STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-382
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: Gulkowitz Berger LLP, attorneys for petitioner, by Shaya M. Berger, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Toni L. Mincieli, Esq.
DECISION
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied in part their request to be reimbursed for their son's tuition at the Special Torah Education Program (STEP) for the 2024-25 school year.[1] Respondent (the district) cross-appeals from that portion of the IHO's decision which found that it failed to offer an appropriate educational program to the student for the 2024-25 school year. The appeal must be dismissed. The cross-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
During the 2023-24 school year, the student was 16 years old and attending an ungraded classroom at a nonpublic school (Dist. Ex. 3 at p. 1).[2] A CSE convened on February 13, 2024, determined that the student was eligible for special education as a student with autism, and developed an IEP with a projected implementation date of July 5, 2024 for the 2024-25 school year (id. at pp. 1, 23).[3] The CSE recommended 12-month services consisting of a 6:1+1 special class placement in a specialized school for math, English-language arts (ELA), social studies, and sciences (id. at pp. 15, 17). For related services, the CSE recommended that the student receive one 30-minute session per week of individual counseling, one 30-minute session per week of group counseling, three 30-minute sessions per week of individual occupational therapy (OT), two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, and further recommended that the parent receive four 60-minute sessions per year of parent counseling and training (id. at pp. 15-16).
On June 21, 2024, the district issued a prior written notice and a school location letter to the parent (Dist. Ex. 4). The prior written notice memorialized the recommendations of the February 2024 CSE, the documents the CSE reviewed, and the other placement options the CSE considered (id. at pp. 1-5). The school location letter identified the specific public school site to which the student was assigned to receive the recommended special education programming (id. at p. 8).
By letter dated August 19, 2024, the parents, through their attorney, notified the district of their disagreement with the recommendations of the CSE, asserted that they had not received a school location letter, notified the district of their intention to unilaterally enroll the student at STEP for the 2024-25 school year and seek public funding for the cost of the student's attendance (Parent Ex. C).
The parents signed an enrollment contract with STEP on September 3, 2024 (see Parent Ex. D).[4] The contract indicated that the student would attend STEP for the 10-month, 2024-25 school year and the total tuition cost inclusive of related services was $75,000 (id.). According to the testimony of the STEP principal, the student attended a class of 10 students, with one teacher and two teaching assistants during the 2024-25 school year (Parent Ex. M ¶13).
A. Due Process Complaint Notice
In a due process complaint notice dated September 17, 2024, the parents alleged that the district denied the student a FAPE for the 2024-25 school year (see Dist. Ex. 1). The parents alleged that the district failed to send a proposed public school placement and that even if the district had sent a school location letter, "the type of public school as recommended in the IEP would have been inappropriate and not addressed the [student's] academic, social, emotional and behavioral needs" (id.).
The parents contended that the student needed a special class "with less than 6:1+1 students" and that focused on the student's individualized goals based on his own strengths and needs (Dist. Ex. 1 at p. 1). They also asserted that the "student require[d] a school that provide[d] a high staff-to-student ratio in order to address all his academic skills, social/emotional skills, and life skills" (id.). Moreover, the parents alleged that the "larger class setting mandated on the IEP" would not enable the student to focus, obtain any meaningful gains academically, and his social, emotional and behavioral needs would not be addressed (id.). The parents argued that a smaller class "would enable a more focused approach" on the student's needs, and enable the student to concentrate on what was taught and make progress (id.). The parents alleged that the recommended class size was too large and "for this reason and other reasons," they were forced to enroll the student at STEP and request tuition funding for the 2024-25 school year (id. at p. 2).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on January 26, 2025 and concluded on February 5, 2025, after two days of proceedings (see Jan. 26, 2025 Tr. pp. 1-107; Feb. 5, 2025 Tr. pp. 1-86).[5] In a decision dated May 13, 2025, the IHO found that the district committed a procedural violation by failing to provide the parents with a school location letter, which led to the parents' inability to meaningfully participate in the decision-making process (IHO Decision at pp. 15-16, 24).[6] The IHO noted that the student's father rebutted the presumption that the district mailed the school location letter through his credible testimony that neither he, nor the student's mother received the letter (id. at p. 15). The IHO found that this testimony shifted the burden back to the district to "produce admissible evidence that would tend to prove a mailing took place" (id.). The IHO found that the district made no such offer and, therefore, determined that the district failed to meet its obligation to prove it sent a school location letter or notified the parents of the assigned public school site for the 2024-25 school year (id.). Moreover, the IHO determined that even if the letter was sent, it was not sent until June 21, 2024, which did not allow the parents sufficient time to participate meaningfully in the process (id.). Based on these findings, the IHO found that the district failed to offer the student a FAPE for the 2024-25 school year (id. at p. 16).[7]
Turning to the issue of the unilateral placement, the IHO determined that STEP was an appropriate placement for the student for the 2024-25 school year (IHO Decision at pp. 16-21). The IHO noted that the student's program at STEP was similar to the program recommended by the district, which he determined "would have offered the [s]tudent a substantive FAPE" but for the serious procedural violation (id. at p. 19). Additionally, the IHO found that STEP would have addressed the student's social/emotional and behavioral needs and the overall program addressed the student's unique needs (id. at pp. 19-21).
The IHO then addressed equitable considerations and held that several factors weighed against an award of full reimbursement (IHO Decision at pp. 21-23). The IHO noted that there was no evidence that the parents failed to cooperate with the CSE and there was no indication that the parents had predetermined the student's attendance at the private school (id. at p. 22). However, the IHO found it would be inequitable to order the district to fund the religious portion of the student's attendance at STEP and reduced the amount requested for tuition by 11.18421 percent for the religious portion of the program (id. at pp. 22-23). Next, the IHO held that it was inequitable to order full funding because the parents' contention in the due process complaint notice was that the district's program was not restrictive enough, but the parents then revised their argument by asserting a larger class was needed due to the placement at STEP (id. at p. 23). The IHO determined that "inconsistency in the parent[]s['] claims and proofs [was] less than forthright, which implicate[d] whether the amount of tuition being sought in th[e] case [wa]s the 'appropriate and reasonable level of reimbursement required' by the IDEA" (id.). Specifically, the IHO stated that an impactful reduction was warranted due to serious inconsistencies in the hearing record and given that the district "would have prevailed on the substance" of the offered program, and STEP "was not that different than" the program the district offered (id.). Based on these findings, the IHO reduced the award by an additional 40 percent (id.). The IHO ordered the district to fund the student's program at STEP for the 2024-25 school year, less 51.18421 percent or $38,388.16 for a total award of $36,611.84 (id. at p. 24).
IV. Appeal for State-Level Review
The parents appeal and argue that the IHO abused his discretion to reduce the tuition award by 40 percent due to the IHO's perceived inconsistency with the due process complaint notice, as a due process complaint notice is not an immutable legal brief but rather is intended to notify the party to allow them to prepare their defense. The parents also argue that the reduction deviates from the IHO's finding that the parents' behavior was entirely reasonable. The parents contend that the core complaint in the due process complaint notice was that there was no school location letter, which the IHO agreed with and found denied the student a FAPE. Further, the parents argue that the due process complaint notice alleged that the district's recommended program did not address the student's individual goals based on the student's needs and that the student required a high staff-to-teacher ratio. The parents assert that they fully cooperated, participated with the CSE, and provided documentation from the student's nonpublic school. The parents argue that because the IHO properly found that the parents' actions were reasonable, the award should not have been reduced. The parents also contend that the IHO minimized the district's failure to offer the student a FAPE and then erred by using such a finding to reduce the tuition award.
Next, the parents allege that the IHO erred in reducing the tuition award by approximately 11 percent for religious instruction, asserting the IHO did not consider how the instructional time provided an educational benefit to the student. The parents argue that the testimony of the principal of STEP supported finding that the religious classes had clear secular and therapeutic purposes and it was not speculative and should have been credited. The parents argue that the IHO should have awarded the student's full tuition at STEP for the 2024-25 school in the amount of $75,000.
In an answer and cross-appeal, the district asserts that the IHO erred in finding that it did not provide the parents with a school location letter. The district argues that it offered the student a timely and appropriate public school placement. Additionally, the district asserts that the parents' claim that they did not receive a school location letter should not be credited. The district alleges that the notice placed in the hearing record was a business record prepared during the ordinary course of business. Furthermore, the district argues that the IHO's finding that the notice dated June 21, 2024 denied the parent meaningful participation is unavailing. The district argues that it does not have an obligation to allow a parent to visit a proposed school before the recommendation is finalized; therefore, the timing of the notice was sufficient. The district contends that the evidence in the hearing record demonstrates that the assigned school site had a seat available for the student and could implement the IEP on the first day of school.
Further, the district argues that the IHO erred in finding that the unilateral placement at STEP was appropriate. The district asserts that the student's program at STEP did not address any of the alleged deficiencies in the district's program as the class size was larger than the district's recommendation. Accordingly, the district requests a reversal of the IHO's decision. In the alternative, the district argues that should the SRO not agree with its arguments regarding FAPE and the unilateral placement, the IHO properly reduced the amount of tuition awarded.[8]
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]).[9]
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
As described above, the IHO determined that the district failed to offer the student a FAPE based on procedural grounds (IHO Decision at pp. 14-16). The IHO also determined that had he not found that the failure to send a timely school location letter rose to the level of a denial of a FAPE to the student, he would have held that the district developed an appropriate IEP for the student and offered the student a substantive FAPE for the 2024-25 school year (IHO Decision at p. 16 n.5, 19).
As correctly noted by the district in its answer and cross-appeal, the parents have not appealed from the IHO's determinations that the recommendations of the February 2024 CSE and resultant IEP offered the student a FAPE for the 2024-25 school year. Accordingly, those findings have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
A.FAPE-Timeliness of the School Location Letter
In its answer and cross-appeal, the district asserts that it offered a timely and appropriate public school placement. The district argues that it met its burden of proving that it notified the parents of the assigned school and that the parents' denial of receipt is insufficient to rebut the district's evidence. The district contends that its documentary evidence was offered as a business record and that the parents' overall credibility should be considered when assessing their denial of receipt. The district further argues that the IHO erred in finding that transmission of the school location letter on June 21, 2024, deprived the parents of meaningful participation in the school selection process.
The hearing record includes a June 21, 2024 prior written notice and school location letter identifying the public school site where the February 2024 IEP would be implemented, and a June 21, 2024 school placement request to the district's Office of Special Education (Dist. Exs. 4 at pp. 1-8; 5 at pp. 1-2). In a 10-day notice letter dated August 19, 2024, the parents alleged that they had not received a school location letter. The parents also stated that they "[we]re concerned that the program recommended [wa]s not appropriate," that the "type of school, class size, limited school periods recommended for special classes and lack of sufficient behavioral support recommended" in the IEP, "along with lack of placement," were among the reasons the district had failed to offer a FAPE, and, for those reasons, the parents intended to unilaterally enroll the student at STEP for the 2024-25 school year and seek public funding for the cost of the student's attendance (Parent Ex. C). The parents' September 17, 2024 due process complaint notice also alleged that the district "failed to send a proposed public school placement" to the parents identifying where they could place the student for the 2024-25 school year, and, if the district "had done so, the type of public school as recommended in the IEP would have been inappropriate and not addressed the students' academic, social, emotional and behavioral needs" (Dist. Ex. 1 at p. 1).
During the impartial hearing, the district's IEP coordinator (coordinator) at the assigned school site testified that the school would have been able to implement the February 2024 IEP and that a seat was available for the student on July 1, 2024 (Jan. 26, 2025 Tr. pp. 82-84, 102, 104). The coordinator further testified that school location letters were mailed by the placement office and that the assigned school had no part in this process (Jan. 26, 2025 Tr. p. 83). The coordinator provided no testimony describing the business practice of sending school location letters to parents, she only testified that the placement office was responsible for transmitting letters.
The student's father testified that he did not receive any form of communication regarding a school placement and that the student's mother also did not receive notice of a school placement (Feb. 5, 2025 Tr. pp. 65-66). The student's father also testified that the student, who was 17 years old at the time of the impartial hearing, had attended a public school when he was in elementary school (Feb. 5, 2025 Tr. pp. 66-67).
The parents' attorney argued during the impartial hearing that the district was required to present a witness with personal knowledge of the mailing of the school location letter (Feb. 5, 2025 Tr. p. 15). Here, the parents' attorney is not correct that a witness with personal knowledge of this specific letter was required, however, the district was required to establish that the document was sent to the parent or present enough evidence to warrant a legal presumption that it was mailed, through testimony of personal knowledge of the district's business practice (V.A. v. City of New York, 2022 WL 1469394, at *6 [E.D.N.Y. May 10, 2022] [stating that proof of mailing of the school location letter may consisting of evidence of actual mailing or by proof of the district's routine business practice]). At the impartial hearing, the district was the party that carried the burden of production and persuasion regarding whether it met the procedural requirements of the IDEA and whether the district timely arranged for the provision of appropriate special education programs and services (see Educ. Law § 4404[1][c]).
There is no evidence in the hearing record of actual mailing of the school location letter such as a certified mail return receipt or an affidavit of mailing by one with personal knowledge (see V.A., 2022 WL 1469394, at *10). New York law provides a presumption of mailing and receipt by the addressee where there is proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (V.A., 2022 WL 1469394, at *6; T.C., 2016 WL 1261137, at *9; Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829 [1978]; see News Syndicate Co. v. Gatti Paper Stock Corp., 256 N.Y. 211, 214 [1931] [stating that the presumption is founded on the probability that the officers of the government will do their duty and the usual course of business]). As long as there is adequate testimony by one with personal knowledge of the regular course of business, it is not necessary to solicit testimony from the actual employee in charge of the mailing (V.A., 2022 WL 1469394, at *6; T.C., 2016 WL 1261137, at *9; Nassau Ins. Co., 46 N.Y.2d at 829-30; In re Lumbermens Mutual Casualty Co. v. Collins, 135 A.D.2d 373, 374 [1st Dep't 1987]; Gardam & Son v. Batterson, 198 N.Y. 175, 178-79 [1910] [stating that "the rule upon the subject requires . . . in the absence of any evidence as to its being deposited with the post office authorities, that the proof shall establish the existence of a course of business, or of office practice, according to which it naturally would have been done"]; but see Rhulen Agency, Inc. v. Gramercy Brokerage, Inc., 106 A.D.2d 725, 726 [3d Dep't 1984] ["It is necessary to prove by testimony of the person who mails them that letters are customarily placed in a certain receptacle and are invariably collected and placed in a mailbox."]). In order to rebut the presumption of mailing and receipt, the addressee must show more than the mere denial of receipt and must demonstrate that the sender's "routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed" (T.C., 2016 WL 1261137, at *9; Nassau Ins. Co., 46 N.Y.2d at 829-30).
The district's attorney argued that the school location letter was sent in the ordinary course of business, and the district makes the same argument in its answer and cross-appeal; however, the district has not presented evidence to support a finding that the school location letter was mailed to the parents. Based on the foregoing, the IHO correctly determined that the school location letter was not timely.
Nevertheless, having determined that the district did not provide a timely school location letter, such a violation is not a "per se" denial of FAPE. Where a district fails to adhere to the requisite regulatory timelines, relief for such a procedural violation of the IDEA is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]; see A.H. v. New York City Dep't of Educ., 394 Fed. App'x 718, 720 [2d Cir. Aug. 16, 2010]; Jusino v. New York City Dep't of Educ., 2016 WL 9649880, at *6 [E.D.N.Y. Aug. 8, 2016], aff'd 700 Fed. App'x 25 [2d Cir. July 7, 2017]; A.M. v. New York City Dep't of Educ., 840 F. Supp. 2d 660, 688 [E.D.N.Y. 2012], aff'd, 513 Fed. App'x 95 [2d Cir. Mar. 12, 2013]; Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 294, 300 [S.D.N.Y. 2010]; M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 501 [S.D.N.Y. 2008]; Warton v. New Fairfield Bd. of Educ., 217 F. Supp. 2d 261, 279 [D. Conn. 2002]). Having found that the district failed to demonstrate that it provided the parents with a timely school location letter, relief is only warranted after a determination is made that the district's failure to do so deprived the student of a FAPE, significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or 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]).
In certain factually specific cases, it has been determined that a district's failure to provide a parent with prior written notice of the program recommended and notification identifying the public school building that would implement the program prior to the start of the relevant school year rose to the level of a denial of a FAPE. As discussed below, those specific circumstances are not present in this matter.
In general, the IDEA and State regulations require that a district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability (34 CFR 300.323[a]; 8 NYCRR 200.4[e][1][ii]; Cerra, 427 F.3d at 194; Tarlowe, 2008 WL 2736027, at *6).[10] The IDEA and State regulations also provide parents with the opportunity to offer input in the development of a student's IEP, but they do not permit parents to direct through veto a district's efforts to implement each student's IEP (see T.Y. v. New York City Dep't of Educ., 584 F.3d at 420 [2d Cir. 2009], cert. denied, 560 U.S. 904 [2010]; see also Deer Val. Unified Sch. Dist. v L.P., 942 F. Supp. 2d 880, 889 [D. Ariz. 2013]). Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; see Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]). Additionally, a district "must ensure that . . . [t]he child's IEP is accessible to each regular education teacher, special education teacher, related service provider, and any other service provider who is responsible for its implementation" (34 CFR 300.323[d][1]; C.U. v. New York City Dep't of Educ., 2014 WL 2207997, at *13 [S.D.N.Y. May 27, 2014]).
Although federal and State regulations do not expressly state that a district must provide a written notice to the parents in any particular format describing the "bricks and mortar" location to which a student is assigned and where the student's IEP will be implemented, once an IEP is developed and a parent consents to a district's provision of special education services, the IDEA is clear such services must be provided to the student by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). When determining how to implement a student's IEP, the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation (see K.L.A. v. Windham Southeast Supervisory Union, 371 Fed. App'x 151, 154, 2010 WL 1193082, at *2 [2d Cir. Mar. 30, 2010]; T.Y., 584 F.3d at 420; White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 [5th Cir. 2003]; see Veazey v. Ascension Parish Sch. Bd., 121 Fed. App'x 552, 553 [5th Cir. Jan. 5, 2005]; A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 [4th Cir. 2004]; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 [2d Cir. 1980]; Tarlowe, 2008 WL 2736027, at *6). To be clear there is no requirement in the IDEA that a student's IEP name a specific school location (see, e.g., T.Y., 584 F.3d at 420). Moreover, parents generally do not have a procedural right to participate in the selection of a specific locational placement of their child (see Luo v. Baldwin Union Free Sch. Dist., 2013 WL 1182232, at *5 [E.D.N.Y. Mar. 21, 2013], aff'd, 556 Fed. App'x. 1, 2013 WL 6726899 [2d Cir Dec. 23, 2013]; J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *10 [S.D.N.Y. Feb. 20, 2013]; see also R.E., 694 F.3d at 191-92 [finding that a district may select a specific public school site without the advice of the parents]; F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *11 [S.D.N.Y. Oct. 16, 2012] [noting that parents are not procedurally entitled to participate in decisions regarding public school site selection]).
However, although not explicitly stated in federal or State regulation, implicit in a district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP (see T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 [S.D.N.Y. Mar. 30, 2016] [noting that "a parent must necessarily receive some form of notice of the school placement by the start of the school year"]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [finding that a district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year]). While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless follows that it must be shared with the parent before the student's IEP may be implemented. This analysis also fits with the competing notions that, while a district's assignment of a student to a particular school site is an administrative decision which must be made in conformance with the CSE's educational placement recommendation (see M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244-45 [2d Cir. 2015]), there is district court authority indicating that a parent has a right to obtain information about an assigned public school site (see H.L. v. New York City Dep't of Educ., 2019 WL 181307, at *9 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 2015 WL 5564446, at *11-*18 [S.D.N.Y. Sept. 21, 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 2014 WL 2207997, at *14-*16 [S.D.N.Y. May 27, 2014] [holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it]).
Review of the hearing record in this matter shows that while the district failed to demonstrate that it notified the parents of the school that the student was assigned to attend to receive the educational programming recommended in the February 2024 IEP, the district's failure did not result in any harm that would rise to the level of denial of a FAPE.
The lack of notice of a school location and any resultant delay in the implementation of the February 2024 IEP did not result in a denial of FAPE or impede the parents' participation in the decision making process. The parents' August 19, 2024 10-day notice letter rejecting the February 2024 IEP stated that the parents "[we]re concerned that the program recommended [wa]s not appropriate," that the "type of school, class size, limited school periods recommended for special classes and lack of sufficient behavioral support recommended" in the IEP, "along with lack of placement," were among the reasons the district had failed to offer a FAPE, and for those reasons, the parents would unilaterally enroll the student at STEP for the 2024-25 school year and seek public funding for the cost of the student's attendance (Parent Ex. C). The due process complaint notice also challenged the substantive recommendations of the February 2024 CSE as the basis for unilaterally enrolling the student at STEP, in addition to the lack of a school location letter (Dist. Ex. 1 at p. 1). The parents specifically stated in the due process complaint notice that even if the district had sent the parents a school location letter, "the type of public school as recommended in the IEP would have been inappropriate and not addressed the students' academic, social, emotional and behavioral needs" (id.).
Having reviewed the parents' assertions, it does not appear that they were genuinely considering placement in a public school. Rather, the language of the parents' August 19, 2024 10-day notice letter and September 17, 2024 due process complaint notice indicated that any consideration of a public school placement was pretextual on their part and, accordingly, the untimely school location letter at issue did not affect the parents' decision to reject the February 2024 IEP. Additionally, while the student's father testified that he had not received a notice of the school location, he did not testify as to any attempts made by the parent to place the student in a public school for the 2024-25 school year (Feb. 5, 2025 Tr. pp. 65-67). Procedural violations warrant tuition reimbursement only if the he parent can "articulate how a procedural violation resulted in the IEP's substantive inadequacy or affected the decision-making process" (M.W. v. New York Dept. of Educ., 725 F.3d 131, 139 [2d Cir. 2013]; see Ambrister v. Banks, 2025 WL 2775936, at *2 [2d Cir. Sept. 30, 2025][procedural violation of a late notice of an assigned school did not result in a denial of a FAPE where parent did not articulate how she was deprived of an opportunity to participate in the decision-making process or what she would have done differently had she received an earlier notice]).
Based on the above, the hearing record shows that the district's failure to demonstrate that its prior written notice and school location letter were mailed to the parent did not rise to the level of a denial of a FAPE under the circumstances presented.
VII. Conclusion
Having found that the IHO erred in determining that the district's failure to timely notify the parents of the assigned school site where the February 2024 IEP would be implemented rose to the level of a denial of a FAPE to the student, and having found that the parents failed to appeal the IHO's determination that the recommendations contained in the February 2024 CSE offered the student a FAPE for the 2024-25 school year, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's decision dated May 13, 2025, is modified by reversing those portions which found that the district failed to offer the student a FAPE for the 2024-25 school year; and
IT IS FURTHER ORDERED that the IHO's award of partial funding for the cost of the student's attendance at STEP for the 2024-25 school year is vacated.
Dated: Albany, New York
June 30, 2026
Steven Krolak
STATE REVIEW OFFICER
Footnotes
[1] The parents appeared jointly in the impartial hearing. The student's father appears individually in this appeal (compare Req. for Rev. at p. 1; with Dist. Ex. 1 at pp. 1-3); however, for the purpose of consistency, this decision refers to petitioners as both parents.
[2] The hearing record contains multiple duplicative exhibits. For purposes of this decision, only district exhibits are cited in instances where both a parent and district exhibit are identical in content. The IHO is reminded that it is his responsibility to exclude evidence that he determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).
[3] The student's eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[4] STEP 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).
[5] The impartial hearing transcripts are not consecutively paginated. For purposes of this decision, the transcripts will be cited by date and corresponding page number.
[6] The IHO held that there was "no reason to doubt [the] veracity" of the witnesses and, therefore, the IHO credited the testimony of the witnesses (IHO Decision at p. 12).
[7] In the alternative, the IHO held that substantively the district offered the student a FAPE (IHO Decision at p. 16 n.5). The IHO credited the district's witnesses testimony that the recommended program would have addressed the student's academic, social/emotional, and behavioral needs (id.).
[8] The parents did not submit an answer to the district's cross-appeal.
[9] 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).
[10] In New York State, the school year is defined as the "period commencing on the first day of July in each year and ending on the thirtieth day of June next following" (N.Y. Educ. Law § 2[15]).