Application of a Student with a Disability

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-420

Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York

State Education Department

Appearances: Law Office of Erika L. Hartley, attorneys for petitioner, by Erika L. Hartley, Esq.

Liz Vladeck, General Counsel, attorneys for respondent, by Nicole Daley, Esq.

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from that part of a decision of an impartial hearing officer (IHO) which denied her request for full funding of the cost of her daughter's attendance at Winston Preparatory School (Winston Prep) based on equitable considerations. Respondent (the district) cross-appeals from that part of the IHO's decision which found that Winston Prep was an appropriate unilateral placement for the student for the 2024-25 school year. The appeal must be sustained in part. The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

The student has received diagnoses of attention deficit hyperactivity disorder (ADHD) inattentive presentation, and specific learning disorders with impairments in reading, written expression, and mathematics and had a history of academic delays (Parent Exs. F at p. 1; M at pp. 1-2). For the 2022-23 school year (fifth grade), the student attended a nonpublic school where she received "individual and small group, multisensory, phonetic reading and academic instruction" (Parent Ex. M at pp. 1-2).

A CSE convened on June 8, 2023, continued to find the student eligible for special education as a student with an other health impairment, and developed an IEP for the student with a projected implementation date of September 7, 2023 (Parent Ex. N at pp. 1, 13, 18-20). 1 The June 2023 CSE recommended that the student receive 32 periods per week of integrated coteaching (ICT) services for all subjects, one 30-minute session per week of individual occupational therapy (OT), one 30-minute session per week of individual speech-language therapy, and one 30-minute session per week of speech-language therapy in a group (id. at pp. 13, 18-19). The June 2023 CSE recommended special transportation services from the closest safe curb location to the school (id. at p. 17). The June 2023 CSE also recommended that the student receive testing accommodations for all assessments consisting of a separate location with minimal distractions or fewer than 12 students, extended time, on-task focusing prompts, preferential seating, and having the test read to her (id. at p. 15).

An undated prior written notice summarized the recommendations of the June 2023 CSE and indicated that the evaluative information considered by the CSE included an April 25, 2022 neuropsychological assessment, a May 27, 2022 IEP, a March 20, 2023 report card, and a June 7, 2023 speech-language progress report (Parent Ex. O at pp. 1-5).

For the 2023-24 school year, the student attended the same nonpublic school (Parent Ex. M at pp. 1-2).

An enrollment agreement and letter amendment dated April ^[1], 2024, indicated that the student would attend Winston Prep for the 2024-25 school year from September 2024 through June 2025 (Parent Ex. G at pp. 1, 6). The parent's signature on the letter amendment was undated, however, the parent countersigned the Winston Prep enrollment agreement on June 13, 2024 (id. at pp. 5, 7).

By 10-day notice dated August 20, 2024, the parent, through her attorney, advised the district that a CSE had not convened to consider the results of independent educational evaluations (IEEs) and failed to develop an IEP for the student for the 2024-25 school year (Parent Ex. A at pp. 1-2). The parent further advised the district of her intention to unilaterally enroll the student at Winston Prep for the 2024-25 school year and seek public funding for the cost of the student's attendance (id. at pp. 1-3).

The student began attending Winston Prep at the beginning of September of the 2024-25 school year (seventh grade) (Parent Ex. J at p. 1). ^[2]

A. Due Process Complaint Notice

In a due process complaint notice dated September 20, 2024, and filed on September 23, 2024, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. B at pp. 1, 7).^[3] The parent asserted that the district last convened a CSE for the student on June 8, 2023, and that the CSE failed to develop an IEP for the student for the 2024-25 school year (id. at p. 2). The parent further argued that the district did not recommend an appropriate special education placement for the 2024-25 school year (id. at p. 3). The parent also asserted that to the extent the "June 2023 IEP w[ould] be in effect at the commencement of the 2024-2025 school year … it [wa]s outdated," that the "June 2023 IEP [wa]s inappropriate for [the student] in all material respects," and that the parent "challenge[d] the whole IEP developed" for the student (id. at p. 2). The parent argued that the June 2023 IEP was based on outdated evaluative information, that the district had funded IEEs during the 2023-24 school year that were never considered by the CSE, and that an IEP based on the student's current needs was never developed for the 2024-25 school year.

The parent also alleged that Winston Prep was an appropriate unilateral placement for the student for the 2024-25 school year and that equitable considerations did not warrant a reduction in the amount of relief sought by the parent (Parent Ex. B at pp. 4-5). The parent also invoked the student's right to pendency, which consisted of transportation services (id. at p. 5). The parent further requested direct funding and reimbursement of the student's tuition costs at Winston Prep, and reimbursement for any transportation costs incurred due to the district's failure to implement pendency (id.). 4

B. Impartial Hearing Officer Decision

An IHO with the Office of Administrative Trials and Hearings (OATH) was assigned to preside over the matter. Following two prehearing conferences on October 25, 2024, and December ^[4], 2024, an impartial hearing commenced on January 9, 2025, and concluded on January 31, 2025 (see Tr. pp. 1-197).

During the second prehearing conference, the parent's attorney requested that the IHO recuse herself, which was denied by the IHO (Tr. p. 16). Subsequently, the parent's attorney was instructed to make a written request for recusal (Tr. p. 17). By written application dated January 2, 2025, the parent's attorney requested the IHO's recusal (IHO Ex. III at pp. 1-8).

In a decision dated May 28, 2025, the IHO found that the district did not offer the student a FAPE for the 2024-25 school year, that Winston Prep was an appropriate unilateral placement, and that equitable considerations warranted a 10 percent reduction in the amount of tuition funding awarded for the 2024-25 school year (IHO Decision at pp. 8-12, 16). The IHO also addressed the parent's application for her recusal, as well as the parent's claims that the IHO lacked impartiality and exhibited bias (id. at pp. 12-15).

IV. Appeal for State-Level Review

The parent appeals and argues that the IHO erred in reducing the amount of funding requested by the parent by 10 percent based on equitable considerations. The parent also alleges that the IHO's conduct during the impartial hearing was improper, that the IHO made contradictory findings, and that her findings of fact were inconsistent with the hearing record. The parent has attached five documents to her request for review as proposed additional evidence. As relief, the parent requests "an order as to the IHO's conduct in these proceedings, annul and strike the IHO's findings of facts that are unsupported by the credible evidence"; an award of full funding for the remaining cost of the student's attendance at Winston Prep; and tuition reimbursement in the amount of $800 for the 2024-25 school year (Req. for Rev. at pp. 10-11).

In an answer and cross-appeal, the district alleges that the IHO erred in finding that the parent met her burden to demonstrate that Winston Prep was an appropriate unilateral placement for the student for the 2024-25 school year. The district argues that Winston Prep did not provide the student with individualized instruction designed to meet her needs and that the student did not receive speech-language therapy or OT during the 2024-25 school year. The district also asserts that equitable considerations warrant a denial of all relief. The district further argues that the IHO did not engage in improper conduct during the impartial hearing. The district also contends that the parent's additional evidence should not be considered.

In an answer to the district's cross-appeal, the parent argues that the district did not challenge any aspect of the parent's 10-day notice letter, that Winston Prep was an appropriate unilateral placement for the student for the 2024-25 school year, and that equitable considerations did not warrant a reduction in the amount of funding requested by the parent. The parent also attached another proposed exhibit to her answer to the cross-appeal and requests that it be considered as additional evidence.

In a reply to the parent's answer to the cross-appeal, the district objects to the parent's proposed additional evidence and argues that it should not be considered.

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]). ^[5]

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

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

VI. Discussion

A. Preliminary Matters

1. Additional Evidence

As described above, the parent attached five documents to her request for review and one document to her answer to the district's cross-appeal and requests that they be considered as additional evidence. ^[6]

Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of the Dep't of Educ., Appeal No. 08-024; Application of a Student with a Disability, Appeal No. 08-003; Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 06-040; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068).

The documents submitted by the parent are the memorandum of law in support of recusal (Req. for Rev. Ex. A), emails dated December 4-6, 2024, and December 27, 2024 (Req. for Rev. Ex. B), emails dated January 2, 2025, and January 7-8, 2025 (Req. for Rev. Ex. C), emails dated April 4, 2025, and April 7-8, 2025 (Req. for Rev. Ex. D), emails dated April 7, 2025, and April 9, 2025 (Req. for Rev. Ex. E), and an email dated August 20, 2024, and correspondence dated October 18, 2024 (Answer to Cr.-Appeal Ex. A). At the outset, I note that proposed exhibits A and D to the request for review are unnecessarily duplicative and do not constitute additional evidence. Proposed exhibit A was already admitted into evidence as IHO exhibit III, and proposed exhibit D, which consists of email correspondence related to the parent's submission of her closing brief was included in the hearing record by the IHO (see IHO Ex. III; Supp. Doc. 6 at pp. 2-6). Proposed exhibit B consists of email correspondence related to the parent's request for an expedited transcript of the prehearing conference, which she believed she required to write her recusal memorandum of law, proposed exhibit C consists of email correspondence between the parties and the IHO, offered in support of the parent's claim of improper conduct by the IHO, proposed exhibit E consists of email correspondence related to the parent's complaint to OATH regarding the conduct of the IHO during the impartial hearing and the IHO's failure to confirm receipt of the parent's closing brief, and proposed exhibit A to the answer to the cross-appeal consists of an email receipt of the parent's 10-day notice letter and a letter from the district requesting documents related to a potential settlement.

Several of the documents offered by the parent were available at the time of the impartial hearing (Req. for Rev. Exs. B-C; Answer to the Cr.-Appeal Ex. A), and the remaining documents are not necessary to render a decision in this matter (Req. for Rev. Exs. D-E). I also note that the parent's closing brief was included in the hearing record (IHO Ex. VIII). Therefore, those documents submitted by the parent which were not already a part of the hearing record will not be considered on appeal.

2. Conduct of the Impartial Hearing and IHO Bias

The parent asserts that the IHO's conduct during the proceedings was improper. Specifically, the parent alleges that the IHO engaged in concerning behavior, disparaging comments and accusations, denied her requests for an expedited prehearing conference transcript, denied her application for recusal, denied her multiple requests to "make a record," interrupted her and the parent's witnesses, and failed to confirm receipt of the parent's closing brief.

State regulations set forth the procedures for conducting an impartial hearing and address, in part, minimal process requirements that shall be afforded to both parties (8 NYCRR 200.5[j]). Among other process rights, each party shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses (8 NYCRR 200.5[j][3][xii]). Furthermore, each party "shall have up to one day to present its case" (8 NYCRR 200.5[j][3][xiii]). State regulation provides that the IHO "shall exclude any evidence that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious" and "may limit examination of a witness by either party whose testimony the impartial hearing officer determines to be irrelevant, immaterial or unduly repetitious" (8 NYCRR 200.5[j][3][xii][c], [d]).

Generally, unless specifically prohibited by regulation, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]). At the same time, the IHO is expected to ensure that the impartial hearing operates as an effective method for resolving disputes between the parents and district (Letter to Anonymous, 23 IDELR 1073). State and federal regulations balance the interests of having a complete hearing record with the parties having sufficient opportunity to prepare their respective cases and review evidence.

In addition, it is well settled that an IHO must be fair and impartial and must avoid even the appearance of impropriety or prejudice (see, e.g., Application of a Student with a Disability, Appeal No. 12-066). Moreover, an IHO, like a judge, must be patient, dignified, and courteous in dealings with litigants and others with whom the IHO interacts in an official capacity and must perform all duties without bias or prejudice against or in favor of any person, according each party the right to be heard, and shall not, by words or conduct, manifest bias or prejudice (e.g., Application of a Student with a Disability, Appeal No. 12-064). An IHO may not be an employee of the district that is involved in the education or care of the child, may not have any personal or professional interest that conflicts with the IHO's objectivity, must be knowledgeable of the provisions of the IDEA and State and federal regulations and the legal interpretations of the IDEA and its implementing regulations, and must possess the knowledge and ability to conduct hearings and render and write decisions in accordance with appropriate, standard legal practice (20 U.S.C. § 1415[f][3][A]; 34 CFR 300.511[c][1]; 8 NYCRR 200.1[x]).

Notably, the IHO determined that the district failed to offer the student a FAPE for the 2024-25 school year, and that Winston Prep was an appropriate unilateral placement for the student for the 2024-25 school year (IHO Decision at pp. 8, 9-11, 16). The parent contends that the IHO's determination as to the credibility of the parent was unwarranted and not supported by the evidence in the hearing record. The parent argues that the IHO disregarded the parent's probative testimony regarding the student's progress at Winston Prep. The parent requests that the IHO's findings on credibility and lack of probative value of the parent's testimony be annulled. However, the parent was not aggrieved by these aspects of the IHO's decision in the parent's favor. While the parent claims that the IHO's improper conduct demonstrated a lack of patience and that her "words and conduct reflected an adverse leaning against the parent, the parent prevailed on the issues of FAPE, and the appropriateness of her unilateral placement of the student at Winston Prep. Further, the IHO's reduction in the amount of relief requested by the parent was unrelated to the parent's credibility or the parent's attorney's conduct during the impartial hearing (id. at pp. 8, 11-12, 16). Lastly, the parent has requested no relief in relation to the IHO's conduct beyond "an order as to the IHO's conduct in these proceedings" (Req. for Rev. at p. 10).

In her decision, the IHO detailed specific instances of the parent's attorney's conduct with which she took umbrage (IHO Decision at pp. 12-13). The IHO stated that review of the hearing record demonstrated that she was patient with the parent's attorney, despite that the parent's attorney's "improper conduct, both procedurally and substantively permeated the [prehearing conference] and the hearing on the merits" and patient with the parent's witnesses "who did not appear in a timely manner" (id. at p. 13). The IHO found that because she met the federal and State qualification standards to preside over the matter, "because the [parent] ha[d] failed to overcome the presumption of honesty and integrity afforded hearing officers, and because the [parent] ha[d] failed to offer any evidence of actual bias," and that review of the hearing record demonstrated that the parent had a full and fair opportunity to present her case at the impartial hearing, she determined that she conducted the impartial hearing in a manner consistent with the requirements of due process (id. at p. 15).

I have conducted an independent review of the entire hearing record. Certainly, it appears that terse exchanges occurred, and both the parent's attorney and the IHO appeared to regularly seize upon opportunities to take offense during the impartial hearing. Notwithstanding the tenor of the exchanges, the IHO correctly stated that the parent failed to offer any evidence of actual bias. Contentiousness between a party's counsel and an IHO during an impartial hearing, "including interruptions, adverse procedural rulings, and comments on the conduct of [a party]'s counsel's conduct during the hearing" would only demonstrate bias if they reveal an opinion that derives from an extrajudicial source, or if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible (Talley v. Aviles-Ramos, 2026 WL 592078 at *7 [S.D.N.Y Mar. 3, 2026] [citing Liteky v. United States, 510 U.S. 540, 555 [1994][holding judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge]).

Further, to the extent that the parent disagrees with the conclusions reached by the IHO based on statements in the hearing record, such disagreement also does not provide a basis for finding actual or apparent bias by the IHO (see Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 [2d Cir. 2009] [finding that "[g]enerally, claims of judicial bias must be based on extrajudicial matters, and adverse rulings, without more, will rarely suffice to provide a reasonable basis for questioning a judge's impartiality"]; see also Liteky v. United States, 510 U.S. 540, 555 [1994] [identifying that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion"]; Application of a Student with a Disability, Appeal No. 13-083). Consequently, while the IHO may have often been the principal initiator of the undignified, uncivil behavior and the parent's attorney contributions to the friction were comparatively limited and reactive, the parent's arguments seeking further action on this basis must be rejected. ^[7]

B. Unilateral Placement

Initially, neither party has appealed from the IHO's determination that the district failed to demonstrate that it offered the student a FAPE for the 2024-25 school year. Accordingly, that determination is final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]). The next issue to be addressed is the appropriateness of Winston Prep.

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

In order to address the appropriateness of the student's unilateral placement at Winston Prep, it is first necessary to review the evidence regarding the student's needs which is relevant to determining if the unilateral placement provided the student with specially designed instruction reasonably calculated to enable the student to receive educational benefits. As noted above, the IHO ruled in the parent's favor by determining that Winston Prep was an appropriate unilateral placement for the student for the 2024-25 school year.

In its answer and cross-appeal, the district does not dispute the IHO's finding that it failed to offer the student a FAPE for the 2024-25 school year, however, the district asserts that the recommendations in the June 2023 IEP were appropriate and should be considered when examining the appropriateness of Winston Prep. The district further argues that the June 2023 IEP was based on testimonial evidence, a neuropsychological exam and student reports that were admitted into evidence during the impartial hearing (see Parent Exs. F; J; L; N). The district alleges that the testimony during the impartial hearing demonstrated some student progress, however, the student did not receive speech-language therapy, OT, specialized reading instruction, and was not given access to hearing assistive technology systems. The district also asserts that Winston Prep did not record any baseline information for the student and did not administer formal assessments until spring, and that Winston Prep did not sufficiently measure the student's progress. Lastly, the district contends that there was no evidence in the hearing record that Winston Prep provided individualized instruction to meet the unique needs of the student.

At the outset, the district's argument that Winston Prep did not conduct appropriate assessments to obtain the student's needs during the 2024-25 school year must fail as it was not the parent's responsibility to evaluate the student and identify her special education needs (see A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]). With regard to the district's assertion that the June 2023 IEP offered appropriate recommendations for the student, the parent challenged "the whole IEP developed" and alleged that the "June 2023 IEP [wa]s inappropriate for [the student] in all material respects" (Parent Ex. B at p. 2). The parent also argued that the student was assessed during the 2023-24 school year to determine her academic and social/emotional needs, however, since the CSE did not conduct an annual review for the 2024-25 school year, those assessments were not considered by the CSE (id.).

Global allegations by the parent in the due process complaint notice, such as the IEP being inappropriate in all respects or that updated information was not considered due to the lack of a meeting, are generally unhelpful for identifying substantive defects and instead tend to support procedural concerns such as the failure to convene and consider information. The parent also alleged concerns that the student needed a "highly-structured and highly specialized special education program utilizing research-based methodologies and supports, and that the student has 'significant specific learning disabilities in reading, writing and math,' 'receptive and expressive language deficits,' 'ADHD,' and 'executive functioning deficits,'" among other needs that must be addressed, and that the student's most recent IEP did not do that.8 While the parent indicated that new information was not utilized at a CSE meeting, the parent stopped short of alleging that the information about the student was inaccurate. Even at this juncture on appeal, it is unclear that the parties actually have differing viewpoints of the student's deficits and special education needs with the district offering a more concrete description of the student, and the parent's description is more conclusory and reactive and both parties unconstructively accusing the other of failing to meet burdens of proof. The representatives of both parties should know well that, ordinarily, which party bears the burden of persuasion in the impartial hearing becomes relevant only if the case is one of those "very few" in which the evidence is equipoise (Schaffer v. Weast, 546 U.S. 49, 58 [2005]; Reyes v. New York City Dep't of Educ., 760 F.3d 211, 219 [2d Cir. 2014]; M.H., 685 F.3d at 225 n.3; T.B. v. Haverstraw-Stony Point Cent. Sch. Dist., 933 F. Supp. 2d 554, 565 n.6 [S.D.N.Y. 2013]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *5 [S.D.N.Y. Mar. 19, 2013]; see F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 4 [2d Cir. Jan. ^[8], 2014]). This is not one of those rare cases in which the evidence regarding the student's needs is in equipoise.

Out of an abundance of caution, I will examine the evaluative information as it is possible the parties do not agree on all of the student's areas of needs and further review of the evidence of the student's then-current needs as assessed during the 2023-24 school year is therefore warranted. The purported areas of disagreement regarding the student appear to be limited to those types of needs and deficits that could be addressed by speech-language therapy, OT, reading, and hearing assistive technology systems.

A central auditory processing evaluation was conducted on January 13, 2024 (Parent Ex. L at pp. 1-20). According to the evaluation report, thorough audiological testing was conducted and confirmed the student's normal peripheral hearing sensitivity (id. at p. 15). In addition, the student was diagnosed as having a central auditory processing disorder, which "signifie[d] challenges in her capacity to efficiently process auditory information, potentially impacting her language comprehension, reading skills, and academic performance" (id.).

The evaluator recommended that the student's classroom setup be modified to reduce reverberation and minimize background noise by seating the student away from distractions and removing competing noise sources (id.). The evaluator also recommended that the student receive preferential seating "up front" to ensure a direct visual line to the speaker (id.). Additional recommendations for the student included extended time for testing; repetition, rephrasing, and clarification of information and directions as needed; frequent checks for comprehension and repetition of key information; utilization of visual supports, attention-getting phrases, and multimodality cues (id.). Strategies to improve attention and concentration skills such as breaking tasks into smaller segments, providing frequent breaks, and utilizing visual aids were also recommended (id.). The evaluator indicated that the student's auditory comprehension skills could be enhanced through techniques such as repeating and summarizing information and incorporating multisensory approaches (id.). The evaluator further recommended integrating auditory and visual information through activities such as watching educational videos with transcripts and participating in interactive learning; employing motivational strategies, rewards, and positive reinforcement to encourage participation; and providing visual aids and contextual clues for understanding complex vocabulary (id.).

It was also recommended that instructions be broken down into manageable segments and that new information be pre-taught (Parent Ex. L at p. 16). Additional recommendations included conducting hands-on demonstrations, monitoring the speaker's rate of speech, providing written instructions and study materials ahead of lectures, offering language processing support (including visual aids and segmentation of information), encouraging and supporting active participation in group discussions by providing visual cues and outlines to aid organization (id.). The evaluator also recommended utilizing mnemonic strategies and regular review to enhance memory and recall, teaching active listening techniques and strategies to improve auditory attention and focus, creating a supportive classroom environment that fosters confidence and comfort, incorporating auditory tasks aligned with the student's strengths to build confidence and positive experiences, providing activities and exercises to enhance the student's capacity to differentiate relevant auditory information from background noise or distractions, including practicing listening in diverse environments with varying levels of background noise (id.).

In addition to classroom recommendations, the evaluator also recommended that the student continue to receive speech-language therapy and "reading specialist services" (Parent Ex. L at p. 16). The evaluator recommended that a hearing assistive technology system, such as an FM system or personal amplification device be incorporated into the classroom and other noisy environments (id.). Additionally, the evaluator noted the need for collaboration among the student's educators, speech pathologists, and audiologists to select and implement the most suitable technology options for optimal support and inclusion of the student due to her diagnosis of central auditory processing disorder (id.).

The evaluator also indicated a "reported diagnosis of anxiety," and recommended that the student follow up regularly with appropriate health professionals to monitor the student's anxiety and ensure that her therapy and interventions remained effective in supporting her overall wellbeing (Parent Ex. L at p. 16).

With regard to reading, the evaluator recommended the utilization of different methods, programs, techniques, strategies, and resources to address the student's deficits in phonemic decoding and to enhance literacy skills in the classroom and during speech-language therapy and reading specialist services (Parent Ex. L at p. 16). Specifically, the evaluator recommended explicit and systematic phonics instruction that focused on teaching the relationship between sounds and letters, including phonemic awareness, letter-sound correspondences, blending, segmenting, and decoding strategies; as well as multisensory techniques to engage multiple senses while learning phonemic decoding skills, such as using manipulatives, tapping out sounds, tracing letters, and incorporating movement into learning (id. at pp. 16-17). The evaluator also recommended implementing structured literacy programs that followed a sequential and cumulative approach to teaching phonemic decoding skills, integrating phonics, phonemic awareness, fluency, vocabulary, and comprehension instruction (id. at p. 17).

With regard to the recommendation that the student continue to receive speech-language therapy, the evaluator indicated that speech-language therapy should focus on improving auditory processing skills, evaluating and recommending an auditory training program, such as the Listening Program via Advanced Brain Technologies, Earobics, or FastForward, to further support the student's development (Parent Ex. L at p. 17).

The evaluator also recommended ample opportunities for repeated practice with decoding words, including both real and nonsense words, to reinforce phonemic decoding skills and improve automaticity in word recognition; engaging in word study activities focusing on analyzing word patterns, prefixes, suffixes, and root words to help students recognize familiar word parts and apply decoding strategies to unfamiliar words; utilizing visual supports such as graphic organizers, word walls, and visual cues to reinforce phonemic decoding skills; providing additional support during reading and spelling activities; integrating assistive technology tools such as text-to-speech software, speech recognition software, or audiobooks to provide additional support for accessing and decoding written text (Parent Ex. L at p. 17).

Lastly, the evaluator recommended small group or one-on-one instruction tailored to the individual needs of the student, allowing for targeted intervention and support in phonemic decoding skills; specific and constructive feedback to reinforce correct decoding attempts and guiding the student in applying decoding strategies independently; and fostering collaboration between home and school by providing parents with resources and strategies to support literacy skills at home, including activities that reinforce phonemic decoding skills in everyday contexts (Parent Ex. L at p. 17).

An evaluation of the student's visual coordination and processing skills was conducted on March 27, 2024 (Parent Ex. M at pp. 1-10). According to the evaluation report, the student met the criteria for diagnoses of a convergence insufficiency, an accommodative insufficiency/infacility, and a deficit of saccadic eye movements (id. at p. 6). The evaluator recommended that the student begin a program of vision rehabilitative therapy to address her reduced visual coordination and processing skills (id.). It was also recommended that the student wear her reading glasses in school and when she was working on all "near vision tasks," such as homework, reading, video games, and phone use (id.). The evaluator also recommended an OT evaluation to provide additional information on the student's fine motor coordination skills and her need for OT services (id.). Because of the delays in the student's visual processing skills, the evaluator opined that the student may have difficulty understanding complex visual stimuli (graphs, charts), and when appropriate, recommended that complex visual stimuli be verbally explained to her (id.). In addition, it was recommended that the student use a typoscope or card to isolate individual homework problems and that she be provided with the use of a slant board in the classroom (id. at pp. 6-7).

2. Specially Designed Instruction

Documentary evidence in the hearing record regarding the programming at Winston Prep included a program description, the student's fall 2024 progress report, fall progress update, schedule and attendance records (Parent Exs. I; J; K; S). In addition, the parent presented the testimony of the Winston Prep assistant head of school and Focus Program director, the Winston Prep dean, and the parent (Tr. pp. 62-138, 145-89; Parent Exs. P-R).

According to the Winston Prep program description, its students have been diagnosed with language processing disorders, nonverbal learning disabilities, and executive functioning difficulties (Parent Ex. I; see also Parent Ex. P ¶ 9). The school's program serves students in grades 3-12 and is designed to challenge strengths while developing the essentials of reading, writing, mathematics, organization, and study skills (Parent Ex. I). Winston Prep's model of education for the individual provides intense skills remediation while encouraging students to build independence, resilience, responsibility, self-awareness, and self-advocacy (id.). Key to the development of each student is the focus on assessment-based remediation, the daily one-to-one Focus Program, the skill-based curriculum, small homogenous class groupings, an expert faculty, an emphasis on social-emotional development, and a supportive community (id.). Each student's educational program is based upon an in-depth understanding of his/her learning profile that evolves as the student progresses and matures (id.). Skills and content are taught explicitly using multisensory techniques, with an average of ten students or fewer per class (id.).^[9] In addition to its highly individualized education program, Winston Prep offers its students many ways to learn about themselves on their journey (id.). They develop awareness of themselves through all-school experiential learning opportunities; build confidence while rehearsing for a theatre production, and practice creative self-expression through the arts (id.). After school clubs and classes are offered each semester and have included beginner coding, cooking, and basketball (id.).

In terms of addressing the student's needs, review of the evidence in the hearing record shows that the student began attending Winston Prep on September 4, 2024 (Parent Exs. J at p. 1; Q ¶ 12; R ¶ 8). According to affidavit testimony by both the Winston Prep assistant head of school who was also the school's Focus Program director (assistant head of school) and the Winston Prep dean, the school accepts special education students that cannot be appropriately accommodated in a general education program in public school (Parent Exs. P ¶¶ 1, 8; Q ¶¶ 1, 6). Winston Prep's curriculum and program is designed to teach skills to compensate for academic, social and emotional deficits that adversely impact student performance in class (Parent Exs. P ¶ 8; Q ¶ 6). The skills being taught to the special education students at Winston Prep serve to promote learning and academic development throughout the school day and in every class that the student attends (Parent Exs. P ¶ 8; Q ¶ 6). The head of school and the dean testified that OT and speech-language therapy strategies were embedded into the student's program (Parent Exs. P ¶ 11; Q ¶ 6). A school schedule included in the hearing record reflected that the school day consisted of eight periods including academic classes such as history, science, math, language skills, and literature, as well as art and physical education and the Focus Program (Parent Ex. S).

Both the assistant head of school and the dean testified that the student was grouped with peers who had similar cognitive profiles, academic deficits, and academic needs (Parent Exs. P ¶ 8; Q ¶¶ 7, 14). They both testified that the student's instruction was individualized to address her specific learning disabilities in reading, writing and math; auditory processing deficits; receptive and expressive language deficits; and executive functioning and self-regulation deficits (Parent Exs. P ¶ 12; Q ¶ 8). The assistant head of school testified that cohort groupings were based on students within a particular age and grade level that shared a similar learning profile (Tr. p. 113).

In addition, Winston Prep supported the student through its Focus Program (Parent Exs. P ¶ 13; Q ¶ 9). According to the testimony of the assistant head of school and the dean, Focus instruction occurred daily at Winston Prep (Parent Exs. P ¶ 14; Q ¶ 10). Winston Prep used a "Continuous Feedback System" to address the student's needs (Parent Exs. P ¶ 13; Q ¶ 1). ^[10], ^[11] The Focus Program was not a pull-out program; instead, the student's schedule reflects it was a daily class occurring for approximately 47 minutes on Monday, Tuesday, Thursday, and Friday, and for approximately 30 minutes on Wednesday (Parent Exs. P ¶ 13; Q ¶ 9; S). Focus was a oneto-one class for the student that provided targeted support to remediate her deficits and develop her goals through both formal and classroom assessments on an ongoing basis during the school year (Parent Exs. P ¶ 13; Q ¶ 9). Those ongoing assessments continually advised Winston Prep's understanding of the student based on her performance and, in addition, her "areas of challenges" were constantly assessed and monitored during the session meetings with her Focus instructor during the 2024-25 school year (Parent Exs. P ¶ 13; Q ¶ 9). The student's Focus instructor was in constant communication with all of her classroom teachers to ensure they were sharing the same practices and the same understanding of what the student's needs were, and then, addressing them in instruction with appropriate research-based strategies and support (Parent Exs. P ¶ 14; Q ¶ 10). The Focus instructor worked with the student one-to-one to build skills to help her become successful in the classroom in the 2024-25 school year (Parent Exs. P ¶ 24; Q ¶ 19). The student's Focus instructor worked directly with her to remediate her specific learning disabilities in reading, writing and math (Parent Exs. P ¶ 26; Q ¶ 19). The Focus instructor also worked with the student with regard to her executive functioning deficits, academic and social problem solving (Parent Ex. Q ¶ 19; see Parent Ex. P ¶ 12). In addition, the Focus instructor coordinated with the student's teachers to help the student with any areas of her academics where she needed additional support (Parent Ex. Q ¶ 19). Winston Prep used a multisensory approach to instruction and offered research-based strategies to build proficiency in the student's learning that helped the student with difficulties with sight word reading, spelling, and decoding, which impacted her reading comprehension (Parent Exs. P ¶¶ 25-26; Q ¶ 20). In addition, research-based strategies in math were used to help the student learn (Parent Exs. P ¶ 22; Q ¶ 20). The student had a team of teachers who were continually assessing and understanding her responses to instruction and designing a program for her daily (Parent Ex. Q ¶ 21). The student was given feedback that was systematic and clear so that she could understand her progression and her challenges (Parent Exs. P ¶ 27; Q ¶ 21). The student's teachers worked with her to develop strategies to gain skills and to internalize those skills through repetition (Parent Exs. P ¶ 27; Q ¶ 21). In addition, the dean testified that the student received support in time management, processing the tasks asked of her, in verbally expressing herself in response to what was said in class and organizing and completing her work (Parent Ex. Q ¶ 15). She required extra support to organize her work because of her processing and executive functioning deficits (id.). The student received structured support in every class at Winston Prep to help her with organization, planning and execution during the school day (id. at ¶ 16). Given her auditory processing deficits, the student was in a smaller class that reduced noisy distractions and she was near her teacher during instruction that was individualized and modified to meet her needs (id. at ¶ 17).

Within a fall 2024 progress report, the Focus instructor indicated that the student transitioned well to the new routine and had been developing positive relationships with her peers and teachers (id.). The student had been enjoying social opportunities in lunch and during Friday groups (id.). She had shared with her Focus instructor that she was happy and felt comfortable at Winston Prep (id.). The student demonstrated a strong understanding of her strengths and weaknesses and was open to instruction (id.). Based on early instruction with the student, the Focus instructor indicated in the report that at that time, the student still struggled with blends and early syllable types; however, she understood how to code and divide syllables correctly (id.). The student was then-currently advocating for breaks to maintain her level of alertness throughout her Focus class (id.). A working learning profile had been developed and would serve as the basis for remediation based on a 2022 neuropsychological report provided by the parent at the time of the student's enrollment, as well as initial observations and informal assessments (Parent Ex. J at p. 1; see Parent Ex. F). Throughout the year, emphasis would be placed on providing the student with opportunities and the environment to develop "Qualities of a Sustainable and Independent Learner" (QSIL) (id.). Characteristics included Management and Organization, Self-Regulation, SelfAdvocacy, Social/Communication, Social Responsibility, Self-Reflection, Problem Solving, and Resiliency (id.). Naturally occurring situations, as well as formal instruction, would provide the student and her Focus instructor and team, a platform to discuss and apply those specific qualities that lead to progress, increased self-advocacy, independence, and organization (id.). Periodic informal self-evaluation, in regard to those characteristics, would improve the student's awareness of her areas of strength and those areas in need of development (id.). The student would be formally assessed in the spring (2025) in the eight domains of the QSIL to provide a report of patterns of strengths and weaknesses (id.).

The fall 2024 progress report included that Focus goals would be addressed using appropriate methodologies and resources and that implementing Winston Prep's continuous feedback system would ensure frequent assessment of the student's response to programming, which would guide adjustment to materials, methodologies, and goals as warranted (Parent Ex. J at p. 1). Frequent communication would allow for family and school collaboration and inform progress throughout the year (id.). The student's Focus curriculum would center on improving her decoding, reading fluency, reading comprehension, and written expression skills (id.). The student would be given opportunities to further develop the QSIL, particularly in the areas of organization, self-regulation, and social and communication skills (id.). Based on Winston Prep's then-current understanding of the student's strengths and areas for development, the following Focus goals had been developed and would be targeted during the 2024-25 school year to include the QSIL goal to improve organizational skills (management of materials, assignments, and homework), strengthen self-regulation, and strengthen social and communication skills (id. at pp. 1-2). Goals addressing decoding, reading fluency and reading comprehension would target improving the student's phonemic awareness and applying knowledge to decoding and encoding; strengthening her ability to break down and syllabicate words; developing reading fluency, accuracy, and expression; and strengthening comprehension of a text, including vocabulary, and main idea (id. at p. 2). Goals addressing written expression would target improving spelling, improving knowledge of sentence structure (fragments/run-ons/simple/complex), developing pre-writing strategies (brainstorming, categorizing, outlining), improving grammar usage and syntax, and increasing working vocabulary (id.).

The fall 2024 progress report included information about opportunities that would be provided for the student to develop the previously noted QSIL characteristics and strategies/methods the student could use including self-reflection exercises and teacher-led discussions (Parent Ex. J at p. 2). According to the report, the student would continue to be encouraged to self-advocate when support, assistance or additional clarification was needed in the classroom and effort would be made to ensure that she would take ownership of her needs (id.). Self-regulation would also be targeted during that semester (id.). Due to struggles with academic stamina and concentration, the student would take frequent breaks to promote and maintain a level of attentiveness needed to complete her work (id.). Additionally, she would review and be encouraged to employ strategies to actively monitor self-regulation, including use of "Zones of Regulation," a program aimed at helping students learn strategies helpful in regulating their actions (id.). The student would regularly discuss with her instructor whether or not she had effectively used those strategies, setting specific goals for class periods as necessary (id.). Other strategies using "Everydayspeech.com," role-play, Focus group, and teacher-led discussions would be used to help build the student's social and communication skills (id.). Additionally, the student would be encouraged to self-advocate when social communication breakdowns occurred, thereby ensuring practical use of taught strategies were being employed (id.). To further strengthen social and communication skills, the student would participate in a Focus group on Fridays (id.). With teacher facilitation, the student and her peers would have the opportunity to participate in a variety of activities that spark conversation and group problem-solving (id.). The student would be creating her own Vision Board to express her dreams, likes, and interests that she would be able to share with her peers (id.).

The fall 2024 progress report also indicated that in addressing the previously noted decoding, reading fluency, and reading comprehension goals, the Gallisstel-Ellis Test of Coding Skills, an informal reading inventory had been completed that fall, and would help guide instruction (Parent Ex. J at p. 3). To increase phonemic awareness, encoding, and decoding skills; Wonston Prep employed an Orton-Gillingham approach, which was described as "diagnostic and prescriptive to the [student's] specific needs" and "multisensory" (id.). Additional information about decoding and reading comprehension instruction was detailed in the report (id.). Written expression would be targeted using spelling and encoding strategies from the Orton-Gillingham approach and other strategies (id. at pp. 3-4).

The fall 2024 progress report indicated that the student's literature class focused on strengthening the student's literal and abstract comprehension, critical reading analysis, vocabulary development, and expressive language skills using short stories, poems, informational texts and a novel (Parent Ex. J at pp. 4-5). Development of critical thinking skills would be addressed through addressing the student's abilities with regard to inferencing and drawing conclusions (id. at p. 5). The student would develop vocabulary through the understanding of affixes (prefixes, suffixes, root and base words) and strengthen her expressive language skills through discussion and written expression (id.).

In terms of language skills, the fall 2024 progress report indicated that the class would strengthen the student's skills in decoding and encoding, expressive language and group problemsolving (Parent Ex. J at p. 5). The report indicated that among other things, the curriculum would address improving accuracy and fluency of decoding/encoding multisyllabic words and reinforcing written expression using the writing process (brainstorming, categorizing, outlining, editing), specifically working to increase the complexity, length and structure of sentences, paragraphs, and essays (id.). Also, the student would work on increasing ability to recognize and accept differing perspectives and strengthening communication skills to enhance collaborative work (id. at p. 6).

In foundational mathematics, the fall 2024 report indicated that the student would build her mathematical understanding through integrated math topics including geometry and spatial reasoning, numerical operations, number sense and place value, algebraic thinking, and probability and statistics (Parent Ex. J at p. 6). Brain and body breaks were incorporated into the daily class routine in order to build academic stamina (id.). The report indicated that the student would be provided with work that was individualized with respect to what was appropriate for her in terms of amount and rigor (id.). Adjustments would be made to her curriculum based on ongoing assessment of her work and needs (id.). The student had been performing well and was open to learning (id.). She benefited from explicit instruction, many practice items, and individual coaching (id.). Foundational math goals, that had been established for the student, involved building proficiency in numeracy skills and application within connected topics such as geometry, utilizing effective work habits specifically related to math performance, and build academic stamina (id. at pp. 6-7). The report included expectations related to math work (e.g.; correcting mathematical calculations; showing all steps to solve problems; using effective math habits such as clear numeral formation, adequate spacing, etc.), as well as general student skills habits such as keeping reference materials organized and becoming independent in using visual study aids and reference guides, especially as she encountered more challenging work (id. at p. 6). The fall 2024 progress report also indicated that the student's language, reading and writing needs were addressed in her other academic classes (id. at pp. 7-8)

According to the testimony of the Winston Prep dean, the student's literature teacher and language skills teacher were State certified special education teachers and also certified Wilson (reading) practitioners (Tr. p. 101). In addition, testimony by the dean indicated that the student was issued a Chromebook so the Focus teacher could provide instruction on navigating Google Classroom, which included Google Read and Write, and the student could use speech-to-text and text-to-speech (Tr. pp. 79-81, 112-13).

The assistant head of school further testified that the student's OT needs were addressed through strategies embedded in her Focus class, in an art class, and in her need to note-take, and in her use of the Chromebook (Tr. pp. 78-80). While the district criticizes the unilateral placement as lacking related services, that characterization does not entirely capture the evidence regarding the private programming in this case. It is true that formal scheduled sessions are not part of the "embedded" concept used at Winston Prep. The assistant head of school testified that she was a speech-language pathologist and that Winston Prep had approximately five speech-language pathologists on staff (Tr. pp. 70, 174, 187). She noted that goals typically addressed by a speech-language pathologist or an occupational therapist were addressed throughout the school day in Focus and content classes (Tr. p. 74). The student used manipulatives in her math class which helped her visualize the problems or she would use a finger pointer to read while following text (Tr. pp. 150-51). The dean testified that she taught the student broader skills than just the history curriculum, noting that she used the topic and material in history to teach the student academic skills that she could generalize in other areas (Tr. pp. 148-49). The dean also testified as to how speech-language strategies were built into the student's program, for example, by practicing very explicit modeling of following social pragmatic language discussions, provision of prompts for the student to use and internalize, provision of writing examples and comprehension questions and models on how to answer them, all for the purpose of building the student's understanding of information, and to show her direct models for her to use and practice, working towards independence (Tr. pp. 151-52, 174-75).

3. Progress

It is well settled that, while a relevant factor to be considered in determining whether a unilateral placement is appropriate (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).

Both the head of school and the dean of Winston Prep testified that the school-based supports offered to the student to address her special and unique needs in the areas of speech-language, OT, and reading had caused her to make meaningful progress in all of her core subjects (Parent Ex. P ¶ 28; Q ¶ 22). She made meaningful progress socially and emotionally (Parent Ex. P ¶ 28; Q ¶ 22). During the 2024-25 school year she also made progress in her execution of assigned work, reading fluency, reading comprehension, math, critical thinking and written expression (Parent Ex. Q ¶ 16).

The dean also testified that when the student arrived at Winston Prep, she needed to work on her addition and subtraction skills (Tr. p. 177). In September 2024, she was recorded at a certain level, and then she worked with her teacher to reinforce the addition and subtraction concepts (id.). According to the dean, in January 2025 the student took an informal assessment and scored much higher, demonstrating progress (Tr. p. 178). The dean further testified that the student had become less reliant on the provision of visual aids and manipulatives in the classroom (id.). As the student's understanding improved, she used classroom manipulatives to check her work, rather than using them to begin and complete work (id.).

In writing, the dean testified that she saw meaningful progress in the student's skills as the student had progressed from writing one-word answers to then-currently working on "sentencelevel answers" (Tr. p. 184). In reading, the student initially was not able to read passages aloud and sentence-level reading was challenging (id.). At the time of the impartial hearing, the dean reported the student was able to read passages aloud in class (id.). According to the dean, the student had demonstrated progress in these skill areas, was responding positively to the program designed for her, and was able to use the supports and the strategies that Winston Prep had been "working on all year" (id.). In addition, the parent testified that she believed the student had made meaningful progress (Tr. pp. 124, 125, 127-28, 133-34, 138).

While it is unclear the extent to which Winston Prep provided the student with access to hearing assistive technology systems similar to the recommendation in the central auditory processing evaluation, in challenging the IHO's decision, the district has not actually articulated a specific need of the student that had not been addressed in one fashion or another by Winston Prep. Further, courts have often held that the failure of a unilateral placement to provide every related service that would be beneficial to a child given his or her needs will not, by itself, render a unilateral placement inappropriate if the placement as a whole is reasonably calculated to enable the student to receive educational benefits. see, e.g., T.K. v. New York City Dep't of Educ., 810 F.3d 869, 878 [2d Cir. 2016]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 838-39 [2d Cir. 2014]).

While the evidence of progress above is not dispositive of the appropriateness of the unilateral placement at Winston Prep, it tends to support the parent's assertion that Winston Prep was an appropriate placement for the student during the 2024-25 school year. The evidence in the hearing record shows that the student was being provided with specially designed instruction during the 2024-25 school year that was reasonably calculated to enable her to receive educational benefits and, furthermore, that the student's progress at Winston Prep factored in favor of reimbursement when considering the parents' request for reimbursement for the 2024-25 school year.

Considering the totality of the circumstances, I find that the IHO correctly determined that the parent met her burden to demonstrate the appropriateness of her unilateral placement of the student at Winston Prep for the 2024-25 school year. Accordingly, the district's argument to the contrary must be rejected.

C. Equitable Considerations

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

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

The IHO found that the parent's 10-day notice was sent on August 20, 2024, during a period of time between the end of the summer session and the start of the 10-month academic school year, when the district was not in session (IHO Decision at p. 12). The IHO further faulted the parent for waiting "more than two months after" the district failed to convene a CSE and in that the parent "did not ask the [d]istrict to remedy any deficiencies but rather unequivocally stated" that the student had been unilaterally placed (id.) The IHO also found that the parent had enrolled the student at Winston Prep on April 1, 2024 (id.). The IHO found that by sending the 10-day notice letter on August 20, 2024, the parent deprived the district of the opportunity to address the parent's concerns prior to removing the student from public school (id.).

With regard to the IHO's reduction of funding based on the timing of the parent's 10-day notice to the district, under the facts of this matter, the reduction was unwarranted. It is undisputed that the district last convened to develop an IEP on June 8, 2023, and that the student's projected date of annual review was June 8, 2024 (Parent Exs. O at p. 1; N at p. 1). The parent signed the enrollment contract with Winston Prep on June 13, 2024, and sent a 10-day notice letter to the district on August 20, 2024 (Parent Exs. A at p. 1; G at p. 5).

While the parent enrolled the student at Winston Prep prior to sending her 10-day notice, in this instance I do not agree with the IHO that the timing of the parent's 10-day notice letter was a reason to reduce reimbursement in this case. In her August 20, 2024, 10-day notice letter, the parent stated that the decision to unilaterally place the student at Winston Prep "stem[med] from the [district]'s failure to consider the results of [the student]'s current [IEEs] at a [CSE] meeting, offer an appropriate [IEP]" which would provide the student with all appropriate supports, accommodations and research-based methodologies to address her significant learning disabilities, receptive and expressive language deficits, central auditory processing disorder, OT needs, ADHD, executive functioning deficits and all other identified special and unique needs for the 2024-25 school year (Parent Ex. A at p. 1). Review of the enrollment contract reflects that the parent signed it on June 13, 2024, five days after the date of the student's projected annual review (Parent Exs. G at p. 5; N at p. 1).

While the IHO factually erred in finding that the parent signed the enrollment contract on April 1, 2024, even if the parent had, it still would not be a basis to limit reimbursement. The Second Circuit has held that, even when parents have no intention of placing a student in the recommended program, it is not a basis to deny a request for tuition reimbursement absent a finding that the parents "obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA" (C.L., 744 F.3d at 840). Accordingly, the timing of the parent's contract is not, on its own, determinative of the matter.

As of August 20, 2024, the district knew, or at least should have been aware, that it had failed to conduct an annual review of the student on or before June 8, 2024 and revise the student's IEP as necessary.^[12] Given that the purpose of the 10-day written notice is to give the district an

VII. Conclusion

In summary, the IHO correctly found that the parent established that Winston Prep was an appropriate unilateral placement for the student for the 2024-25 school year. However, the hearing record does not lead to the conclusion that the IHO engaged in bias conduct that warranted reversal of the IHO's determinations. Finally, the evidence in the hearing record demonstrates that equitable considerations did not warrant a reduction in the amount of funding requested by the parent and the IHO's finding to the contrary on that point must be reversed.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision dated May 28, 2025, is modified by reversing that potion which found that a reduction in tuition reimbursement was warranted based upon the parent's conduct, and IT IS FURTHER ORDERED that the district shall reimburse the parent in the amount of $800 and directly fund the entire balance of the student's tuition costs at Winston Prep for the 2024-25 school year.

Dated: Albany, New York

May 6, 2026 JUSTYN P. BATES

200.4[e][4]). Furthermore, in a guidance letter the United States Department of Education indicated that parents may request a CSE meeting at any time and that if the district determines not to grant the request, it must provide the parents with written notice of its refusal, "including an explanation of why the [district] has determined that conducting the meeting is not necessary to ensure the provision of FAPE to the student" (Letter to Anonymous, 112 LRP 52263 [OSEP Mar. 7, 2012]; see 34 CFR 300.503; 8 NYCRR 200.5[a]).

Footnotes

[1] The student's eligibility for special education as a student with an other health impairment is not in dispute (see 34 CFR 300.8[c][9]; 8 NYCRR 200.1[zz][10]).

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

[3] The parent's due process complaint notice indicates that it is an amended due process complaint notice, however review of the entire hearing record reflects that the initial due process complaint notice was dated September 20, 2024 (compare Parent Ex. B at p. 1, with Tr. p. 55; Parent Ex. C at p. 1; IHO Ex. II at p. 1; IHO Decision at p. 3).

[4] The parent's request for pendency was withdrawn (Tr. p. 48).

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

[6] The parent's proposed exhibits attached to the request for review are labeled A-E. The parent's proposed exhibit attached to the answer to the cross-appeal is also labeled A.

[7] The parent's request for relief on this basis is very muted in this instance likely because the IHO largely ruled in the parent's favor, albeit not in every respect. Yet the parent continues to press arguments about the IHO's improper failure to recuse and improper conduct during the impartial hearing that "cannot be allowed to stand." If those arguments were to actually bear out, then the appropriate relief would be vacatur of IHO's decision and remand for a new proceeding before a different IHO, but that is clearly not what the parent is seeking.

[8] The prior IEP actually identified all of these areas of need (Paret Ex. N), so one is left to conclude that it was something about the particular interventions that the parent may have found wanting in terms of substance, the one clear allegation being that the ICT setting was too large. But the allegations thereafter were largely procedural in nature, and the failure to convene CSE at all for an annual review for the 2024-25 school year then clouded the entire matter. In the later stages of the impartial parent testified briefly that the student had failing grades in the public school and was making very little progress, and bullying, but those allegations, especially pointed accusations like failing grades and bullying, were left out of the due process complaint (Tr. pp. 124-25).

[9] According to the testimonial affidavits of the Winston Prep dean and the assistant head of school, the needs of each student were differentiated in classes of up to 12 students (Parent Ex. P ¶¶ 8, 17; Q ¶ 8). During the impartial hearing, the dean and assistant head of school appeared and testified that the student was in a classroom of seven students (Tr. pp. 87, 113, 154). The student's grouping consisted of all seventh grade students except for one student in sixth grade (Tr. p 158). Testimony reflected that students were grouped according to their learning profile, which for this student meant the student's cohort worked on strengthening receptive and expressive language (id.). The student primarily worked on decoding and encoding, executive functioning, processing speed, organization, time management and reading comprehension (Tr. pp. 91-92, 158). Instruction was individualized for the student (i.e.; in writing, she might have worked on creating complete sentences while other students might have worked on writing paragraphs (Tr. pp. 154-55).

[10] The dean testified that the continuous feedback system was the school's process of consistently assessing a student to be able to pinpoint where a student was in a specific skill, meet them where they were and work from there (Tr. pp. 114-15).

[11] The student's history teacher, who was also her academic dean, testified that on Wednesdays, Winston Prep held weekly meetings with the student's team of teachers to identify any issues or successes the student was having in the classroom (Tr. p. 152; see Tr. pp. 146-47 and Parent Ex. J at p. 7). She noted that if the team could identify where the student needed more support, they could slow down, revisit, or reinforce ideas where the student might have needed more support "across the board" (Tr. pp. 152-53). By sharing information, the team stayed up to date on the student's progress and performance (Tr. pp. 153, 164-65). The team kept strategies that worked for the student "unified" across the board, whereby the team assessed how the student was doing with those strategies (Tr. p. 177).

[12] In addition to the district's general obligation to review the IEP of a student with a disability at least annually, federal and State regulations require the CSE to revise a student's IEP as necessary to address "[i]nformation about the child provided to, or by, the parents" during the course of a reevaluation of the student (34 CFR 300.324[b][1][ii][C]; 8 NYCRR 200.4[f][2][ii]), and State regulations provide that if parents believe that their child's placement is no longer appropriate, they "may refer the student to the [CSE] for review" (8 NYCRR opportunity, before the child is removed, to convene a CSE and to develop an IEP, the district had already failed to timely reconvene the CSE and it cannot be said that the timing of the parent's 10- day written notice interfered with the district's opportunity to remedy the failure to convene the CSE for an annual review meeting. Based on the foregoing, there is no equitable basis for reducing or denying the parent's request for direct funding and reimbursement of the cost of the student's attendance at Winston Prep for the 2024-25 school year.