STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-330
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
The Law Firm of Tamara Roff, PC, attorneys for petitioners, by Leslie Bradshaw, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Nicole Daley, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her daughter's tuition at the Jewish Center for Special Education (JCSE) for the 2023-24 school year. The district cross-appeals from a portion of the IHO's decision. The appeal must be sustained in part. The cross-appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed and, therefore, the student's educational history, the procedural history of the case, and the IHO's decision will not be recited in detail. At all relevant times, the student was eligible for special education as a student with a speech or language impairment (see Dist. Exs. 1 at pp. 1, 23; 2 at p. 1).[1]
On January 29, 2023, the district conducted a psychoeducational evaluation of the student as a part of a mandated three-year reevaluation (Dist. Ex. 5 at p. 1). At the time of the 2023 evaluation, the student was attending first grade at JCSE, a nonpublic school serving students with special needs (Parent Ex. C at p. 1; Dist. Ex. 5 at p. 1).[2]
On June 12, 2023, a CSE convened and developed the student's IEP with a projected implementation date of September 6, 2023 (Dist. Ex. 1 at pp. 1, 23). The June 2023 CSE recommended a 10-month program consisting of placement in a 12:1+1 special class in a non-specialized school and related services (id. at pp. 17-19). In particular, the CSE recommended that the student attend a 12:1+1 special class for 10 periods per week in English language arts (ELA), 10 periods per week in math, five periods per week in social studies, and five periods per week in science (id. at pp. 17-18). For related services, the CSE recommended two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, and one 30-minute session per week of individual occupational therapy (OT) (id. at p. 18).
On July 7, 2023, the district issued a prior written notice and a school location letter to the parent (Dist. Exs. 2 at pp. 1, 3; 3 at pp. 1-2). The prior written notice memorialized the recommendations of the June 2023 CSE, as well as the other placement options considered (compare Dist. Ex. 1 at pp. 1, 17-19, with Dist. Ex. 2 at p. 1).[3] The school location letter identified the public-school site to which the district assigned the student to receive the recommended special education programming (Dist. Ex. 3 at p. 1).
In a letter to the district dated August 22, 2023, the parents, through their attorney, expressed concerns with June 2023 IEP and the assigned public school (Parent Ex. B at pp. 1-2). The August 2023 letter indicated that, if the district failed to address their concerns, the parents would enroll the student at JCSE for the 2023-24 school year and seek public funding for the cost of such enrollment (id. at p. 2).
On September 6, 2023, the parents executed an enrollment contract with JCSE for the 2023-24 school year (Parent Ex. F at pp. 1-3). Under the contract's terms, the parents would be responsible for paying the annual tuition of $85,000.00 unless they obtained funding from the district (see id. at pp. 1-2). The contract included an addendum indicating that JCSE would provide the student with speech-language therapy and OT for an additional cost of $12,800.00 (see id. at p. 3). More specifically, JCSE would provide the student with three 30-minute sessions of speech-language therapy and one 30-minute session of OT each week for 40 weeks, at a rate of $80.00 per one-half hour (see id.).
During the 2023-24 school year, the student attended JCSE from September 6, 2023 through June 30, 2024 (Parent Exs. E; G ¶ 3).
A. Due Process Complaint Notice
In a due process complaint notice dated October 24, 2024, the parents, through their attorney, alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A at pp. 1-3, 5). The parents alleged procedural flaws in the development of the June 2023 IEP, including the CSE's failure to complete certain fields within the IEP, as well as substantive deficiencies in the recommended program (id. at pp. 1-4). Among other substantive deficiencies, the parents alleged that the CSE failed to include sufficient management needs in the IEP; the IEP goals were "inappropriate, insufficient, vague, and unmeasurable"; the recommended placement, namely a 12:1+1 special class, would not provide "the individualized attention, support, and instruction" that the student required; the CSE failed to recommend 1:1 or small group instruction, despite information indicating such a need; and the CSE failed to recommend social skills instruction, despite information indicating such a need (id. at pp. 3-4). In addition, the parents alleged that the assigned public school site was unsuitable for the student and could not have implemented the IEP as written (id. at pp. 4-5).[4], [5] As relief, the parents requested an order directing the district to fund the cost of the student's placement at JCSE for the 2023-24 school year (id. at p. 5).
B. Impartial Hearing Officer Decision
An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed to preside over the matter (see Tr. pp. 1, 3). Following two pre-hearing conferences, an impartial hearing convened on March 26, 2025 and concluded the same day (see Tr. pp. 1-140). Both parties presented various exhibits, each of which the IHO admitted into evidence (see Tr. pp. 29-35, 46; 111-12; Parent Exs. A-R; Dist. Exs. 1-11). The district's exhibits included affidavits in lieu of direct testimony from the principal of the assigned public school and the school psychologist who participated in the June 2023 CSE meeting, both of whom appeared for cross-examination during the hearing (see Tr. pp. 29-30, 46-51, 55-67; Dist. Exs. 10; 11). The parent's exhibits included affidavits in lieu of direct testimony from the student's mother, a program director for JCSE, and an administrative assistant at JCSE, each of whom appeared for cross-examination during the hearing (see Tr. pp. 74-110; Parent Exs. P; Q; R).
In a decision dated April 25, 2025, the IHO found that the district met its burden of proving that it offered the student a FAPE for the 2023-24 school year (IHO Decision at pp. 7-8). The IHO made the following findings regarding the CSE process: the district conducted a psychoeducational evaluation, which the CSE considered alongside reports from the student's school, and the CSE's failure to complete every field within the IEP, an omission which the school psychologist acknowledged, did not substantively deprive the student of a FAPE (id. at p. 7).[6], [7] As for the IEP's substance, the IHO found that the school psychologist provided a cogent explanation regarding the way in which the IEP addressed the student's management needs and that "[t]he IEP's goals [we]re specific, measurable, and address[ed] the student's needs" (id. at p. 8). Regarding the recommended placement specifically, the IHO noted testimony from the school psychologist that a 12:1+1 special class would provide the student with "highly intensive small group instruction from a special education teacher, support of a classroom paraprofessional during instructional periods, . . . greater opportunity for individual student/staff interaction, [and] intense focus on social skills, communication and activities [of] daily living," as well as "a variety of instructional methods such as repetition, prompting, redirection, scaffolding, and 1:1 instruction" (id. at p. 7 [internal quotation marks omitted]). Regarding the assigned public school site, the IHO found that its principal provided credible testimony refuting the parents' allegations (id. at p. 8). Specifically, the IHO noted testimony from the principal confirming that the assigned public school site could implement the student's IEP, denying that only one adult supervised 100 students in the school's lunchroom, denying that related services were conducted in a single room "with up to four providers" working "at the same time," and denying that the public school "only offer[ed] [seven] periods of ELA and [m]ath" (id. at pp. 4-5, 8).
Next, the IHO considered the appropriateness of JCSE as a unilateral placement and determined that, if she had not found that district offered the student a FAPE, she would have found that JCSE was an appropriate placement (IHO Decision at p. 8). The IHO reasoned that JCSE provided a "small classroom" with opportunities for individualized and multi-sensory instruction, the student received related services at JCSE, and the student made progress there (id.).
Finally, the IHO found that equitable considerations weighed against the parent, noting the lack of documentary evidence to corroborate the parent's alleged email outreach to the assigned public school site (IHO Decision at pp. 4, 8). The IHO also found that the record contained conflicting evidence regarding the cost of the student's attendance at JCSE (id. at p. 8). According to the IHO, the testimony from JCSE's administrative assistant "regarding the [contract] addendum and the provision of counseling" was not credible (id.). Therefore, the IHO determined that, if she had found the parent entitled to relief, she would have awarded $97,800.00, the cost to which the parents agreed and testified (id.).
Having found that the district offered the student a FAPE for the 2023-24 school year, the IHO denied the requested relief entirely (IHO Decision at p. 8).
IV. Appeal for State-Level Review
The parent appeals, and the district cross-appeals. The parties' familiarity with the issues raised in their respective pleadings is presumed and, therefore, the allegations and arguments will not be recited here in detail. Briefly, the parent contests the IHO's determination that the district offered the student a FAPE for the 2023-24 school year, as well as the IHO's determination that any award of funding should be limited to $97,800.00. The parent asks that an SRO reverse the IHO's FAPE determination and award $101,000.00, the full cost of the student's program at JCSE. The district asks that an SRO affirm the IHO's FAPE determination and deny relief entirely. Alternatively, the district contends that any award of funding should, consistent with the IHO's decision, reflect the amount indicated in the enrollment contract and the parent's affidavit. According to the district, however, any award of funding should reflect an additional reduction of five percent, the portion of the student's class schedule devoted to religious instruction.
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
Initially, I note that neither party has appealed the IHO's determination that the unilateral placement at JCSE provided an appropriate educational program for the student. That determination has, therefore, 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]).
A. FAPE
On appeal, the parent contends that the IHO erred in determining that the district offered the student a FAPE for the 2023-24 school year. The parent's request for review raises issues that generally fall into the following categories: the CSE process and the parent's right to participate therein;[9] the substantive adequacy of the June 2023 IEP; and the capacity of the assigned public school site to implement the student's IEP.[10] Upon an independent review of the hearing record and as discussed more fully below, I find that the district failed to establish the adequacy of the recommendations contained in the June 2023 IEP.
1. The Student's Needs
First, a review of the student's needs and then-current functioning, as known to the district when it developed the June 2023 IEP, will provide the context necessary to evaluate the adequacy of the district's recommendations. To that end, the following materials, which were available to the district and considered in developing the June 2023 IEP, are included in the hearing record: a February 2023 psychoeducational evaluation report; a February 2023 progress report from the student's classroom teacher; a February 2023 progress report from the student's speech-language therapist; and a February 2023 progress report from the student's occupational therapist (see Dist. Exs. 1 at pp. 1-6; 2 at p. 1; 5-8). The present levels of performance section of the June 2023 IEP reflects information derived from the aforementioned reports, as well as input provided by the parent and the student's classroom teacher during the CSE meeting.
The June 2023 IEP reported the following results of the student's 2023 psychoeducational evaluation.
As measured by the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V), the student had a full-scale IQ (FSIQ) of 75, a score falling within the "Very Low" range (Dist. Exs. 1 at p. 1; 5 at pp. 2-3).[11] The student's composite score of 92 on the WISC-V verbal comprehension index fell within the "Average" range, but her fluid reasoning index score of 72 fell within the "Very Low" range (Dist. Exs. 1 at p. 1; 5 at p. 3). Administration of the Woodcock-Johnson Tests of Achievement-Fourth Edition (WJ-IV) to measure the student's reading performance yielded results within the "Very Low" range (Dist. Exs. 1 at pp. 1-2; 5 at p. 5). She scored within the first percentile on letter-word identification skills, did not identify "most" letters, did not know letter sounds, did not read any stand-alone words, and her reading comprehension score fell within the fourth percentile (Dist. Exs. 1 at p. 2; 5 at pp. 5-6). On the writing component of the WJ-IV, the student could not write all of the letters requested, could not spell dictated words, and scored within the second percentile (Dist. Exs. 1 at p. 2; 5 at p. 6). When asked to write her name, the student spelled it backwards and in Hebrew (see Dist. Exs. 1 at p. 2; 5 at p. 6). On the component of the WJ-IV that assessed the student's "ability to solve math word problems," she "successfully solved word problems with the use of visual aids" and scored within the 25th percentile, but the student scored within the third percentile "[o]n tasks assessing [her] ability to perform mathematical computations[] using pencil and paper" (Dist. Exs. 1 at p. 3; 5 at pp. 6-7). The student did not recognize money "and was unable to complete tasks involving money" (Dist. Exs. 1 at p. 3; 5 at p. 6).
The June 2023 IEP also reported the following information, derived from progress reports or obtained during the CSE meeting, regarding the student's academic performance, her social/emotional functioning, and her physical development (see Dist. Exs. 1 at pp. 3-5; 6-8).
The student read at a kindergarten level (Dist. Ex. 1 at pp. 3, 5). She student knew all letters and letter sounds but "ha[d] difficulty identifying the final" sound in a word (id.). According to the IEP, the student could rhyme, sequence a story, and "answer basic questions about a story," but she needed 1:1 reading instruction to stay focused and motivated (id.).
The student performed at a kindergarten level in math as well (Dist. Ex. 1 at pp. 3, 5). She counted to 40, identified and sequenced numbers 1-20, and completed simple patterns (id. at p. 5). The student knew greater/less than, and she was learning money concepts (id.). The student's math instruction was provided in a group of two "because she [wa]s easily distracted," but she performed well when focused (id.).
As for speech and language skills, the student exhibited "receptive and expressive language delays, limited phonemic awareness, and articulation errors" (Dist. Ex. 1 at p. 4). The student's "language delays include[d] weaknesses in syntax, vocabulary, retelling stories, and categorization"; her "phonemic awareness delays include[d] differentiating between voiced and voiceless sounds and identifying initial and final sounds;" and her "articulation errors include[d] voicing the voiceless sounds of /f,k,p,s,t/, deaffrication of /sh/ and /ch/ and /j/, and substitution of f/th" (id.). The student's expressive language was "terse" with "weak vocabulary and poor sentence structure" (id.).
With regard to social/emotional functioning, the student was described as happy and engaging, though she exhibited social skills deficits and required "teacher support and instruction to navigate social interactions" (Dist. Ex. 1 at p. 5).[12] The student did "not always understand instructions," directions, or cause/effect (id. at p. 6). At times, she could be attention seeking, impulsive, and/or immature (id.). The student "enjoy[ed] interacting with her peers," and she played with other girls at school; however, she was "often very silly and loud" when engaging with peers, requiring "teacher intervention to help her stay calm and regulated" (id. at pp. 5-6). The student demonstrated "a limited play schema," often playing with the same toys "and repeat[ing] the same basic play scripts" (id. at p. 5). The student initiated conversation but did not maintain conversation (id. at p. 6). She enjoyed socializing but needed modeling during free play (id.).
As for her physical development, the student exhibited "delays in visual perceptual skills and upper extremity weakness" (Dist. Ex. 1 at p. 6).[13] The student required occasional verbal and/or physical cues to open "buttons on a board," "remember a three-shape sequence," "locate 10/10 objects in a beginner level picture find," and "cut a 3[-inch] complex shape with less than four deviations from the line" (id.). She could "draw horizontal and vertical lines and [wa]s working on drawing diagonals" (id.).
The June 2023 IEP identified the following strategies to support the student's management needs: "breaking down information into small parts"; "teaching information in a hierarchical manner while utilizing a multisensory approach"; using "auditory and visual stimuli together whenever possible"' clarifying and paraphrasing new information; and providing preferential seating (Dist. Ex. 1 at p. 6).
2. June 2023 IEP
The parent's appeal presents the following challenges to substantive adequacy of the June 2023 IEP: "[t]he IEP goals were generic, insufficiently individualized, and" failed to target the student's unique needs (Req. for Rev. ¶ 18);[14] the IEP lacked recommendations for behavioral and social/emotional supports, pragmatic language interventions, and/or sensory regulation strategies;[15] and the recommendation for placement in a 12:1+1 special class was inappropriate, as the student required a smaller class setting with more 1:1 and small group instruction. Most notable among the parent's expressed concerns is the omission of a specific recommendation for 1:1 instruction, particularly in reading, from the June 2023 IEP. The parent argues that, to cure the IEP's deficiency, "[t]he IHO relied on impermissible retrospective testimony" from the school psychologist "that additional supports 'could' or 'would' have been provided" (id. ¶ 15). The district argues that the school psychologist did not present impermissible retrospective testimony but, rather, described how the IEP could have been implemented as written.
In accordance with the February 2023 teacher report, the student's June 2023 IEP reflected a need for 1:1 reading instruction (compare Dist. Ex. 7 at pp. 2-3, with Dist. Ex. 1 at p. 3). Specifically, the IEP stated that the student's "reading instruction must be provided 1:1 in order to keep [the student] focused and motivated" (Dist. Ex. 1 at p. 3). The IEP further stated that 1:1 learning sessions enabled the student "to progress in her reading ability" (id.). Despite identifying the student's need for 1:1 instruction in reading, the June 2023 CSE did not recommend that 1:1 instruction in reading be provided to the student either as a strategy to support her management needs or as a separate service (id. at pp. 6, 17-18).
In finding that the district offered the student a FAPE, the IHO relied, in part, on testimony from the district school psychologist who participated in the June 2023 CSE meeting (see IHO Decision at pp. 7-8; Tr. pp. 53, 56; Dist. Ex. 11 ¶¶ 1-2, 5). In her affidavit in lieu of direct testimony, the school psychologist stated that the recommended placement, a 12:1+1 special class, would have used "a variety of instructional methods, such as repetition, prompting, redirection, scaffolding, and 1:1 instruction" (Dist. Ex. 11 ¶ 11).[16] Upon cross-examination, the school psychologist acknowledged that "reading was one of [the student's] greatest areas of struggle" (Tr. pp. 63-64). When asked about 1:1 reading instruction, the school psychologist explained that the student could have received such an intervention in the 12:1+1 special class, as the setting allows "more opportunity for individualized instruction" in accordance with each student's individual needs (Tr. pp. 64-66, 72-73). However, the school psychologist admitted that the teacher would not be required to implement an intervention that was not mandated by or included in the student's IEP (Tr. pp. 65-66).
Consistent with the parent's argument, the district may not rely on after-the-fact testimony to "rehabilitate a deficient IEP"(R.E., 694 F.3d at 186-88; see also E.M. v. New York City Dep't of Educ., 758 F.3d 442, 462 [2d Cir. 2014]). As pertaining to "the adequacy of an IEP, both parties are limited to discussing the placement and services specified in the written plan and . . . reasonably known to the parties at the time of the placement decision" (R.E., 694 F.3d at 187). Testimony "that explains or justifies the services listed in the IEP" is permissible and may be considered, but the district "may not introduce testimony that a different teaching method, not mentioned in the IEP, would have been used" (R.E., 694 F.3d at 186-87; see also E.M., 758 F.3d at 462; cf. P.C. v. Rye City Sch. Dist., 232 F. Supp. 3d 394, 416 [S.D.N.Y. 2017] [explaining that testimony that provided a "few additional details" about the CSE's recommendations could be considered where the parents knew the characteristics of the recommended program before making their placement decision.]).[17] Thus, in assessing the adequacy of the June 2023 IEP, the school psychologist's testimony that the student could have received 1:1 reading instruction, as needed, may not be considered, especially given her concession that it would not be required if not specified in the IEP (Tr. pp. 64-66, 72-73; Dist. Ex. 11 ¶ 11; see, e.g., Application of the Bd. of Educ., Appeal No. 24-529 ["[T]estimony that the student would have been in a more-supportive setting than the recommended 8:1+2 special class," as that "class was under-enrolled at the time of the . . . CSE meeting," "was retrospective and could not be relied upon to rehabilitate the deficient IEP."]; Application of a Student with a Disability, Appeal No. 23-221 [finding that the IHO erred in relying on testimony from a district school psychologist "that the student would have received ABA-type services" where the IEP contained no provision requiring such services]; Application of a Student with a Disability, Appeal No. 22-001 [Where "the district intended to meet its FAPE obligations to the student through the provision of AIS and learning lab," "the district was required to include these services on the student's IEP."]).
While the district argues that the CSE was not required to adopt a private recommendation for 1:1 instruction, the fact remains that the IEP expressed the student's need for 1:1 instruction "to progress in her reading ability," and the CSE did not recommend such instruction (Dist. Exs. 1 at pp. 3, 6, 17-18; 7 at pp. 2-3). I therefore find that the district did not meet its burden of proving the adequacy of its recommendations (see, e.g., Application of the Bd. of Educ., Appeal No. 17-007 [finding that the district denied the student a FAPE where the subject IEP described specific reading deficits but did not include interventions to remediate those deficits]; cf. Application of a Student with a Disability, Appeal No., Appeal No. 25-097 [finding that the omission of a specific methodology from the student's IEP did not render the program deficient where "there was no clear evaluative consensus that the student required" that methodology]). The parent is correct that the IHO impermissibly relied on after-the-fact testimony that went beyond merely explaining the terms of the IEP and instead described a level of intervention that went beyond the terms of the IEP when concluding that the district offered the student a FAPE. Any special class described in section 200.6 of the Commissioner's regulations may increase the likelihood that a student will receive individualized instruction. However, it goes too far—particularly in the context of reading instruction—to assume that placement in a 12:1+1 special class automatically equates to the provision of 1:1 specialized reading instruction for every student who may require it. Whether a particular student's needs are met through such a particular placement is a fact-specific inquiry. While a 12:1+1 class may be sufficient to convey some sense of individualized instruction for student's in some circumstances without further specification in the IEP, where the data before the CSE reflects that the student needs a particular form or higher intensity of individualized reading instruction, reliance on the special class ratio alone will often not be enough. In this case it was not, and the evidence in the hearing record that may be permissibly relied upon under the rule in R.E. does not support the IHO's determination that the June 2023 IEP offered the student a FAPE.
Given my determination above, it is not necessary to address the additional grounds asserted in the parent's request for review to support her claim that the district denied the student a FAPE for the 2023-24 school year, including those pertaining to the CSE process and the assigned public school.
B. Equitable Considerations
1. Financial Obligation
As stated above, the parties dispute the amount to be awarded as relief. To support her request for an award of $101,000.00, the parent points to the March 2025 affidavit of an administrative assistant at JCSE and argues that the amount reflected in the September 2023 enrollment contract and addendum did not account for the cost of counseling services.[18] According to the parent, the IHO erred in alternatively awarding $97,800.00 based on an unsupported credibility determination. The district contends that the IHO's determination was proper, as the hearing record lacks credible evidence that the student received counseling services for the entire school year. The district points to the administrative assistant's original affidavit from February 2025, which indicated a total cost of $97,800.00, and notes that counseling services were omitted from both the contract addendum and the parent's affidavit.
Under the Burlington/Carter framework, proof of an actual financial risk incurred by parents is a prerequisite to obtaining funding of the cost of a student's unilateral placement (Town of Burlington v. Dep't of Educ. for Com. of Mass., 736 F.2d 773, 798 [1st Cir. 1984], aff'd, Burlington, 471 U.S. at 374 [stating that "financial risk is a sufficient deterrent to a hasty or ill-considered transfer" to private schooling without the consent of the school district]; see also Forest Grove Sch. Dist., 557 U.S. at 247 [citing criteria for tuition reimbursement, as well as the requirement of parents' financial risk, as factors that keep "the incidence of private-school placement at public expense . . . quite small"]). Parents must present evidence of their financial obligation and may not seek funding based on "nothing more than their say-so" (Moonsammy v. Banks [Moonsammy II], 2025 WL 733254, at *8 [S.D.N.Y. Mar. 7, 2025]).
As indicated in the IHO's decision, the hearing record contains conflicting information regarding the cost of the student's program at JCSE for the 2023-24 school year (IHO Decision at p. 8).[19]
The September 2023 enrollment contract and addendum do not reflect the amount requested by the parent as relief (see Parent Ex. F at pp. 1-3). Nor do they reflect an agreement that JCSE would provide counseling to the student during the 2023-24 school year (id. at p. 3). Instead, they establish the parent's obligation to pay JCSE a total of $97,800.00 for the 2023-24 school year, including $85,000.00 for tuition and $12,800.00 for related services, and an agreement that JCSE would provide the related services of speech-language therapy and OT (id. at pp. 1-3). Consistent with the September 2023 contract and addendum, both the parent's testimony via a March 2025 affidavit and the administrative assistant's testimony via a February 2025 affidavit reflect the parent's indebtedness to JCSE in the amount of $97,800.00 (Parent Exs. G; Q ¶ 19).
In a second affidavit, affirmed in March 2025, the administrative assistant testified that the student received counseling at an annual cost of $3,200.00, and, thus, the total annual cost of the student's program at JCSE was $101,000.00 (Parent Ex. R ¶¶ 4-5). Upon cross-examination, the assistant explained that the September 2023 contract addendum omitted the cost of the student's counseling services, characterizing the omission as a clerical error (Tr. pp. 104-07). The assistant also stated that the parent signed a new addendum, but she could not say with certainty when the error was realized or when the new addendum was signed (see Tr. pp. 108-09).
Having found that the "[a]ssistant's testimony regarding the addendum and the provision of counseling" was not credible, the IHO limited the parent's relief, if any, to $97,800.00 (IHO Decision at p. 8). An SRO should give deference to the credibility findings of an IHO "unless the non-testimonial, extrinsic evidence in the hearing record would justify a contrary conclusion or unless the hearing record[,] read in its entirety[,] would compel a contrary conclusion" (Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; see also P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076).
In this case, the hearing record includes documentary evidence indicating that the student received counseling from JCSE during the 2023-24 school year, namely, a counseling progress report, prepared by the provider in February 2024, and a separate document tracking the student's progress in meeting her counseling goals (see Parent Exs. K; O). On the other hand, the parent's testimony made no mention of counseling, and the new addendum referenced in the assistant's hearing testimony is not included in the hearing record (Tr. pp. 97-101, 108-109; Parent Ex. Q). Given the absence of evidence corroborating either the cost of counseling from JCSE or the parent's agreement to pay for such services, I defer to the IHO's determination (see generallyE.M., 758 F.3d at 458 [holding that an enrollment contract was enforceable, although certain portions were left blank, as "[t]he contract's essential terms—namely, the educational services to be provided and the amount of tuition—were plainly set out in the written agreement"]; Express Indus. & Terminal Corp. v. N.Y. State Dep't of Transp., 93 N.Y.2d 584, 590 [1999] [While "a party may agree to be bound to a contract even where a material term is left open," "there must be sufficient evidence that both parties intended that arrangement" and an objective means for supplying the missing terms.]; 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91 [1991]).
Accordingly, the award of relief in this matter will reflect a finding that the parent incurred an obligation to pay JCSE $97,800.00 for the student's tuition and services for the 2023-24 school year.
2. Religious Instruction
Finally, the district contends that any award of funding should be reduced by five percent based on the portion of the student's school day devoted to religious instruction. According to the district, instruction of a religious nature was in excess of that which the district would have been required to provide as part of a FAPE. The parent's position on this matter is unknown, as the parent has not interposed a reply to the district's answer and cross-appeal.
Under the Burlington/Carter framework, the final criterion for an award of funding is that the parent's 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 funding 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., 758 F.3d at 461 [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. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 [2d Cir. 2014][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"]).
Among the equitable factors that may warrant a funding reduction is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]). An IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100). More specifically, while parents are entitled to funding for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA. To the contrary, a district is "merely require[d] 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 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). Accordingly, while a parent should not be denied funding for an appropriate program because fact that the program provides benefits in addition to those required for the student to receive educational benefits, a reduction from full funding may be considered where a unilateral placement provides services beyond those required to address a student's educational needs (L.K., 674 Fed. App'x at 101; see C.B. v. Garden Grove Unified Sch. Dist., 635 F. 3d 1155, 1160 [9th Cir. 2011] [indicating that "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced"]; Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 [5th Cir. 1986] ["The Burlington rule is not so narrow as to permit reimbursement only when the [unilateral] placement chosen by the parent is found to be the exact proper placement required under the Act. Conversely, when [the student] was at the [unilateral placement], he may have received more 'benefit' than the EAHCA [the predecessor statute to the IDEA] requires"]).
Here, the district argues for a reduction based on the student's class schedule, which indicated that prayer and Bible studies accounted for less than five percent of the student's schooltime (see Parent Ex. D). However, the district provides no support for the proposition that the subject matter of a particular class period can cause the class to be treated as a segregable special education service for these purposes, rather than the type of feature that is "inextricably linked to the substitution" of a private program for a public one (Bd. of Educ. of City Sch. Dist. of City of New York v. Gustafson, 2002 WL 313798, at *7 [S.D.N.Y. Feb. 27, 2002] [finding features such as small class size or greater personal attention were not segregable]).[20] Instead, the authority relating to excessive services indicates that services are deemed segregable, most frequently, in the following scenarios: where the services are delivered in a separate location or by a provider not affiliated with the main tuition-based program; and/or where the costs of the services are itemized or separately billed (see, e.g., Application of a Student with a Disability, 23-130; Application of a Student with a Disability, Appeal No. 21-086; Application of a Student with a Disability, Appeal No. 14-071).
Moreover, the hearing record provides no concrete information as to the school's method for financing its activities and no indication that the cost of any of the student's classes would equate to funding for any other class. Hence, there is no reasoned way to know the portion of the student's tuition, if any, that would cover the time devoted to religious instruction. Even if the proportion of the student's tuition applied to religious instruction could plausibly be calculated based solely on the student's schedule, questions would still remain regarding the educational benefits that the student may have received through religious instruction, beyond the religious aspect, and/or the incorporation of religion into other aspects of the school day. Contrary to the district's contention, equity supports full funding, as the scenario presented in this case "does not permit a fair approximation of the value of the" nonsecular components of the student's program compared to the program overall (Gustafson, 2002 WL 313798, at *7).[21]
Accordingly, the district will be ordered to fund the full cost of the student's tuition and services for the 2023-24 school year, as indicated in the September 2023 enrollment contract and addendum, by direct payment to JCSE (Parent Ex. F at pp. 1-3; see, e.g., Application of a Student with a Disability, 25-207 [ordering full tuition funding despite the district's argument that "the portion of the school day during which the student received religious instruction exceeded" the requirements for a FAPE]; Application of a Student with a Disability, Appeal No. 25-159; Application of a Student with a Disability, Appeal No. 25-034).[22]
VII. Conclusion
In summary, review of the hearing record leads me to reach the following conclusions: the IHO erred in determining that the June 2023 IEP offered the student a FAPE; the parents are entitled to an award of $97,800.00, the cost of the student's program at JCSE for the 2023-24 school year, as indicated in the September 2023 enrollment contract and addendum; and there is no basis for a reduction in funding to account for portions of the student's schooltime devoted to religious instruction.
THE CROSS-APPEAL IS DISMISSED.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO decision's, dated April 25, 2025, is modified by reversing those portions which found that the district offered the student a FAPE for the 2023-24 school year; and
IT IS FURTHER ORDERED that the district shall fund the cost of the student's program for the 2023-24 school year, in the amount of $97,800.00, by direct payment to JCSE.
Footnotes
[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[2] JCSE has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[3] According to the prior written notice, in developing the student's IEP, the June 2023 CSE used the February 2023 psychoeducational evaluation report (Dist. Ex. 2 at p. 1; see Dist. Ex. 5 at pp. 1, 8).
[4] The parents alleged that they attempted to arrange a visit to the assigned public school upon receiving the school location letter, and, after many calls, they toured the school on October 18, 2023, "after the school year had already begun" (Parent Ex. A at p. 4).
[5] According to the parents, the assigned public school was unsuitable for the following reasons: the student would be placed "in a classroom with four other children with behavioral issues," thus negatively impacting her behavior; the student would have inadequate adult supervision during lunch, as "one supervisor would oversee about 100 students from four different classes simultaneously"; the student would have difficulty concentrating and would not "receive the benefit of her services" because the assigned "school conduct[ed] all related service sessions in a single room, often with up to four providers working simultaneously"; and the assigned school would only provide seven periods per week of ELA and math, although the student's IEP mandated 10 periods (Parent Ex. A at pp. 4-5).
[6] The IHO noted that, although an initial evaluation must include a classroom observation and social history, those are not required upon reevaluation (IHO Decision at p. 7).
[7] The IHO characterized the blank fields within the IEP as "administrative errors" (IHO Decision at p. 7).
[8] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[9] According to the parent, "[t]he IHO erred in downplaying critical omissions in the IEP" which "impeded the parent's ability to evaluate the proposed program, limited participation, and deprived the student of educational benefit," thus amounting to a deprivation of a FAPE (Req. for Rev. ¶ 6). Specifically, the parent points to the "special factors" section of the IEP, which was not fully completed, and the "promotion criteria" section of the IEP, which was left entirely blank. Additionally, the parent contends that the district failed to consider her request for 1:1 and small group instruction and failed to provide an explanation in a prior written notice, thus denying the parent meaningful participation.
[10] Although the parent's request for review broadly asserts that the IHO erred in finding that the assigned public school site could implement the IEP, it does not reassert the specific allegations contained in the due process complaint notice regarding the school's suitability or lack thereof (compare Req. for Rev. ¶ 5, with Due Process Compl. Notice at pp. 4-5).
[11] The June 2023 IEP inconsistently described the student's FISQ score of 75 as within the "Average" range and as within the "Very Low" range (Dist. Ex. 1 at p.1). According to the February 2023 psychoeducational evaluation report, the student's FSIQ of 75 fell within the "Very Low" range (Dist. Ex. 5 at pp. 2-3).
[12] The parent expressed concern about the student's behavior at home but indicated that teachers had "not raised any concerns about her behavior at school" (Dist. Ex. 1 at p. 5).
[13] According to the parent, the student was "in overall good health," with her vision and hearing "intact," although she tired easily and may have had "low iron" (District. Ex. 1 at p. 6).
[14] An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 CFR 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 CFR 300.320[a][3]). Upon review, the June 2023 IEP included annual goals in the areas of cognition and attention, ELA, math, speech-language skills, and fine motor skills, consistent with the student's needs as described in the present levels of performance discussed above (see Dist. Ex. 1 at pp. 1-6, 8-16). The IEP goals generally included evaluative criteria (i.e., 80 percent accuracy), and each annual goal identified evaluation procedures (i.e., teacher/provider observation) and schedules to measure progress (i.e., one time per quarter) (id. at pp. 8-16).
[15] In her affidavit in lieu of direct testimony, the district school psychologist testified that the "Special Factors" section of the IEP was "inadvertently left blank" and that "the evaluation, assessments, progress reports, and information gathered at the [June 2023 CSE] meeting did not indicate that [the student] needed positive behavioral interventions[] [or] a behavior intervention plan" (Dist. Ex. 11 ¶ 8). The evidence in the hearing record shows that JCSE implemented a token system in the classroom to address the student's attention deficits, impulsiveness, and slow work pace (Tr. pp. 86-87; Dist. Ex. 7 at p. 1); however, the information before the June 2023 CSE did not reflect behavioral needs to the extent that the student required a functional behavioral assessment (FBA) or behavioral intervention plan (BIP) (see Dist. Exs. 1 at p. 5; 5 at p. 1; 6; 7 at pp. 1-2; 8).
[16] State regulation provides that "the maximum class size for special classes containing students whose management needs interfere with the instructional process, to the extent that an additional adult is needed within the classroom to assist in the instruction of such students, shall not exceed 12 students, with one or more supplementary school personnel assigned to each class during periods of instruction" (8 NYCRR 200.6[h][4][i]).
[17] The prohibition against retrospective testimony reflects the fact that parents "have only the IEP to rely on" when "choos[ing] whether to accept the school district recommendation or to place the child elsewhere" (R.E., 694 F.3d at 186).
[18] The parent further argues that she signed a corrected addendum to reflect the cost of the student's program, inclusive of counseling services, and, while she testified that she agreed to the original contracted amount, she did not state that the September 2023 contract reflected the program's total cost.
[19] The hearing record includes the following evidence pertaining to the parent's financial obligation: a September 2023 enrollment contract and addendum (Parent Exhibit F); testimony from the parent via a March 2025 affidavit (Parent Ex. Q at p. 5); testimony from an administrative assistant at JCSE via a February 2025 affidavit (Parent Ex. G); testimony from the same assistant via a second affidavit, affirmed in March 2025 (Parent Ex. R); and live testimony from the assistant upon cross-examination (Tr. pp. 102-10).
[20] To support its request for a five percent funding reduction, the district cites prior decisions of SROs in Application of a Student with a Disability, Appeal No. 23-160 and Application of the Dep't of Educ., Appeal No. 22-035. Although Application of a Student with a Disability, Appeal No. 23-160 and Application of the Dep't of Educ., Appeal No. 22-035 are both cases in which an IHO proportionally reduced the requested relief based on the nonsecular components of the student's class schedule, neither decision supports the district's argument here, as they are both cases in which the IHO's funding reduction was not reviewed on appeal.
[21] The district has not cited Constitutional principles in support of its request for a funding reduction. Nevertheless, I note that the current trend in case law on the issue of public funding for religious instruction permits district funding of nonpublic school tuition without reduction for aspects of religious instruction (see Application of a Student with a Disability, Appeal No. 23-133 [laying out the relevant caselaw through the Supreme Court's decision in Carson v. Makin, 596 U.S. 767 (2022)]). The Supreme Court, has directly held that the IDEA is a neutral program that distributes benefits to any child qualifying with a disability without regard to whether the school the child attends is sectarian or non-sectarian (Zobrest v. Calatina Foothills Sch. Dist., 509 U.S. 1, 10 [1993]). In the specific context of tuition reimbursement, some district courts in other states have found that full tuition reimbursement is appropriate under the Establishment Clause (Matthew J. v. Mass. Dep't of Educ., 989 F. Supp. 380 [D. Mass. 1998]; Christen G. v. Lower Merion Sch. Dist., 919 F. Supp. 793 [E.D. Pa. 1996]; see Edison Twp. Bd. of Educ. v. F.S., 2017 WL 6627415, at *7 [D.N.J. Oct. 27, 2017] [noting that reimbursement of the funds was to the parents, not a religious school, and that "the sectarian nature of an appropriate school does not preclude reimbursement"], adopted at, 2017 WL 6626316 [D.N.J. Dec. 27, 2017]; R.S. v. Somerville Bd. of Educ., 2011 WL 32521, at *10 [D.N.J. Jan. 5, 2011] [finding that, if an appropriate unilateral placement is sectarian, "neither the IDEA nor the Establishment Clause is violated when the court orders reimbursement to the parents" but noting that a district placement might violate the Establishment Clause]; L.M. v. Evesham Twp. Bd. of Educ., 256 F. Supp. 2d 290, 303 [D.N.J. 2003] [noting that application of the endorsement test would not bar reimbursement of tuition for a unilateral placement in a sectarian school under the Establishment Clause]; see also Bd. of Educ. of Paxton-Buckley-Loda Unit Sch. Dist. No. 10 v. Jeff S., 184 F. Supp. 2d 790, 804 [C.D. Ill. 2002]; Doolittle v. Meridian Joint Sch. Dist. No. 2, 128 Idaho 805, 812-13 [1996]).
[22] The evidence in the hearing record indicates that, as of March 2025, the parent had made no payments to JCSE toward the cost of the student's tuition and services for the 2023-24 school year (Parent Exs. G ¶ 4; Q ¶ 14; R ¶ 5).