STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-360
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 Lauren A. Baum, PC, attorneys for petitioners, by Kristen M. Chambers, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Nicole Daley, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioners (the parents) appeal from the decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) fund the costs of their son's placement at The Hamaspik School (Hamaspik) for the 2022-23 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]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The student has received a diagnosis of Down Syndrome and been provided with special education services from a young age (Parent Ex. P ¶¶ 2-4). During the 2020-21 school year, the student attended a 12:1+1 special class program in a district public school (id. ¶ 5). On January 7, 2021, a CSE convened, determined that the student was eligible for special education as a student with an intellectual disability, and developed an IEP for the student with a projected implementation date of January 7, 2021 (Dist. Ex. 1 at pp. 1, 18).[1] The January 2021 CSE recommended that the student attend a 12:1+1 special class placement for all core subjects,[2] and that he receive three 30-minute sessions per week of individual occupational therapy (OT) to be delivered in English, three 30-minute sessions per week of individual speech-language therapy to be delivered in Yiddish, and part-time, daily, individual paraprofessional services for toileting, all on a 10-month school year basis (id. at pp. 13-14).
On January 20, 2021, the district issued a prior written notice (Dist. Ex. 2 at p. 1). The prior written notice memorialized the recommendations of the January 2021 CSE, as well as the other placement options considered (id. at pp. 1, 2).
The student attended Hamaspik for the 2021-22 school year (Mar. 20, 2025 Tr. p. 39; see Parent Ex. P ¶ 6).[3]
On August 22, 2022, the parents sent the district a 10-day notice, noting that a CSE had not convened to develop an IEP for the student for the 2022-23 school year (Parent Ex. C at p. 1). The 10-day notice also expressed the parents' intent to place the student at Hamaspik and seek reimbursement for the cost of that placement from the district (id.).
The student attended Hamaspik for the 2022-23 school year (see Parent Ex. P ¶ 10). On November 22, 2022, the parents signed a contract with Hamaspik for the student's attendance for the 2022-23 school year (Parent Ex. R).
A. Due Process Complaint Notice
In a due process complaint notice dated June 28, 2024, the parents alleged that a CSE did not convene or develop an IEP for the student, resulting in a denial of a free appropriate public education (FAPE) for the 2022-23 school year (Parent Ex. A at pp. 1-2). The parents also alleged that the district did not provide them with prior written notice and did not offer the student a public school placement for that school year (id. at p. 1). As relief, the parents requested a finding that the district failed to offer the student a FAPE and funding of the student's tuition at Hamaspik for the 2022-23 school year (id. at p. 2).
B. Impartial Hearing Officer Decision
After two prehearing conferences, an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on March 20, 2025 (see Tr. pp. 1-17; Mar. 20, 2025 Tr. pp. 1-59).[4]
In a decision dated May 6, 2025, the IHO found that the district failed to meet its burden to show that it offered the student a FAPE for the 2022-23 school year because the district did not present a case, and review of the hearing record supported a finding that the district denied the student a FAPE for the 2022-23 school year (IHO Decision at pp. 4-5).
Next, the IHO found that the parents failed to meet their burden of proof regarding the appropriateness of the student's unilateral placement at Hamaspik for the 2022-23 school year (IHO Decision at p. 6). The IHO found that the student's teacher provided "vague and general" testimony regarding Hamaspik's academic curriculum and that the teacher did not explain the "lack of academic courses in [the] [s]tudent's schedule" (id. at p. 5). The IHO also expressed concern regarding the teacher's certification for the 2022-23 school year and that the student's paraprofessional only had a high school diploma (id.). The IHO found that it was unclear how Hamaspik's program was tailored to meet the student's unique educational needs, that the student's progress reports generally discussed what the student was working on but "lacked specificity," and that there was "little to no discussion about the methodologies being used to address [the] [s]tudent's needs" (id. at pp. 5-6). According to the IHO, "[t]he testimony and the evidence established that the program for [the] [s]tudent at [Hamaspik] for the 2022-23 school year was not reasonably calculated to enable [the] [s]tudent to receive educational benefit" (id. at p. 6). The IHO also found that the student did not make progress and that the program at Hamaspik did not meet the student's unique needs (id.).
The IHO ordered a CSE to convene and develop an IEP for the student within 15 days of the order (IHO Decision at p. 6).
IV. Appeal for State-Level Review
The parents appeal the IHO's decision, arguing that the IHO erred in finding that Hamaspik was not an appropriate unilateral placement for the student for the 2022-23 school year. Specifically, the parents assert that the IHO erred in finding that the student's teacher and paraprofessional lacked the relevant credentials to provide services to the student. Additionally, the parents claim that the program at Hamaspik was specifically tailored to address the student's unique needs and that the student made progress during the 2022-23 school year. Finally, the parents assert that the IHO erred in not making a finding regarding equitable considerations and argue that equitable considerations favor the parents. As relief, the parents request reversal of the IHO's decision and an order directing the district to reimburse the parents for the cost of the student's tuition at Hamaspik for the 2022-23 school year.
In an answer, the district argues that the parents' request for review should be dismissed because it was untimely. In the alternative, the district argues that the IHO's decision regarding the appropriateness of Hamaspik should be affirmed.
In a reply to the district's answer, the parents assert that the request for review is timely.[5]
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 generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F, 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130[citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1 [cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4 [d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[6]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ, 471 U.S. 359, 369-70 [1985]; R.E, 694 F.3d at 184-85; T.P, 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412 [a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
A. Unilateral Placement
Initially, I note that the district does not cross-appeal from the IHO's determination that the district failed to offer the student a FAPE for the 2022-23 school year (see IHO Decision at p. 5). Accordingly, this finding 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]).
Turning to the parents' appeal regarding the appropriateness of the student's unilateral placement at Hamaspik, 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. The Student's Needs
A brief discussion of the student's needs provides context for the issue to be resolved, namely, whether Hamaspik delivered specially designed instruction to the student to address his unique needs during the 2022-23 school year.
According to the January 2021 IEP, the student exhibited global delays in cognitive, adaptive, academic, language, and motor skills (see Dist. Ex. 1 at pp. 1-3). At that time, the student was in a third grade special class working on learning initial consonant and short vowel sounds and sight word vocabulary in reading, and math readiness skills such as recognizing numbers 1-50, opposites, and shapes (id. at pp. 1, 2). The student presented with "significant receptive and expressive language deficits," characterized by the emerging ability to answer simple "wh" questions about pictures and comprehend basic spatial and descriptive concepts; and use gestures, single words/approximations, and some two-word combinations to communicate (id. at p. 1). Additionally, the student exhibited oral motor and articulation deficits and could be "difficult to understand without a shared context" (id.). Socially, the student liked to play near other students and was working on "increasing productive play time" independently and with peers (id. at p. 2). Motorically the student was described as exhibiting "generalized weakness and low tone with joint laxity," with delays in "perceptual/visual motor and fine motor skills" (id.). The student also presented with a short attention span, sensory seeking behaviors "especially in the areas of proprioceptive and tactile stimulation," and toileting needs (id. at pp. 2, 3). The IEP indicated that the student "require[d] a small bilingual Yiddish 12:1[+]1 classroom setting" together with adapted physical education, OT, speech-language therapy, and part-time paraprofessional services for toileting (id. at pp. 3, 13-14).
2. Hamaspik
According to the Hamaspik program description, the school was "for children with Down Syndrome," and many students were "bilingual-Yiddish" (Parent Ex. D at p. 1). Instruction was delivered in "a combination of group learning and small group instruction with a maximum of [three] students in small learning groups," and the school offered both individual and group sessions of OT, physical therapy (PT), and speech-language therapy, twice daily sensory motor movement groups, and 1:1 paraprofessional services as needed (id. at pp. 1, 3, 4). The evidence indicated that the student's class was comprised of other students with Down Syndrome in a 6:1+3 ratio and instruction occurred as a whole class and in small groups (Parent Exs. F at p. 1; G at p. 1; Q ¶¶ 8, 10).
Regarding the IHO's concern that the student's teacher was not certified during the 2022-23 school year, the parents' argument on appeal that the private school need not employ certified special education teachers is correct (Carter, 510 U.S. at 13-14).[7] Regarding the IHO's concern that the student's "paraprofessionals only had a high school diploma," according to the student's Hamaspik teacher, each paraprofessional had "previous experience working with students with special needs" and received instruction regarding implementation of the student's behavior plan (Mar. 20, 2025 Tr. pp. 15-16, 31-32; Parent Ex. Q ¶¶ 1, 9, 10, 14; see IHO Decision at p. 5). The suggestion that the paraprofessionals lacked sufficient qualifications to support the teacher's instruction and the student's special education needs is not borne out by the evidence.[8]
Review of the hearing record does not support the IHO's finding that the evidence was limited regarding the student's present levels of performance, what he was being taught, and how it was tailored to his needs (IHO Decision at pp. 5-6).[9] Rather, the teacher identified the student's struggle with low attention span, rigidity, and impulsivity; his tendency to become easily distracted by auditory and visual stimuli and need for sensory input; and that he responded well to hands on activities and high reinforcement schedules when learning (Parent Exs. F at p. 1; G at p. 1). According to the teacher, the student exhibited difficulty with executive functioning skills and required multisensory learning and graphic organizers to learn skills and complete tasks (Parent Ex. Q ¶ 11). The teacher also reported that the student demonstrated deficient language, visual perceptual, self-regulation, and fine, gross, and oral motor skills (id.).
Review of the February and June 2023 progress reports show that the student worked on improving pre-academic and academic reading, writing, and math skills (Parent Exs. F at p. 1; G at p. 1). Specifically, in reading the student worked on clapping out syllables in words to improve phonological awareness skills; identifying initial consonant sounds in words heard auditorily; labeling and identifying letters and corresponding sounds using visual, auditory, and kinesthetic cues; and reading sight words from the Dolch list (Parent Exs. F at pp. 1-2; G at pp. 1-2). The student also participated in a shared reading program to improve print concepts and listening comprehension, and worked on pointing to pictures in books with correct book orientation (Parent Exs. F at p. 2; G at p. 2). The teacher used a multisensory approach to help the student learn to copy shapes, and "various concepts of print" to develop prewriting skills (Parent Exs. F at p. 2; G at p. 2). In math, the student worked on recognizing number patterns and size relationships and used concrete materials to identify quantitative concepts (Parent Exs. F at p. 2; G at p. 2). According to the progress reports, the student demonstrated the ability to rote count, count using 1:1 correspondence, and identify and label numbers up to 20 (Parent Exs. F at p. 2; G at p. 2). The teacher reported that "[l]essons [we]re structured in a manner which address[ed] [the student's] processing needs, and short attention span by incorporating multi-sensory learning activities, sensory breaks, and reinforcement" (Parent Exs. F at p. 1; G at p. 1).
Regarding social skills, the teacher described the student as "socially motivated" but indicated that he also "struggle[d] to interact appropriately due to his impulsivity and rigidity" (Parent Exs. F at p. 2; G at p. 2). The teacher also reported that the student's limited perspective taking skills and rigidity impeded his ability to understand others' feelings and respond accordingly (Parent Exs. F at p. 2; G at p. 2). At the time of the progress reports, the student was "learning to practice and generalize social skills through concrete teaching methodologies" and identify emotions in pictures and in others (Parent Exs. F at p. 2; G at p. 2). The student reportedly required support during social interactions and was learning to use a self-regulation tool and to identify his emotions (Parent Exs. F at p. 2; G at p. 2). To address these needs, the teacher used sensory activities, engagement strategies, and visuals (Parent Exs. F at p. 2; G at p. 2).
According to the progress reports, the student engaged in "problem behavior primarily when presented with challenging tasks or activities, in larger group settings, and in overstimulating environments" (Parent Exs. F at p. 3; G at p. 3). To address these needs, the teacher testified that the board certified behavior analyst (BCBA) developed an individualized behavior plan for the student and described the specific reinforcement schedule (Parent Ex. Q ¶¶ 13, 14). The teacher identified the student's behaviors as ignoring teacher's instructions, self-stimulatory, aggression, property destruction, running, and noncompliance (Parent Exs. F at p. 3; G at p. 3). The progress reports indicated that the teacher's response to the student's behavior was dependent on the function of the behavior, and in addition to a class-wide behavior plan, "reactive strategies" were used with the student such as "maintaining the demand, physical prompting, replacement strategies, and redirection to the appropriate behavior" (Parent Exs. F at p. 3; G at p. 3). To encourage the student's display of appropriate behaviors, the teacher identified the use of a visual schedule, engagement strategies, and sensory tools; breaking down of difficult tasks; and the opportunity to earn a desired item/activity (Parent Exs. F at p. 3; G at p. 3).
Next, even if, as the IHO found the teacher's testimony about the academic curriculum was "vague and general," the Hamaspik program description provided detailed information about the various types of curricula offered at the school (Parent Ex. D at p. 3; see IHO Decision at p. 5).[10] For example, the school's English language arts (ELA) "curriculum target[ed] the five components of an effective literacy program, as determined by the National Reading Panel . . . and was "aligned to the New York State Next Generation learning standards" (Parent Ex. D at p. 3). Additionally, the ELA curriculum "include[d] systematic and explicit phonic instruction through research based multi-sensory approaches including the Orton[-]Gillingham Approach," and also "the balanced literacy methodology" (id.). The multisensory Handwriting Without Tears curriculum was used during handwriting instruction (id.). In math, the Hamaspik program description indicated that the school's curriculum was "aligned with the Common Core standards," and following mastery of prerequisite skills, students were "introduced to My Math Curriculum," that included natural environment and real-life teaching, and multisensory learning (id.). Further, the "CRA model" was used to "help students break down math concepts" with transition from "concrete [and] pictorial" to "abstract concepts" (id.).
Regarding the IHO's finding about the "lack of academic courses in [the s]tudent's schedule," including science and social studies classes, the program description indicated that students received instruction during "[t]hematic lessons," which were "units . . . based on a variety of topics including science, social studies, and life skills" and review of the student's schedule indicated that time for the "Thematic Unit Lesson" in conjunction with social skill/social thinking instruction, occurred daily (Parent Exs. D at p. 3; E; see IHO Decision at p. 5). Contrary to the IHO's finding, the schedule reflected that the student also received dedicated time for "[i]ndividualized reading groups," read aloud or shared reading instruction, and individualized math and group handwriting instruction (Parent Ex. E). Review of the student's schedule shows allowance for daily PT, OT and speech-language therapy, and instruction in activities of daily living (ADL) skills, conversation, sensory regulation, feeding/mealtime, and social skills (id.).
With regard to the IHO's finding that the progress reports lacked specificity as to what methodologies were used, review of the progress reports shows that to address the student's needs instruction incorporated multisensory learning activities, sensory breaks, continuous reinforcement, high intensity engagement, frequent prompting, small group instruction, and individualized attention (Parent Exs. F at p. 2; G at p. 1; see IHO Decision at p. 6). Additionally, the teacher testified to using memory aids, picture cues, flashcards, kinetic sand/clay, and songs/music to help the student benefit from instruction (Parent Ex. Q ¶ 12).
Finally, as to the IHO's finding that there was little discussion about how the methodologies used resulted in the student's progress (IHO Decision at p. 6), it is well settled that, while a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]), a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364). Also, review of the evidence does not support the IHO's finding. Specifically, the student's end of year report identified the distinct progress the student made in various components of reading, handwriting, and math, which corresponded to the teacher's testimony about the methodologies used with the student and his progress (compare Parent Ex. H, with Parent Ex. Q ¶¶ 18-21). For example, the teacher testified that the student received 1:1 reading instruction using the Orton-Gillingham Method, and that by the end of the school year, he was able to recognize and name 23 letters of the alphabet, read short sentences, answer simple questions, had gained more than 40 sight words, and "made great strides in decoding and encoding" (Parent Ex. Q ¶ 18; see Parent Ex. H). In writing, the teacher used the Visual Auditory Kinesthetic Tactile and Handwriting Without Tears approaches, and for math, used the My Math program; and testified to the progress the student made (Parent Ex. Q ¶¶ 19, 20; see Parent Ex. H).
Review of the evidence shows that Hamaspik was an appropriate unilateral placement when viewed under the totality of the circumstances. As discussed above, Hamaspik provided the student with specially designed instruction in his areas of need, individualized behavior intervention supports, and related services. Further, the evidence in the hearing record shows that the student made academic, social/emotional, and behavioral progress during the 2022-23 school year. Together, these factors all support the appropriateness of the parents' unilateral placement of the student.
B. 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 not making a finding regarding equitable considerations and that they favor the parents. In the answer, the district did not make any arguments regarding equitable considerations, nor did it make any arguments regarding equitable considerations during the impartial hearing (see Mar. 20, 2025 Tr. pp. 44-46). The parents sent a timely 10-day notice to the district, informing the district of the parents' concerns regarding the lack of an IEP and public school placement for the student for the 2022-23 school year, and of their intent to unilaterally place the student and seek reimbursement for the unilateral placement if the issues were not resolved (see Parent Ex. C).
Accordingly, the parents complied with the procedures outlined in the IDEA and State law, and review of the evidence does not provide a reason to reduce the award granted in this order.
VII. Conclusion
Having found that the evidence in the hearing record supports a finding that Hamaspik was an appropriate unilateral placement for the student for the 2022-23 school year, and that equitable considerations favor the parent, the necessary inquiry is at an end.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the IHO decision dated May 6, 2025, is modified by reversing that portion which found that Hamaspik was not an appropriate placement for the student for the 2022-23 school year; and
IT IS FURTHER ORDERED that the district shall directly fund/reimburse the parents for the total cost of the student's tuition at Hamaspik for the 2022-23 school year.
Dated: May 29, 2026
Sarah L. Harrington
STATE REVIEW OFFICER
Footnotes
[1] The student's eligibility for special education as a student with an intellectual disability is not in dispute (see 34 CFR 300.8[c][6]; 8 NYCRR 200.1[zz][7]).
[2] The January 2021 IEP stated that math, social studies, and sciences were to be delivered in Yiddish, and English language arts was to be delivered in English (Dist. Ex. 1 at p. 13).
[3] Hamaspik 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).
[4] The transcript for the March 20, 2025 hearing date is not paginated sequentially with the preceding transcripts. Thus, the March 20, 2025 transcript will be cited as "Mar. 20, 2025 Tr."
[5] An appeal from an IHO's decision to an SRO must be initiated by timely personal service of a notice of request for review and a verified request for review and other supporting documents upon a respondent (8 NYCRR 279.4[a]). A request for review must be personally served within 40 days after the date of the IHO's decision to be reviewed (id.). If the last day for service of any pleading or paper falls on a Saturday or Sunday, service may be made on the following Monday; if the last day for such service falls on a legal holiday, service may be made on the following business day (8 NYCRR 279.11[b]). State regulation provides an SRO with the authority to dismiss sua sponte an untimely request for review (8 NYCRR 279.13; see e.g., Application of the Board of Educ., Appeal No. 17-100 [dismissing a district's appeal for failure to timely effectuate personal service on the parent]; Application of a Student with a Disability, Appeal No. 16-014 [dismissing a parent's appeal for failure to effectuate service in a timely manner]). However, an SRO may, in his or her sole discretion, excuse a failure to timely seek review within the 40-day timeline for good cause shown (8 NYCRR 279.13). The reasons for the failure must be set forth in the request for review (id.). "Good cause for late filing would be something like postal service error, or, in other words, an event that the filing party had no control over" (Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450, at *5 [N.D.N.Y. Dec. 19, 2006]; see T.W. v. Spencerport Cent. Sch. Dist., 891 F. Supp. 2d 438, 441 [W.D.N.Y. 2012]). I find that the cases cited by the district are distinguishable from the present matter and, under the circumstances presented, I decline to dismiss the request for review as untimely. Nevertheless, the IHO is strongly encouraged to review State guidance regarding the issuance of decisions (see "New York City Impartial Hearing Decision Process," Office of Special Educ. Mem. [Apr. 2022], available at https://www.nysed.gov/sites/default/files/special-education/memo/nyc-impartial-hearing-decision-process-april-2022.pdf) and, in the future, to avoid making representations to the parties regarding the timeliness of an appeal, a matter over which the IHO does not have jurisdiction.
[6] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F, 580 U.S. at 402).
[7] I note that the student's teacher testified that she held a Masters degree in special education and received her teacher certification in August 2023 (Mar. 20, 2025 Tr. pp. 12-15).
[8] State regulations no longer define the term "paraprofessional," as the term "paraprofessional" was replaced with the term "supplementary school personnel" (see NY Reg, June 25, 2014 at 85-86). Supplementary school personnel "means a teacher aide or a teaching assistant" (8 NYCRR 200.1[hh]). A teaching assistant may provide "direct instructional services to students" while under the supervision of a certified teacher (8 NYCRR 80-5.6[b], [c]; see also 34 CFR 200.58[a][2][i] [defining paraprofessional as "an individual who provides instructional support"]). A "teacher aide" is defined as an individual assigned to "assist teachers" in nonteaching duties, including but not limited to "supervising students and performing such other services as support teaching duties when such services are determined and supervised by [the] teacher" (8 NYCRR 80-5.6[b]). State guidance further indicates that a teacher aide may perform duties such as assisting students with behavioral/management needs ("Continuum of Special Education Services for School-Age Students with Disabilities," at p. 23, Office of Special Educ. [Nov. 2013], available at https://www.nysed.gov/sites/default/files/programs/special-education/continuum-of-special-education-services-for-school-age-students-with-disabilities.pdf). The hearing record includes no evidence that the student required the support of an individual with additional qualifications or certifications in order to receive educational benefit.
[9] To the extent that the IHO faulted the parents for what she perceived as limited information about the student's present levels of academic achievement, functional performance, academic deficiencies, and goals, it is not the parents' responsibility to evaluate the student and identify his needs (IHO Decision at p. 5; 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]).
[10] In addition to academic curricula, the Hamaspik program description reflected use of "The Social Thinking Program," to teach students to "generalize social skills in a systematic manner" and that students received "adaptive daily living skills" instruction "in a variety of settings throughout the day to promote independence and increase skill level" (Parent Ex. D at p. 3).