday from 9:00 to 3:00" (Tr. pp. 58-59). Thus, it appears that, when stating that the BCBA was not in the classroom all the time, the director was referring to the fact that the BCBA was not in the classroom on days she did not work at Lighthouse, which was not inconsistent with the BCBA's testimony.
Regarding parent counseling and training (see IHO Decision at p. 16), the director testified that parent counseling and training was "offered" once per week by the BCBA (Tr. pp. 63-64). The BCBA testified that parent counseling and training was "usually [provided] every two weeks[, i]n addition to constant communication, if there [we]re any concerns that c[a]me up in between those two weeks" (Tr. pp. 108-09). The father testified that the parents communicated with Lighthouse staff weekly and spoke with the BCBA at least "once a week" (Parent Ex. HH ¶ 33). To the extent the director described what was available, whereas the father and the BCBA described a minimum of what was provided, either formally as parent counseling and training or in terms of overall communication, the testimony does not conflict.
The final evidence listed by the IHO as an inconsistency related only to the BCBA's testimony about data collected during summer, but was not inconsistent insofar as the BCBA explained that Lighthouse, in addition to functioning as a school, also operated as agency that employed paraprofessionals who she also supervised and who provided services to the student in the home during the summer (see Tr. pp. 89-90, 111-12).
Based on the foregoing, review of the hearing record, in its entirety, does not support the IHO's credibility determinations and, accordingly, are not entitled to deference.
B. Unilateral Placement
Initially, neither party has appealed the IHO's determination that the district denied the student a FAPE for the 2024-25 school year. Accordingly, that determination has 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]). The next issue to be address is the appropriateness of the Lighthouse.
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).
1. Student's Needs
In order to address the appropriateness of the student's unilateral placement at Lighthouse, it is first necessary to describe the student's needs, and, thereafter, to review the parents' unilateral program to determine if the nonpublic school provided the student with specially designed instruction reasonably calculated to confer educational benefit.
With respect to the student's needs during the 2024-25 school year, to the extent the IHO faulted the parents for not introducing evidence of assessments conducted by Lighthouse after September 2024 (see IHO Decision at pp. 6, 9), it was not the parents' responsibility to evaluate the student and identify his needs (see A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]).[13] Moreover, the student's needs are described in the July 2024 IEP developed at the very beginning of the school year at issue (see Parent Ex. L at pp. 4-9). The July 2024 CPSE considered reports from the student's private school, including a May 2024 speech-language progress report, a May 2024 OT progress report, and a June 2024 education progress report (Parent Ex. M at p. 2; see Parent Ex. K at pp. 9-20). The IHO appears to further question the reliability of the June 2024 education progress report as a statement of the student's needs, but there is no dispute that the July 2024 CPSE relied upon this document and adopted much of the information into the student's IEP (IHO Decision at p. 12).
According to the July 2024 IEP, the student was able to state his first and last name, as well as his age, identify body parts and basic colors, match 3D objects, sort by basic categories, identify objects based on a category, label some objects in his environment, find objects that go together, name some actions, and make a choice when presented with two options and provided with a prompt (Parent Ex. L at p. 5). The student was not able to label the function of objects (id.). The IEP stated the student recognized upper and lowercase letters, blended sounds together, and read some words (id.). The student also filled in words or phrases while reading familiar books but could not sequence two to three story cards to recount daily activities in logical order (id. at p. 6). Additionally, the July 2024 IEP stated the student rote counted to 30, counted with one-to-one correspondence up to 15, and matched objects to pictures with the same quantity of objects up to 15 (id. at p. 5). The student understood quantitative concepts, "sort[ed] basic quantitative concepts" with prompts, and identified basic directional/positional concepts (id. at p. 6). The student was able to complete simple two-step patterns (id.).
The July 2024 IEP indicated that the student began a task when prompted and completed a task with some prompting, reinforcement, and a token economy (Parent Ex. L at p. 5). The student sat during circle time for five minutes independently prior to needing redirection (id.). When excited or overstimulated, the student engaged in self-stimulatory behaviors of hand flapping and pacing (id.). The IEP noted the student needed supervision to remain on task when distraction was present (id. at p. 6). It further noted the student did not retrieve his own materials or items needed for class, unless prompted (id.).
Turning to speech-language skills, the IEP reflected the results of a May 20, 2024 administration of the Preschool Language Scales-Fifth Edition (PLS-5) which found the student demonstrated low average auditory comprehension skills (standard score of 86, 18th percentile) and below average expressive communication skills (standard score of 72, 3rd percentile), and obtained a below average total language score (standard score of 78, 7th percentile) (Parent Exs. L at p. 4; Z at p. 1). The IEP also reflected the results of a May 16, 2024 administration of the Goldman Fristoe Test of Articulation (GFTA-3) which found the student demonstrated average articulation skills, with the student earning a standard score of 100 at the 50th percentile (Parent Exs. L at p. 5; X at p. 1). The student's overall speech-intelligibility rating was 75 percent for unfamiliar listeners, with many of the errors exhibited reported to be age-appropriate (Parent Ex. L at p. 5). According to the IEP, since January 2024, the student had been using a high-tech AAC device which the parent purchased through medical insurance (id. at p. 6). The student produced age-appropriate utterance lengths of five-to-six-word sentences, as well as three-to-four-word phrases, and used language for different pragmatic functions such as protesting, requesting, answering, and commenting (id.). The IEP stated the student displayed characteristics of a "gestalt-language learner" where his speech was characterized by echolalic imitations and repeated phrases learned from others, songs, movies, or electronic games (id.). The therapists used these learned phrases to create novel and functional speech (id.).
The July 2024 IEP indicated that the student followed one-step directions in 1:1 and group settings, made progress following two-step related commands, but had difficulty following two-step related/unrelated directions in a group setting (Parent Ex. L at p. 6). The student had difficulty following directions that included negations such as "give me the block that is not red" (id.). The IEP indicated the student responded to simple "wh" questions but was not asking simple "wh" questions to gain information for clarification or out of curiosity (id.). The student did not use a variety of adjectives or repeat a sequence of three numbers or unrelated words (id.). In addition, the student did not initiate communication unless requesting an item with nonverbal communication and/or single words verbally and/or with his AAC device (id. at p. 7).
Turning to social development, the July 2024 IEP stated that the student had recently showed an interest in other children with the student tapping peers on the shoulder or saying their names (Parent Ex. L at p. 7). The student engaged in parallel play and played functionally with some toys but demonstrated reduced eye contact (id.). According to the IEP, the student independently greeted others with a hand wave and a verbal "hello/hi" or "bye-bye" with the addition of naming the person (id.). The student identified basic emotions based on facial expressions and used words to verbalize his own emotions (id.). The student recently began to independently join in games with other children on the playground, made eye-contact with conversation partners, and responded for one-turn in a conversation (id.).
When provided prompts, the student transitioned from different settings and activities, followed classroom routines, and used a visual schedule (Parent Ex. L at p. 7). The July 2024 IEP indicated that transitions to nonpreferred activities were challenging for the student and he could get upset when his classroom teacher was absent or there was an unexpected change in the schedule (id. at p. 8). The student reportedly exhibited some head banging and hitting at school after a long break and needed time to get readjusted to the routines (id.). According to the IEP, the student used a first-then board as a visual for transitions and had developed the ability to take deep breaths during tasks perceived as difficult to prevent tantrum behavior (id.). The student needed a visual and verbal cue to take deep breaths (id.). The student also had difficulty quieting down after an active period and sitting without moving when involved in an activity (id.). The IEP reported the student had difficulty engaging in non-preferred tabletop tasks that required simultaneous auditory and visual information processing (id.).
Turning to physical development, the IEP stated the student had difficulty performing activities which required eccentric control, described as activities that required a slowing down of opposing muscle groups to accurately perform the movement (Parent Ex. L at p. 8). Proprioceptive activities such as crashing and crawling provided sufficient information to the student's muscles in order to grade movements and through practicing eccentric muscle movements the student improved his body awareness and control (id.). According to the IEP, OT focused on full body stopping movement (muscle inhibition and control) and the student's ability to engage his diaphragm to perform efficient breathing for self-regulation (id.). The July 2024 IEP stated the student did not use his non-dominate hand to stabilize the paper when drawing (id.). The student had difficulty holding a pencil or crayon using a static tripod grasp or drawing a picture of person (id.). Additionally, the IEP noted the student was not able to imitate a circle, horizontal line, vertical line, or plus sign (id.). Perceptually, the student put together simple inset puzzles and interlocking puzzles, strung beads, placed small pegs in holes, and reproduced two-dimensional block design (id.). The student had difficulty building a tower of nine blocks, spreading glue on paper and turning it over to stick to other paper, folding paper three times, placing a paperclip on a paper, donning scissors, and cutting across a paper (id.). The student needed to work on holding writing utensils, coloring, drawing shapes, dressing independently, and buttoning (id. at p. 9).
2. Lighthouse
Documentary evidence in the hearing record regarding the programming at Lighthouse includes a program and course description, the student's schedule and attendance records, an undated BIP; an undated annual goals document; ABA data for the period of July through September; and regression data for the period of August to September 2024 (Parent Exs. T; V; W; BB; DD; EE; FF). In addition, the parents presented the testimony of the Lighthouse director and BCBA, as well as the father (Tr. pp. 20-65, 80-112; Parent Exs. HH; II).
According to the Lighthouse program description, Lighthouse provides a developmentally appropriate preschool experience for children with diverse needs, offering personalized ABA therapy and related services in a playgroup setting for ages three through five years for the duration of the school day (Parent Ex. T a p. 1). Lighthouse was described as "special education preschool that utilizes a holistic and transdisciplinary approach to help children with disabilities" with a curriculum designed by BCBAs (id. at pp. 1-2). According to the program description, teachers collaborate with therapists to design individualized programs for each student, integrating therapeutic goals within the classroom setting (id.). The program description indicated that each student at Lighthouse had a dedicated behavior technician who implemented behavior plans and protocols designed and supervised by the school BCBA (id.). Students reportedly worked on skill acquisition and behavior reduction during 1:1 ABA program time and during therapeutically designed social groups, centers, and activities (id.). According to the Lighthouse program description, the OT department used sensory integration to support regulation in the classroom environment as well as for motor discrimination and processing skills (id.). In addition, students' gross motor skills were reportedly developed to ensure adequate postural control for classroom tasks, functional daily living skills were addressed to foster independence, and fine motor and visual motor skills were assessed and treated with targeted interventions to support classroom tool use and engagement (id.). The description indicated that students received individual OT in a gym and participated in a biweekly motor skills development group which targeted core strengthening, balance, and coordination (id.). The program description stated that the Lighthouse faculty included a "team of highly qualified special education teachers, behavior analysts, occupational therapists, physical therapists, and speech and language therapists" and that the therapists met with parents monthly to discuss progress and concerns (id.).
The Lighthouse program description included a preschool class schedule that provided a general description of the class curriculum and how therapeutic goals were incorporated throughout the day (Parent Ex. T at p. 3). According to the schedule, students started by following a visual schedule upon arrival and engaging in individual skill-based tasks (i.e., "morning task boxes" with 1:1 paraprofessionals (id.). The morning included social group activities, followed by breakfast where the students practiced self-help skills (id.). Circle time followed, during which students explored themes through discussion, role playing, games, music and movement (id.). During, outdoor play/gross motor play, students worked on gross motor skills (id.). According to the schedule, individual sessions with paraprofessionals focused on students' individual ABA and academic skills, while the BCBA monitored (id.). During lunch, students practiced self-help skills and conversation (id.). In the afternoon, students attended small group instruction, which related to the theme addressed at the earlier circle time, followed by library time/quiet time (id.). The remainder of the day consisted of individual work time/therapy during which students continued working on individual ABA programs and 1:1 academic skills; rotating play-based table activities; and rotating play activities in different classroom centers (id. at pp. 3-4). The day concludes with snack time, including review of the day, and a goodbye routine to practice self-help and daily living skills (id.).
The student's attendance record for 2024-25 school year showed that, as of the date the record was prepared, he had attended the program for the entire month of July, six days in August, the month of September, and six days in October 2024 (Parent Ex. W).[14] For the 12-month 2024-25 school year, the director testified that the school had one classroom of eight students aged three to five years old and they were not all on the same functional levels (Tr. p. 28; Parent Ex. II ¶ 7). For the 2024-25 school year, the student's schedule was similar to the schedule in the program description and consisted of: welcome and morning task boxes, morning meeting, breakfast, circle time, outdoor play, "ABA 1:1 prep work," lunch, OT, small groups with the teacher, quiet rest and sensory input, a second session of "ABA 1:1 prep work," rotating tables, center based play, snack, and goodbye (Parent Ex. V). While the student's schedule reflected that the student received 15 minutes per day of small group OT, it did not reflect if and when the student received related services for speech-language therapy or individual OT (id.). The BCBA testified that, during the two ABA sessions per day, data was taken (Tr. pp. 99-100). When the IHO questioned whether ABA was "embedded throughout the curriculum," the BCBA testified that "it is," noting that the goals were designed in "ABA format" with skills broken down "into smaller steps" and that "social skills and . . . other domains" used ABA methodology (Tr. p. 100).[15]
The director testified that, in addition to herself, the program was staffed by one teacher, eight paraprofessionals, a BCBA, and related service providers (Tr. pp. 48-50; Parent Ex. II ¶ 9). Before taking the position at Lighthouse in September 2024, the director had several years of experience as a teacher, and, in her role as director, she, among other things, developed curricula, monitored progress reports and notes, coordinated and participated in weekly meetings about each child, supervised staff, and observed and interacted with students (Parent Ex. II ¶¶ 2-5). The BCBA had a master's degree in special education, was a licensed behavior analyst (LBA) and a BCBA, and worked at the school part time, three days a week, and supervised the paraprofessionals on a weekly basis (Tr. pp. 80, 91-92, 109-11).[16] The director testified that the head teacher, who was finishing her master's degree and held an internship certificate for special education, provided the primary academic instruction to students through large group and small group activities (Tr. pp. 26-27, 46-47, 55-56; Parent Ex. II ¶ 10). The director testified that behavior technicians/paraprofessionals did not hold any certifications but needed to have a high school diploma and attend a three-hour ABA on-line training, and, further, that they received "ongoing training from [her] and/or the BCBA on student-specific programming" (Tr. pp. 24-25, 49; Parent Ex. II ¶ 17).[17] The director testified that she reviewed the classroom schedule and explained that the paraprofessionals worked with the students during "morning task boxes," as well as during and morning and afternoon 1:1 ABA time (Tr. pp. 55-56, 58). According to the director, the teacher created the work boxes and taught the paraprofessionals how to work with them and the teacher was present during work box time (Tr. pp. 55-56). The director further reported that, on days the BCBA worked, she was present during 1:1 ABA time when the paraprofessionals were working with the students (Tr. pp. 58-59).
The director testified that Lighthouse prepared an educational plan for the student but, in terms of the activities used to teach skills or goals, it was not a formal plan (Tr. pp. 40-41, 45). On the other hand, she indicated that goals were "always very formal" (Tr. p. 45). Included in the hearing record is a document that includes eight long-term annual goals with short-term objectives for the student (see Parent Ex. DD). The document does not have a date, author name, or signature to ascertain when it was developed; however, the BCBA testified she created the annual goals with the student's teacher in September 2024 (Tr. p. 82).[18] The BCBA further testified that the goals were created based off assessments that were administered, including the AFLS; she could not recall what the AFLS acronym stood for but said that it assessed the domains of social language and adaptive skills (Tr. pp. 84, 86). In addition, the BCBA testified that daily observations helped inform the development of the annual goals (Tr. pp. 83-84).
According to the Lighthouse annual educational goals document, the student had one long term goal for pre-academic skills, with four short-term objectives for the student to follow daily routines with 80 percent accuracy, and complete color patterns, shape patterns, and growing patterns using discrete trial training with 90 percent accuracy (Parent Ex. DD at p. 1). An adaptive living goal included six short-term objectives that targeted the student's ability to follow a task completion chart independently, follow an activity schedule, independently wipe and blow his nose, brush his teeth without assistance, follow a "get, do, done" chart independently, and adjust to nonpreferred changes in his schedule (id. at p. 2). A long term annual goal to develop language skills included 12 short term objectives for the student to communicate his needs functionally; independently use core words instead of engaging in maladaptive behaviors; increase his mean length of utterance by labeling action, agent, and subject; describe an item using three adjectives; sort items into a correct category; label categories of 30 different items; follow receptive three step directions; follow receptive instructions using preposition words; follow expressive instructions using preposition words; answer WH questions; produce WH questions; and sequence a four step story (id. at pp. 4-6; see Tr. p. 93). Furthermore, a long term goal to improve social interactions with peers included seven short term objectives for the student to engage in turn taking with his peers using discrete trial training, take turns with his peers in the natural environment, pass items to peers upon request with no prompts, initiate greetings upon entering and leaving the room, engage in 10 pretend play activities, increase awareness of, identifying, and labeling emotions of self and others, and initiate and maintain conversations for three rounds (Parent Ex. DD at p. 4). Four long-term annual goals with short-term objectives addressed motor skills where the student had to self-regulate during nonpreferred tasks, improve written communication, complete activities of daily living with improved independence, and improve his grasping abilities for greater manipulation of classroom tools (id. at pp. 5-6).
The hearing record included "ABA data" charts created by Lighthouse showing the student's progression toward goals during the months of July through early October for the 2024-25 school year (see Parent Ex. EE). Generally, the goal listed at the top of the page was cut off, was unreadable due to insertion of non-alphabetic characters, and many of the goals were not the same goals as in the annual goals document created by Lighthouse (compare Parent Ex. DD, with Parent Ex. EE).[19], [20]
A functional behavioral analysis (FBA) was developed in June 2024 by the Lighthouse BCBA (Tr. pp. 85-86; Parent Ex. AA). The FBA identified head banging, tantrum, and restrictive and repetitive behaviors as the three target behaviors (Parent Ex. AA). Through the use of indirect assessment results and a review of ABC chart data, the FBA found that head banging occurred when there was too much stimulation going on around the student and when he was walking in busy hallways (id. at pp. 2-3). The FBA recommended that the student use headphones prior to walking in a stimulating environment and that a functional communication training program be implemented to teach him to request the headphones (id. at pp. 2-3). In addition, the FBA stated that tantrum behavior happened when a demand was placed on the student or a transition occurred (id. at pp. 3-4). In order to decrease tantrum behavior, the FBA recommended a behavior reduction protocol of differential reinforcement of other (i.e., "DRO") by providing the student with a first and then chart and the implementation of functional communication training to teach him to request a break (id. at p. 4). As detailed in the FBA, the behavior of restricted and repetitive behaviors was maintained by sensory seeking and the student engaged in the behavior when he was overstimulated in an exciting activity (id. at pp. 4-5). To reduce the restrictive and repetitive behavior, the FBA recommended providing the student with a sensory toy and emotion words and noted the student's need for a functional communication training program to teach him to talk about his feelings (id. at pp. 5-6).
The hearing record includes a parent exhibit referred to in the exhibit list as a "[s]tudent [b]ehavioral [i]ntervention [p]lan" (BIP) but the document itself lacks a title, date, and author (see Parent Ex. BB). The document (BIP) provides directions for an adult to follow during transitions and how to intervene during headbanging incidents (id. at pp. 1-2).[21] For transitions, the BIP stated that the adult had to show the student a first then card, put on a sand timer for five minutes, and when the timer was up, verbally tell the child the timer rang and the student and "BT" needed to clean up, the adult modeled putting away the toy, started a song, and showed a card if he listened to put toy away, and the adult took his hand and jumped to the next activity while continuing to sing the alphabet song (id. at p. 1). The BIP also provided directions on what to do if the student did not put the toy away by repeating "put the toy away" and placing a transition visual in front of the adult's face so the student would try and reach for it, and when he reached for the transition visual to say "put toy away" while pointing to the toy (id.). To address head banging, the adult needed to notice when the student engaged in precursor behaviors and then the adult needed to "give in to him and try again after three minutes" (id. at p. 2). If head banging occurred, the adult placed a pillow between him and the object he was banging into for 15 seconds and then gave the student the opportunity to do something else; continuing this cycle until head banging stopped (id.).
In finding that the parents did not meet their burden to prove that Lighthouse was an appropriate unilateral placement, the IHO made several factual findings, including as related to the credentials of staff, lack of a formal written plan, class size, and grouping (IHO Decision at pp. 14-15).
With respect to credentials of staff and development of a formal plan, consistent with the parents' position and as noted above, it is well settled that, in order to be found appropriate, a unilateral placement need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). While a teacher at a unilateral placement need not be State-certified (Carter, 510 U.S. 7, 14 [noting that unilateral placements need not meet state standards such as state certification for teachers]), there must be objective evidence of special education instruction or supports that are specially designed by the student's providers at the private school who have reasonable qualifications that are specifically related to the student's deficits (see Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 387 [2d Cir. 2014] [noting that general evidence regarding a student's psychological progress from a student's private counselor with a master's degree but who lacked certification in New York or his home state regarding was insufficient to support tuition reimbursement]).
Here, although the BCBA received her certification in 2023, which the IHO characterized as "minimal experience," she had obtained a master's degree in special education in "2015 or 2016" (IHO Decision at p. 14; see Tr. p. 109-10).[22] Likewise, although the teacher held an internship certification, there is no indication that she lacked the skills or qualifications to lead the student's class, particularly under the supervision of the director (Tr. pp. 46-47; Parent Ex. II ¶ 10). As to the paraprofessionals, while the IHO found that the hearing record did not include any "information about these individuals" (IHO Decision at p. 14), the director named the two paraprofessionals assigned to work with the student (Parent Ex. II ¶ 30). Regarding the paraprofessionals' training, which the IHO characterized as not "meaningful," the hearing record described the content of the training and indicated that she and the BCBA additionally supervised these individuals and taught them information specific to the students they worked with (Tr. p. 50; Parent Ex. I ¶ 17).[23] The IHO also noted that the hearing record did not include "certifications . . . as to credentials of related service providers (IHO Decision at p. 14); however, the director's testimony that "[a]ll related service providers [we]re licensed within their respective fields" and which named and listed the certifications of the student's providers is unrebutted (Parent Ex. II ¶¶ 17, 34, 39). While the IHO was correct to take into account the qualifications of the Lighthouse staff, given the information available and in light of the totality of the evidence regarding the specially designed instruction provided to the student at Lighthouse, the hearing record does not support the IHO's conclusion that Lighthouse was an inappropriate unilateral placement based on the qualifications of staff.
Another area in which the IHO found issue with the programming at Lighthouse related to the composition and nature of the class (see IHO Decision at p. 14). As to the IHO's observation that the class was "more akin to [a] 'center'" (IHO Decision at p. 14), it is unclear what difference such characterization makes in light of the evidence of specially designed instruction. Further, it is undisputed that, although the director stated in her affidavit that Lighthouse "maintain[ed] a 1:1 student-to-teacher ratio" (Parent Ex. II ¶ 12), the 1:1 ratio was due to the paraprofessionals assigned to the students, not teachers (Tr. pp. 22-23). However, this factor does not undermine the appropriateness of the programming, as there is no indication in the hearing record that the student required a 1:1 student-to-teacher ratio in order to receive educational benefit. In addition, contrary to the IHO's finding, there is no evidence in the hearing record that the varying functional academic levels or diagnoses of the other students in the classroom impacted the provision to the student of specially designed instruction, particularly given the evidence of 1:1 individualization of programming (see IHO Decision at p. 15; Tr. p. 28).[24]
Other factors weighed by IHO addressed herein, including the IHO's findings about the lack of evaluations conducted by Lighthouse during the 2024-25 school year and the lack of a formal written educational plan, are, for the reasons set forth above, not appropriate grounds for finding the unilateral placement inappropriate. Accordingly, taking into account the totality of the evidence, the parents met their burden of demonstrating the appropriateness of Lighthouse.
C. 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"]).
The parents argue that the IHO erred in failing to address equitable considerations. Specifically, the parents assert that they cooperated with the district at all times and that the district raised no equitable considerations during the impartial hearing that would warrant a reduction or denial of an award of tuition funding. In its answer, the district does not dispute that there are no equitable considerations that would weigh against the parents' requested relief. Moreover, the evidence in the hearing record reflects that the parents cooperated with the CPSE and provided timely 10-day notice of their intention to unilaterally enroll the student at Lighthouse (see Parent Exs. C; L; N; Q).
VII. Conclusion
In light of the above, the parents met their burden to prove the appropriateness of the educational program offered by Lighthouse and equitable considerations support their request for funding by the district for the student's tuition for the 2024-25 school year.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the IHO's decision, dated April 22, 2025, is modified by reversing those portions which found that the parents did not meet their burden to prove that Lighthouse was an appropriate unilateral placement for the student, and which denied the parent's request for district funding of the student's tuition at Lighthouse for the 2024-25 school year;
IT IS FURTHER ORDERED that the district shall fund the student's tuition at Lighthouse for the 2024-25 school year.
Footnotes
[1] According to the hearing record, the student attended the same NPS for the 2023-24 and 2024-25 school years, however at some point prior to the start of the 10-month, 2024-25 school year, the NPS changed its name to Lighthouse (Parent Exs. A at p. 9; B at p. 8; see Tr. pp. 14-15). Lighthouse has not been approved by the Commissioner of Education as a school with which districts may contract to provide special education services to preschool students with disabilities (see Educ. Law § 4410[9]; 8 NYCRR 200.1[nn]).
[2] The student's eligibility for special education as a preschool student with a disability is not in dispute (see 8 NYCRR 200.1[mm]).
[3] By letter dated August 3, 2023, the student's father advised the CPSE that he had participated in a reconvened CPSE meeting on July 17, 2023, and received a July 2023 IEP and school location letter (Parent Ex. D at p. 1). The letter further referenced a March 2023 IEP and requested that the district conduct a neuropsychological evaluation of the student (id.). The hearing record does not include a March 2023 IEP or a July 2023 IEP. In an email dated August 21, 2023, the student's father advised the CPSE administrator that, upon visiting the public school site at which the July 2023 IEP was to be implemented, he determined that the school was not a "good fit" for the student (Parent Ex. E at p. 1).
[4] The transcript from the prehearing conference is not paginated consecutively with the transcripts from the impartial hearing. Both the August 8, 2024 prehearing conference transcript and the transcript from the first day of the impartial hearing on October 28, 2024 begin with page one. To the extent it is necessary to cite to the transcript for the prehearing conference, it will be cited by the date and corresponding page number (see Aug. 8, 2024 Tr. pp. 1-13). All other transcript citations in this decision refer to the impartial hearing held on October 28, 2024, December 9, 2024, and December 16, 2024 (see Tr. pp. 1-116).
[5] Although the prehearing conference summary and order was dated August 7, 2024, it included a summary of the events of the August 8, 2024 prehearing conference and indicated the matters discussed by the parties during the prehearing conference (IHO Ex. I at pp. 1-8).
[6] According to the hearing record, the district provided the student with special transportation during the 2024-25 school year (Tr. p. 16).
[7] In referring to data, the IHO cited exhibits 29 and 30 (IHO Decision at p. 16). The hearing record does not include exhibits 29 and 30; however, it is presumed that the IHO was referring to parent's exhibit EE and FF, which include summaries and charts of data (see Parent Exs. EE; FF).
[8] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[9] On appeal, the parents argue that the IHO should have admitted the affidavit into evidence at the December 2024 hearing dates because, at that point, the five-day disclosure rule had been satisfied. However, during the proceedings held December 9 and 16, 2024, the parents did not present their argument in this regard to the IHO or renew their request for admission of the Lighthouse BCBA's affidavit (see generally Tr. pp. 71-116).
[10] At the October 28, 2024 hearing date, even if the IHO incorrectly cited lack of notice to the district as the basis for not permitting in-person testimony at that point, subsequently, the witness appeared and testified; therefore, under the particular circumstances of this case, any such error does not warrant reversal.
[11] Given my determination that the IHO did not abuse her discretion in excluding the BCBA's affidavit, I decline to consider Attachment A to the parents' request for review on appeal.
[12] The IHO's circular reasoning that she "d[id] not credit [the director's] testimony" because her testimony was not persuasive does not warrant deference (IHO Decision at p. 16).
[13] To the extent the IHO cited that the assessments were not in evidence to emphasize a lack of corroboration for the director's testimony that such assessments took place (see IHO Decision at pp. 6, 9, 15, 17), the director explained that, although the assessments had been completed, the "paperwork to follow-up with that" had not (Tr. p. 40).
[14] According to the BCBA, summer break took place from August 8 until Labor Day in September (Tr. p. 87). The BCBA further explained that the student received some ABA services during the summer break from providers through Lighthouse's "ABA agency," who she supervised, and which were paid for through the parents' insurance (see Tr. pp. 89-90, 111-12).
[15] Despite this testimony, the IHO concluded, without citation, that ABA was "not embedded in curriculum" (see IHO Decision at p. 12). The hearing record does not support the IHO's conclusion in this regard or her finding that, because Lighthouse did not provide the student with a full-time ABA program, the school was inappropriate (id. at p. 16).
[16] The BCBA testified she began working at Lighthouse in April 2024 and received her certification in April 2023 (Tr. pp. 81, 109).
[17] According to the director, the training covered "various behavioral interventions based on the principles of ABA," including "reinforcement strategies, prompting and fading, shaping, and chaining," as well as "various methods of data collection and measurement techniques used in ABA therapy" (Parent Ex. II ¶ 17).
[18] The BCBA's testimony addresses the question posed by the IHO as to who created the annual goals and when (IHO Decision at p. 11).
[19] The BCBA testified that the data presented in parent exhibit EE (ABA data) and parent exhibit FF (regression data) were created prior to the educational annual goals document, which was created in September with the new teacher (Tr. p. 97).
[20] The director testified that, in parent exhibit EE, the labels were cut off and she did not know what the labels were saying/referring to, and this was a known problem when it printed (Tr. pp. 36-37). In addition, the BCBA confirmed that a person who was unfamiliar with the terminology would not know what the graph was measuring (Tr. p. 96).
[21] As a shortcoming of the Lighthouse program, the IHO noted that the BIP only addressed two items (IHO Decision at pp. 14, 16). It is unclear if the IHO found this deficient because the BIP did not address the student's behavior, identified in the FBA of restricted and repetitive behaviors (see Parent Ex. AA at pp. 4-5). However, the FBA reflected that the student engaged in restricted and repetitive behaviors when in a non-stimulating environment or when engaging in an exciting activity and offered tactics to decrease the behavior including providing the student with a sensory toy and with functional communication training to assist him in talking about his emotions (id. at pp. 5-6). The director, in turn, reported that the student's program at Lighthouse included instruction in how to communicate feelings effectively and self-regulation skills and that, in OT, the student was working on sensory processing and regulation (Parent Ex. II ¶ 32). Accordingly, there is no indication that the student had behavioral needs that went unmet.
[22] The hearing record is not developed regarding the BCBA's prior employment.
[23] The IHO also pointed out that the director "was not familiar with the term licensed behavior technician" (IHO Decision at p. 15). However, the IHO used the term "licensed behavior technician," whereas the term in law is "licensed behavior analyst" (compare Tr. p. 25, with Educ. Law § 8802). Indeed, after the IHO inquired of the director if she was "familiar with what a licensed behavior technician is," the director responded that she was not but asked if the IHO was "referring to like an LBA" (Tr. p. 25). The IHO did not clarify and turned the questioning back over to the district (id.).
[24] Neither the IDEA nor federal regulations require students who attend a special class setting to be grouped in any particular manner. The United States Department of Education has opined that a student must be assigned to a class based upon his or her "educational needs as described in his or her IEP" and not on "a categorical placement," such as one based on the student's disability category (Letter to Fascell, 18 IDELR 218 [OSEP 1991]). While unaddressed by federal law and regulations, State regulations set forth some requirements that school districts must follow for grouping students with disabilities. In particular, State regulations provide that in many instances the age range of students in a special education class, including those serving preschool students, shall not exceed 36 months (8 NYCRR 200.6[h][5]; 200.16[i][3][iii][a]). State regulations also require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.1[ww][3][ii]; 200.6[a][3], [h][3]; 200.16[i][3][iii]; see Walczak, 142 F.3d at 133 [approving an IEP that placed a student in a classroom with students of different intellectual, social, and behavioral needs, where sufficient similarities existed]). State regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to levels of academic or educational achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the students in the classroom (see 8 NYCRR 200.6[h][2]; 200.16[i][3][iii]; see also 8 NYCRR 200.1[ww][3][i][a]-[d]). SROs have often referred to grouping in the areas of academic or educational achievement, social development, physical development, and management needs collectively as "functional grouping" to distinguish that set of requirements from grouping in accordance with age ranges (see, e.g., Application of a Student with a Disability, Appeal No. 17-026). A unilateral placement is not subject to the same regulatory requirements as the district (see Carter, 510 U.S. at 14-15).