STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-074
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Cuddy Law Firm, PLLC, attorneys for petitioner, by Benjamin M. Kopp, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Sarah M. Pourhosseini, Esq.
I. Introduction
This State-level administrative review is being conducted pursuant to an order of remand issued by the United States District Court for the Southern District of New York for the limited purpose of determining "'whether the student was denied a free … appropriate public education with respect to academic and [bilingual speech-language therapy] services'" (Y.S. v. New York City Dep't of Educ., 23-CV-07317 [S.D.N.Y. Jan. 15, 2026]). This proceeding initially arose 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), as relevant to this administrative review, previously appealed from the decision of an impartial hearing officer (IHO), which found that the educational program respondent (the district) recommended for her daughter for the 2020-21 school year was appropriate and denied the parent's request for compensatory educational services. Having provided the parties with an opportunity to be heard and upon reexamination of the hearing record of the impartial hearing proceedings, the prior State-level submissions and administrative decisions, as well as the District Court's order of remand, the evidence demonstrates that the delay in transmitting the February 2, 2020 IHO Decision did not constitute a denial of a free appropriate public education (FAPE) and the parent, as explained herein, is not entitled to an additional award of compensatory educational services for the 2020-21 school year.
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 detailed facts regarding the student's educational history and the prior procedural history of this case at the school district and administrative hearing levels were set forth in Application of a Student with a Disability, Appeal No. 23-024 and Application of a Student with a Disability, Appeal No. 24-429. The parties' familiarity with those matters and the IHO's decision is presumed; however, the judicial review that followed the local and State-level administrative proceedings and the subsequent remand by the District Court are set forth below with some pertinent facts repeated from the prior State-level decision to provide the relevant context for this determination.
The student in this case has been diagnosed as having a "mild ASD [autism spectrum disorder]" and an attention deficit hyperactivity disorder-combined type (ADHD), and initially began receiving special education and related services through the Early Intervention (EI) program and Committee on Preschool Special Education (CPSE) (Parent Ex. Q at p. 3; Dist. Ex. 1 at pp. 2, 4-5). The district found the student eligible to receive school-aged special education and related services as a student with autism in April 2018 (kindergarten) (see Parent Ex. I at p. 1, 10).[1] During the 2018-19 school year, the student attended a 12:1+1 special class placement in a district specialized school and received related services consisting of occupational therapy (OT), physical therapy (PT), and speech-language therapy pursuant to the recommendations in the student's April 2018 IEP (see Tr. pp. 30-33).[2]
In a letter to the district dated February 5, 2019, the parent expressed disagreement with the district's January 2018 evaluations of the student's academic, social/emotional, and behavioral abilities (see Parent Ex. BB at p. 3). As a result, the district reevaluated the student in April 2019 by completing a social history update, a classroom observation, a bilingual speech-language therapy evaluation, an OT evaluation, and a PT evaluation; in May 2019, the district also completed a functional behavioral assessment (FBA) of the student (see generally Parent Exs. R-V; Dist. Ex. 1).
By letter dated May 21, 2019, the parent expressed disagreement with the district's April and May 2019 reevaluation of the student (see Parent Ex. C at p. 4). Thereafter, in a due process complaint notice dated May 24, 2019 (May 2019 due process complaint notice), the parent alleged that the district failed to offer the student a FAPE for the 2016-17, 2017-18, and 2018-19 school years (id. at p. 3).
In the meantime, the student continued to attend the district in the same special class placement at a district specialized school for the 2019-20 school year (first grade) (see Tr. pp. 30-33).
On February 2, 2020, the IHO presiding over the impartial hearing related to the parent's May 2019 due process complaint notice issued a final decision in that matter (February 2020 IHO decision) (see Parent Ex. C at p. 6). According to the February 2020 IHO decision, although the parent had expressed disagreement with the district's April and May 2019 reevaluation of the student, the district had not filed its own due process complaint notice to defend the appropriateness of the reevaluation (id. at p. 4). As relief, the IHO ordered the district to directly fund (or to reimburse the parent for) an independent educational evaluation (IEE), including, as relevant to the instant administrative review, an independent bilingual neuropsychological evaluation and an independent bilingual speech-language therapy evaluation (id. at pp. 5-6). In addition, the IHO ordered the district to reevaluate the student in "all areas of her suspected disabilities not identified [therein] and not evaluated within the last two years" (id. at p. 6). The IHO also ordered the district to convene a CSE meeting to "produce a new IEP for the student that consider[ed] all of the student's available evaluations and any related information and produce a new IEP" for the student for the 2020-21 school year (id.).
In or around April 2020, the district shifted to remote instruction due to the COVID-19 pandemic; the student's special education remote learning plan included the delivery of one 30-minute session per week of counseling (English), one 30-minute session per week of speech-language therapy (English), and one 30-minute session per week of OT (English) (see Parent Ex. H at p. 1).
On June 26, 2020, the district's impartial hearing office transmitted the February 2020 IHO decision to the parties (see Parent Ex. B at p. 3). Evidence in the hearing record reflects that the district acknowledged that the delayed transmittal of the February 2020 IHO decision was due to "'clerical oversight and [the] volume of cases'" (id.). By letter dated August 3, 2020, the parent filed a State complaint with the New York State Education Department, alleging that the district's impartial hearing office failed to mail the final decision to the parties in a timely manner (id. at p. 1).
For the 2020-21 school year (second grade), the student continued to attend the same district specialized school she had attended since kindergarten, with instruction provided remotely due to the COVID-19 pandemic (see Tr. pp. 30-33; see also Parent Ex. E at p. 3).
Pursuant to the February 2020 IHO decision, a neuropsychological evaluation of the student was conducted on various dates in July 2020 and a report was issued on September 18, 2020 (Parent Ex. Q at p. 1). An independent speech-language pathologist evaluated the student on September 28, 2020 and issued an evaluation report (Parent Ex. P at p. 1).[3]
In a letter dated September 29, 2020, the Office of Special Education sustained the parent's State complaint alleging that the district failed to timely transmit the February 2020 IHO decision to the parties until June 26, 2020 (see Parent Ex. B at pp. 1, 3). However, the Office of Special Education also determined that "no further action [wa]s required as the final decision and orders ha[d] been transmitted to the parties" (id. at p. 3).
The district scheduled a CSE meeting for October 1, 2020, which was then rescheduled to October 8, 2020 (Parent Exs. A at p. 5; G at p. 5; X ¶ 12).[4], [5] A CSE convened on October 8, 2020 and created an IEP for the student with a projected implementation date of October 8, 2020 (see Parent Ex. G at pp. 1, 27). The October 2020 CSE received and considered the September 2020 independent bilingual speech-language evaluation, however, the September 2020 neuropsychological evaluation was not available to the CSE (Parent Verified Response ¶ 17; Dist. Supp. Brief ¶ 8). The October 2020 CSE recommended that the student receive 12-month services, delivered in English, which consisted of a 12:1+1 special class placement in a "non-specialized" district community school with the following related services: one 30-minute session per week of counseling in a group, two 30-minute sessions per week of OT in a group, one 30-minute session per week speech-language therapy in a group (classroom), one 30-minute session per week of speech-language therapy per week in a group (therapy room), and one 30-minute session per month of parent counseling and training services (id. at pp. 21-22).
On February 19, 2021, the parent obtained the independent PT evaluation of the student and on March 22, 2021, the district conducted a psychological evaluation update of the student (see Parent Exs. L at p. 1; N at p. 1). On April 19, 2021, a CSE convened and developed the student's IEP for the 2021-22 school year (third grade) (Parent Ex. F at pp. 1, 27). The April 2021 CSE had the report of the July 2020 neuropsychological evaluation available to it (id. at pp. 1-2). Based on the evaluative information available, the April 2021 CSE recommended that the student receive 12-month services consisting of a 12:1+1 special class placement in a State-approved nonpublic school together with the following related services: one 30-minute session per week of counseling in a group, two 30-minute sessions per week of individual OT (therapy room), one 30-minute session per month of parent counseling and training, two 30-minute sessions per week of individual OT (classroom), two 30-minute sessions per week of individual PT, and three 60-minute sessions per week of individual speech-language therapy (id. at pp. 22-24).
By due process complaint notice dated May 16, 2022, the parent alleged that the district failed to offer the student a FAPE for the 2019-20, 2020-21, and 2021-22 school years (see Parent Ex. A at pp. 1, 7). Specific to the 2020-21 school year, the parent asserted that the district significantly impeded the student's comprehensive IEEs by failing to provide the parent with the February 2020 IHO decision until June 26, 2020, and by failing to sufficiently evaluate the student in a timely manner to identify and accommodate her needs (id. at pp. 2-3). The parent further argued that these delays impeded the student's right to a FAPE and significantly impeded the parent's meaningful participation in the decision-making process (id. at p. 4).
Next, the parent alleged that the October 2020 IEP failed to offer the student a FAPE because the CSE failed to offer an appropriate program to the student, specifically noting that the October 2020 IEP did not reflect the student's evaluations (see Parent Ex. A at p. 5).
As relief for these alleged violations, the parent sought an order directing the district to provide the student with "compensatory academic and related services, at an enhanced rate, with the appropriate nature and total hours of such to be determined following the above evaluations;" and an order awarding "related services, at an enhanced rate, with the appropriate nature and total hours of such to be determined following the above evaluations" (Parent Ex. A at pp. 7-8).
Following an impartial hearing related to the parent's May 2022 due process complaint notice, an IHO issued a decision, dated January 8, 2023 (January 2023 IHO decision), which found that the district offered the student a FAPE for the 2019-20, 2020-21, and 2021-22 school years, and, therefore, denied all of the parent's requested relief (see IHO Decision at p. 21).
In a State-level administrative appeal from the January 2023 IHO decision, the parent argued, in part, that the IHO erred by finding that the district offered the student a FAPE for the 2020-21 school year and by denying the parent's request for compensatory educational services (see Application of a Student with a Disability, Appeal No. 23-024). As relevant herein, the parent asserted that the IHO failed to find that the district significantly impeded the parent from obtaining the evaluations as ordered in the February 2020 IHO decision, and by failing to find that the October 2020 IEP failed to provide the student with an appropriate program (id.).
On April 20, 2023, the undersigned sustained the parent's appeal, in part (see Application of a Student with a Disability, Appeal No. 23-024). With respect to the 2020-21 school year and the parent's allegations pertaining to the delayed transmittal of the February 2020 IHO decision, it was determined that the parent's claim concerned the enforcement of the prior February 2020 IHO decision, and, therefore, the SRO had no jurisdiction to review the claim (id.; see Educ. Law §§ 4404[1][a]; [2]; see, e.g., A.R. v. New York City Dep't of Educ., 407 F.3d 65, 76, 78 n.13 [2d Cir. 2005] [noting that IHOs do not retain jurisdiction to enforce their orders and that a party who receives a favorable administrative determination may enforce it in court]; A.T. v. New York State Educ. Dep't, 1998 WL 765371, at *7, *9-*10 & n.16 [E.D.N.Y. Aug. 4, 1998] [noting that SROs have no independent "administrative enforcement" power and granting an injunction requiring the district to implement a final SRO decision]).
Relevant to this remand, with regard to the October 2020 IEP, it was noted that, as of the initial appeal, the parent raised allegations related to an incorrect change in placement, 12-month services, removal of a "'limited English proficiency'" notice, assistive technology, PT, counseling and parent counseling and training, speech-language therapy services, and testing accommodations; however, many of those claims were found to be outside the scope of the hearing and the only issues that remained on appeal were "the parent's claims that the district failed to provide her with appropriate meeting notices for the October 2020 CSE meeting and that the October 2020 IEP failed to recommend any PT services for the student" (see Application of a Student with a Disability, Appeal No. 23-024 at p. 25).
Overall, in the April 20, 2023 decision, the undersigned denied the parent's claims related to the October 2020 CSE meeting, determined that the district did not implement the April 2021 IEP from May 4, 2021 until December 31, 2021, and awarded compensatory services consisting of 150 hours of 1:1 instruction by a special education teacher and 15.5 hours of PT services (Application of a Student with a Disability, Appeal No. 23-024 at pp. 26-30, 37).
The parent sought judicial review of the undersigned's April 20, 2023 State-level decision in the United States District Court for the Southern District of New York (see Y.S., 2024 WL 4355049).
Relevant to this remand, the District Court, in a decision dated September 30, 2024, found that the parent's due process complaint notice "charged the [district] with failing to timely ensure that the requested IEEs were provided at public expense (namely by failing to transmit or otherwise act on the IHO's order for six months), and alleged that this failure rendered [the student's] IEP inadequate by obscuring [the student's] purported needs for certain academic interventions as well as bilingual [speech-language therapy] and PT services" (Y.S., 2024 WL 4355049 at *13). The Court further noted that "the delay related to the completion of the IEEs could only have affected the information available to the CSE that convened on October 8, 2020" and "thus . . . this alleged procedural violation bears at most on the adequacy of the October 2020 IEP" (id. at *13 n. 11).
Turning to the October 2020 IEP, the Court specifically addressed the scope of the hearing, noting that the parent's due process complaint notice "listed four specific substantive deficiencies in the October 2020 IEP, conveniently under the caption, 'The DOE's October 8, 2020 IEP failed to mandate an appropriate program': (1) it affirmatively indicated that S.F. needed assistive technology but failed to mandate an appropriate device; (2) it failed to mandate 'any research-based methodology for students with autism and language disorders'; (3) it failed to mandate any PT; and (4) it failed to mandate a paraprofessional" (Y.S., 2024 WL 4355049, at *19). The Court then specifically determined that "the [district] was under no obligation to divine any other deficiencies in the October 2020 IEP from the due process complaint's sprawling descriptions of the independent evaluators' recommendations, unsupported accusations that the [district] sought to distort the results of these independent evaluations, and broad references to [the student's] 'needs' that were purportedly left unaddressed in the various IEPs at issue across three different school years" (id.).
Prior to turning to the absence of a recommendation for PT in the October 2020 IEP, the Court found that "the SRO did not err in finding that the only allegation concerning the substantive adequacy of the October 2020 IEP concerned the absence of PT services" (Y.S., 2024 WL 4355049, at *19). With respect to PT services, the court then remanded the matter as the analysis used by the SRO "may [have been] affected by the Court's determination above concerning [the student's] claim that the [district] untimely complied with her IEE requests" (id. at *20).
On remand, the District Court ordered the SRO to consider the following: first, whether the district "timely acted on [the parent's] request for [IEEs]"; and second, "only to the extent required by any determination on that issue, to consider the adequacy of the October 2020 IEP with respect to its failure to include a mandate for [PT] services" (Y.S., 2024 WL 4355049, at *23). With respect to the consideration of the parent's request for IEEs, the District Court noted that a district's failure to timely act on a request for IEEs "may constitute a procedural violation of the IDEA" (Y.S., 2024 WL 4355049, at *13, citing Taylor v. Dist. of Columbia, 770 F. Supp. 2d 105, 109-10 [D.D.C. 2011] and Pajaro Valley Unified Sch. Dist. v. J.S., 2006 WL 373, at *3 [N.D. Cal. Dec. 15, 2006]). The Court also noted, however, that "not every procedural violation results" in a denial of a FAPE; rather, procedural violations "render an IEP inadequate only where they '(1) impeded the child's right to a FAPE, (2) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE, or (3) caused a deprivation of educational benefits'" (Y.S., 2024 WL 4355049, at *13, citing S.W. V. New York City Dep't of Educ., 92 F. Supp. 3d 143, 155 [S.D.N.Y. 2015]).
In a decision dated November 7, 2024, the undersigned addressed the District Court's September 30, 2024 remand of this matter and determined that the district's failure to timely transmit the February 2020 IHO decision to the parties constituted a procedural violation that impeded the student's right to a FAPE from October 2020 through the implementation date of the April 2021 IEP, because the April 2021 CSE recommended that the student receive PT services based on the delayed March 2021 independent PT evaluation, which was not available to the October 2020 CSE (Application of a Student with a Disability, Appeal No. 24-429). However, in reviewing whether to award additional compensatory PT services, the undersigned noted that the purpose of school-based PT services would have been to provide support to help the student physically participate within the context of her educational program and found that compensatory PT services were not warranted as the student was not attending school in person at the time and did not require PT services to participate in her remote educational program (id. at pp. 11-12).
On October 14, 2025, the Second Circuit affirmed the September 30, 2024 District Court decision, in part, and vacated it, in part, directing the matter be remanded to consider the claims in the parent's due process complaint notice "that the [district]'s delay in transmitting the February 2020 Decision denied [the student] a FAPE by rendering the October 2020 IEP inadequate with respect to academic and [bilingual speech-language therapy] services" (Y.S. v. New York City Dept. of Educ., 2025 WL 2910307 at *4 [2d Cir. Oct. 14, 2025]). With respect to the remanded claims, the Second Circuit noted that the due process complaint notice included a claim that the district "'significantly impeded' [the student's] comprehensive evaluation by failing to timely deliver . . . the February 2020 IHO decision ordering various independent bilingual evaluations" adding that the District Court recognized "'this failure rendered [the student's] IEP inadequate by obscuring [her] purported needs for certain academic interventions as well as bilingual [speech-language therapy] and PT services'" (id.).
On January 15, 2026, the District Court issued an order of remand, which directed the undersigned to conduct an analysis of whether the delayed IEE impacted the October 2020 IEP and whether the student was denied a FAPE "with respect to academic and [bilingual speech-language therapy] services" (Y.S. v. New York City Dept. of Educ., 23-CV-07317 [S.D.N.Y. Jan. 15, 2026]) Accordingly, as part of the review process and in response to the District Court's concerns, in a letter dated January 22, 2026, the parties were offered an opportunity to be heard by submitting their respective positions regarding the issues remanded and were directed to the standards applied with respect to the previously remanded issue of PT in Application of a Student with a Disability, Appeal No. 24-429.
IV. Arguments on Remand
Each party submitted a supplemental brief after remand. The parent asserts that the district's delay in submitting the February 2020 IHO decision regarding the awarded IEE substantively denied the student a FAPE. The parent affirms that the independent September 2020 bilingual speech-language therapy evaluation was completed prior to the October 2020 CSE meeting, but asserts that the independent neuropsychological evaluation was not available until November 2020. According to the parent, the April 2021 CSE, in reviewing the independent neuropsychological evaluation "took an entirely different perspective of both [the student's] bilingual speech-language therapy needs and her placement" from the October 2020 CSE. The parent argues that she should be awarded 81 hours of compensatory bilingual speech-language therapy and 145 hours of compensatory tutoring.
In its supplemental brief, the district argues that the delay in transmitting the February 2020 IHO decision did not deny the student a FAPE. The district asserts that the October 2020 CSE had received and considered the independent September 2020 speech-language therapy evaluation and that the parent had received the report of the independent neuropsychological evaluation in September 2020 but did not inform the district of her receipt of the evaluation report or forward it to the district for consideration until later. The district further asserts that "using the evaluations available to it, the October 2020 CSE identified the student's educational needs and developed an appropriate program for the student. According to the district, "[t]he fact that any subsequent CSE acceded to [p]arent's request for bilingual [speech-language therapy] is irrelevant to whether the October 2020 CSE made an appropriate determination" (id.). The district requests that the parent's request for relief be denied.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[6]
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. Transmittal of the February 2020 IHO Decision
As remanded by the District Court, it must be determined whether the late transmittal of the IHO's February 2020 IHO decision to the parent constituted a procedural violation and whether such a violation interfered with the student's substantive rights (Y.S., 23-CV-07317, at p. 2).
Initially, the question of the delivery of the February 2020 IHO Decision to the parties was addressed after the initial remand, as related to PT services (Application of a Student with a Disability, Appeal No. 24-429). According to State regulation, an IHO is required to "mail a copy of the written, or at the option of the parents, electronic findings of fact and the decision to the parents and to the board of education" no later than 14 days from the date the IHO closes the hearing record (8 NYCRR 200.5[j][5]). Here, the district received the IHO Decision on February 2, 2020; however, it is undisputed that the February 2020 IHO decision was not transmitted to the parent until June 26, 2020 (Parent Ex. B at p. 3). As a result, there can be no question that the district violated State regulation.
Turning to the substance of the parties' dispute on this second remand, an assessment must be made as to whether the delay in obtaining the IEE ordered by the IHO—which was due to the late delivery of the February 2020 IHO decision—impacted the October 2020 CSE and whether the student was denied a FAPE with respect to academic and speech-language therapy services.
As referenced in the prior remand, there is at least one District Court decision that provides some guidance as to when a delay in conducting an IEE could result in a denial of a FAPE (Application of a Student with a Disability, Appeal No. 24-429). In tackling a similar issue in Herrion v. District of Columbia, the Court found that, while it was well settled that the failure to timely evaluate a student constituted a procedural violation, the failure to "provide a child with disabilities and her parents with an [IEE] at public expense, c[ould]—at least at times—'significantly compromise[] [the child's] educational opportunities and [could thereby] den[y] him a FAPE'" (Herrion v. Dist. of Columbia, 2023 WL 2643881, at *8-*9 [D.D.C. Mar. 27, 2023], citing Hill v. Dist. of Columbia, 2016 WL 4506972, at *18 [D.D.C. Aug. 26, 2023] [concluding that, where a delayed evaluation proposed recommendations that were, because of the delay, not considered by the IEP team, the delay "caused a deprivation of [the student's] educational benefits"]). The Herrion Court analogized that it was "possible, of course, that a delay in conducting a required IEE—or a failure to provide a child and her parents with the means of obtaining an IEE altogether—might not 'affect [a student's] substantive rights,' where, for example, 'the student's education would not have been different had there been no delay'" (Herrion, 2023 WL 2643881, at *9). The Court explained that this "might be the case" if, for example, a hearing record did not contain evidence that the student's placement would differ if the evaluations had been completed or if the evaluations, once completed, did not result in any change to the student's placement or education (id.).
Initially, the February 2020 IHO decision ordered the district to pay the costs of an IEE described as an independent bilingual neuropsychological evaluation, independent bilingual FBA, an independent PT evaluation, and an independent speech-language therapy evaluation (Parent Ex. C at pp. 5-6). The independent bilingual neuropsychological evaluation was conducted over four dates in July 2020 and the report was completed on September 18, 2020 (Parent Ex. Q at p. 1).[7] The independent bilingual speech-language therapy evaluation was conducted on September 28, 2020 (Parent Ex. P at p. 1). The independent PT evaluation was conducted on February 19, 2021 and the report was completed on March 26, 2021 (Parent Ex. L at pp. 1, 6).[8] The independent FBA was conducted over three dates in April 2021 and the report was completed on June 13, 2021 (Parent Ex. J).[9]
The parties' arguments on appeal focus on the independent bilingual neuropsychological evaluation and the independent bilingual speech-language therapy evaluation. Both parties assert in their respective supplemental briefs that the October 2020 CSE considered the independent bilingual speech-language therapy evaluation, which was conducted on September 28, 2020 (Parent Verified Response ¶ 17; Dist. Supp. Brief ¶ 8; Parent Ex. P). In addition, the parent testified that the October 2020 CSE considered the bilingual speech-language therapy evaluation but did not address the evaluator's recommendation for bilingual speech-language therapy services (Parent Ex. X ¶13). While neither party asserts that the independent bilingual neuropsychological evaluation was reviewed by the October 2020 CSE, the hearing record reflects, and the parent admits, that the independent neuropsychological evaluation was conducted in July 2020 and a report was "issued in September 2020," prior to the October 2020 CSE meeting (Parent Exs. Q at pp. 1, 2; X ¶ 9). Therefore, this case is distinguishable from Application of a Student with a Disability, Appeal No. 24-429 because, unlike the PT evaluation that was at issue in that matter (which was conducted in February 2021 and completed in March 2021, well after the October 2020 CSE meeting), both the speech-language therapy and neuropsychological evaluations were completed before the October 2020 IEP meeting. As those evaluations were available at the time of the October 2020 CSE meeting, any superseding delay in the issuance to the parties of the February 2020 IHO decision did not cause the information in those evaluations to be excluded from consideration by the October 2020 CSE.
Further, to the extent that the parent asserts that the bilingual neuropsychological evaluation report was not available in September 2020, there is little information in the hearing record to support this assertion. The evaluation was conducted in July 2020 and the report itself is dated September 18, 2020 (Parent Ex. Q). The parent testified that the report was "issued in September 2020," but the evaluator who conducted it "agreed to look at some updates" and reissued the report in November 2020 (Parent Ex. X ¶9). According to the parent, the district held the CSE meeting on October 8, 2020 when the parent "thought that we were waiting until the evaluations were completed" (id. ¶12).[10] However, the parent has not explained, either during the initial hearing in this matter or through the subsequent appeals and remands, what changes were made to the initial September 2020 report of the bilingual neuropsychological evaluation, or why the document does not include a corresponding date in November 2020 for the purported updated report. Accordingly, as there was a report of the July 2020 neuropsychological evaluation available—without further explanation—the delay in issuing the February 2020 IHO decision until June 26, 2020 did not interfere with the parent's ability to have the bilingual neuropsychological evaluation completed prior to the October 2020 CSE meeting.
Based on the above, the hearing record does not support finding that the delay in issuing the February 2020 IHO decision resulted in a denial of a FAPE with respect to the September 2020 bilingual speech-language therapy evaluation, or the September 2020 bilingual neuropsychological evaluation. Nevertheless, as there were other outstanding evaluations awarded in the February 2020 IHO decision, which were not conducted prior to the October 2020 CSE meeting, an analysis will be made as to whether the lack of any evaluative information would have changed the October 2020 CSE's recommendations with respect to the remanded issues of academic and speech-language therapy services.
With respect to speech-language therapy services, the parent asserts that the CSE took a different approach in recommending bilingual speech-language therapy services in June 2021 after reviewing the results of the independent neuropsychological evaluation report.
The October 2020 IEP reflected that the CSE considered the results of several recent evaluations of the student, including the Fall 2019 Student Annual Needs Determination Inventory (SANDI), the Fountas and Pinnell Leveled Literacy Intervention System, the Winter 2020 Literacy Foundational Skills Continuum and Winter 2020 Math Foundational Skills Continuum, the April 2019 speech-language therapy evaluation, the December 2019 Vineland Adaptive Behavior Scales-Third Edition, the May 2019 FBA, the April 2019 OT evaluation, and the April 2019 PT evaluation (Parent Ex. G at pp. 1-3, 6, 8-9).
As relevant to this discussion, according to the April 2019 bilingual speech-language therapy evaluation conducted by a bilingual speech-language pathologist (evaluator), both the parent and the student's school-based speech-language pathologist reported that the student was bilingual and she was exposed to English and Spanish at home (Parent Ex. T at pp. 1, 2, 3). Responses to a parent questionnaire indicated that English and Spanish were "equally used in the household," while the speech-language pathologist reported that the student's father spoke Spanish and the mother spoke both languages (id. at pp. 2, 3). The evaluator reported that at school, the student "prefer[red] to speak in English to both English and Spanish speakers" (id. at p. 3). The evaluator reported that she assessed the student in both English and Spanish, and while the student was able to understand simple Spanish words when spoken to and have simple conversations with the evaluator, she reported that the student's "dominance appear[ed] to be shifting to English when responding" (id. at pp. 2, 7). For example, "[w]hile the evaluator communicated mainly in Spanish, [the student] frequently code-switched to answer in English due to reduced Spanish vocabulary" (id. at p. 2). The evaluator concluded that the student was "able to express her wants and needs in English with understanding simple Spanish conversation" (id. at p. 7). The evaluator also concluded that the student's receptive and expressive language skills and social and pragmatic skills fell "within the below average to average range . . . and demonstrate[d] an educational impact," recommending that the student receive speech-language therapy without specifying whether the services should be delivered monolingually or bilingually (see id. at pp. 8-9).
The October 2020 IEP generally reflected results of the April 2019 bilingual speech-language therapy evaluation (compare Parent Ex. G at p. 2, with Parent Ex. T). According to the IEP, the student was a bilingual speaker of English and Spanish and was exposed at home to both languages, "her preferred and dominant language [wa]s English," and she "primarily receive[d] exposure to English at school and in the community with peers and adults" (Parent Ex. G at p. 2; see Parent Ex. T at pp. 2, 3, 7-8). The IEP indicated that the student "demonstrated appropriate comprehension of visual information presented in both English and Spanish," and "[s]he produced simple words in Spanish when answering questions in Spanish, but was able to produce complete sentences in English" (Parent Ex. G at p. 2; see Parent Ex. T at p. 8). The IEP included that the parent reported that the student understood Spanish but did not "prefer to speak in Spanish and w[ould] generally speak in English" (Parent Ex. G at p. 7).[11]
The October 2020 IEP also reflected information about the student's performance during speech-language therapy at the time of the CSE meeting (Parent Ex. G at p. 3). According to the IEP, the student "ha[d] demonstrated a preference for English when responding to academic activities and when speaking socially with adults and peers" and "demonstrated strong English proficiency throughout a variety of tasks throughout the school day" (id.). Accordingly, the IEP indicated that the student was "verbal," interacted appropriately with familiar and unfamiliar adults and peers, played cooperatively with peers, expressively engaged in conversations, asked questions, made comments, and had several friends in school (id.). The IEP indicated that moving forward the student's therapy would "target literacy and social skills" and, due to her progress and completion of annual goals, a recommendation was made to change the student's "mandate" in order to "promote least intensive services" (id.).
As relevant to this issue, given the student's language and social pragmatic delays, the October 2020 CSE recommended one 30-minute session of group speech-language therapy per month in the classroom (English), and one 30-minute session of speech-language therapy per month in the therapy room in a group of three (English) (Parent Ex. G at pp. 2, 22; see Parent Ex. T at p. 8). At this time the undersigned is asked to review the September 2020 independent bilingual speech-language therapy evaluation and the independent bilingual neuropsychological evaluation, to determine whether the October 2020 CSE should have recommended bilingual speech-language therapy for the student.
According to the September 2020 independent bilingual speech-language therapy evaluation report, the evaluation was conducted in both English and Spanish as the student was exposed to both languages at home (Parent Ex. P at pp. 1, 2). The independent evaluator administered the Clinical Evaluation of Language Fundamentals, 5th Edition (CELF-5) and the Clinical Evaluation of Language Fundamentals Spanish, 4th Edition (CELF-4 Spanish) to the student to assess the student's language skills in both English and Spanish (id. at p. 3).[12] The independent evaluator concluded that the student exhibited "delays in expressive, receptive and pragmatic language in both Spanish and English, which put her at risk for further delays in language functioning" (id. at p. 9). Recommendations included that the student "receive individual, bilingual (Spanish) language therapy for 3 hours per week on an ongoing basis" to target her language deficits (id.).[13]
The September 2020 neuropsychological evaluation of the student, which had not been made available to the October 2020 CSE, reflected that as a younger child the student used both English and Spanish, and currently lived "in a bilingual Spanish/English household, but [wa]s English dominant" (Parent Ex. Q at pp. 3, 4, 15).[14] Review of the independent neurological evaluation report did not indicate that any of the assessments were administered to the student in Spanish or bilingually (see id. at pp. 1-19). During the evaluation, the student preferred to speak English and "spoke in English exclusively, although she was able to respond to questions in Spanish" (id. at pp. 13, 14). At the time of the evaluation, the neuropsychologist reported that due to remote learning, necessitated by the COVID-19 pandemic, the student was "obviously more exposed to Spanish than she had been before, because she [wa]s spending all her time at home," concluding that "[o]bservation confirm[ed] poor receptive and expressive language in both English and Spanish" (id. at pp. 1, 13).
The neuropsychologist also concluded that the student had failed to make adequate progress in her current educational program, which she opined did not provide adequate individual attention and specialized instruction for students with autism and language disorders (Parent Ex. Q at p. 17). She recommended that the student receive two sessions per week of compensatory 1:1 multisensory academic tutoring for two years; however, she did not indicate a lack of bilingual speech-language therapy as a basis for this recommendation (see id.). The neuropsychologist also recommended "[c]ontinued and compensatory speech/language therapy, as recommended by the most recent" September 2020 evaluation, but did not otherwise recommend that the student receive other forms of bilingual instruction (see id. at pp. 17-19).
The parent's and the independent evaluators' conclusions that the student had failed to make adequate progress is not borne out by the October 2020 IEP's present levels of performance (compare Parent Exs. P at p. 9 and Q at p. 17, with Parent Ex. G at pp. 2-8). Specifically, review of the October 2020 IEP shows that, at school, the student was effectively communicating her wants and needs, was social with adults and peers, was meeting academic and communication annual goals, her social skills had improved, and she did not exhibit behaviors that interfered with her learning related to a communication deficit, such that she required bilingual speech-language therapy in order to access her instruction and interact with others (see id. at pp. 2-8). The teacher reported that the student was able to follow classroom rules, identify letters and letter sounds and sight words, answer "wh" questions after listening to a story, write her first and last name, all letters and numbers and draw simple shapes, and add numbers to 10 and subtract numbers to 5 with supports (id. at pp. 3-4). The student reportedly liked to be the classroom helper, offered assistance to peers, consistently participated in lessons, liked to be engaged, raised her hand, waited her turn, and comforted classmates when they were upset (id. at p. 4).
Accordingly, even if the October 2020 CSE indicated that, at the time of the CSE meeting, it considered the student's September 2020 independent bilingual speech-language therapy evaluation report or the September 2020 independent neuropsychological evaluation report, given the information about the student's performance and progress at school, the lack of a recommendation for bilingual speech-language therapy did not render the October 2020 IEP inappropriate. Rather, as of October 2020, the consensus among district staff and the independent neuropsychologist was that the student was English dominant, preferred to use English, and although demonstrated some language delays, was a functional communicator at school (see Parent Exs. G at pp. 2-8; Q at pp. 8-9). Notably, the September 2020 independent bilingual speech-language evaluator did not report communicating with the student's school staff to determine her communication functioning at school (see Parent Ex. P). Although it is understandable that the parent wanted to improve the student's ability to communicate in Spanish as it was one of the languages used at home, given the evidence in the hearing record regarding the student's performance at school, the district was not required to recommend bilingual speech-language therapy in October 2020 in order to offer the student a FAPE.
Regarding academics, the parent asserts that the CSE took a different approach in recommending a nonpublic school placement in April 2021 after reviewing the results of the independent neuropsychological evaluation report. Initially, review of the October 2020 IEP and the subsequent April 2021 IEP provides a mixed assessment of how the independent bilingual neuropsychological evaluation report impacted the April 2021 CSE's recommendation. For example, the October 2020 IEP and April 2021 IEP included the same recommendations for placement of the student in a 12:1+1 special class (compare Parent Ex. G at pp. 21-22, with Parent Ex. F at p. 22). The April 2021 IEP changed the student's placement recommendation from a district non-specialized school to a nonpublic school (compare Parent Ex. G at pp. 26, 29, with Parent Ex. F at pp. 26-27, 29). According to information in the April 2021 IEP, members of the April 2021 CSE expressed that a 12:1+1 special class in a specialized school was meeting the student's needs (Parent Ex. F at p. 29). However, the CSE, after considering all of the information including the independent evaluations, determined that the district's then current program was not meeting the student's needs and recommended a nonpublic school for the student "which w[ould] provide a greater degree of one-to-one instruction" (id.).
To the extent that the change in recommendation from a public school setting to a nonpublic school setting may have signaled that the student required a more supportive environment, the hearing record does not include sufficient information to formulate any compensatory award on this basis. As noted in Application of a Student with a Disability, Appeal No. 24-429, the student was receiving instruction remotely and, therefore, was not attending school in person during the 2020-21 school year through the date of the April 2021 CSE meeting (Parent Ex. F at p. 4). As there was no objection to the student receiving remote instruction, nor any objection to the classroom ratio, it is difficult to envision, based on the hearing record before me, how the student's instruction would have been different attending a 12:1+1 special class remotely at a nonpublic school as opposed to a public school.
On January 22, 2026, the undersigned invited the parties to "notify the Office of State Review of their respective positions as to whether there is an adequate record to address the remanded issue [of academic and speech-language therapy services]" (Jan. 22, 2026 Corr. at pp. 1-2). This gave the parties the opportunity to inform the Office of State Review of the student's current level of functioning. Although both parties responded and informed the Office of State Review of their positions regarding the legal arguments on remand, neither party reported on the student's current academic status. Additionally, the hearing record shows that the student was making academic progress and had an English language preference academically and socially.
Here, the most recent documentation included in the hearing record regarding the student's levels of functioning is from 2022 (see Parent Ex. D). It is likely that student's abilities and needs have changed between the 2022-23 school year and the 2025-26 school year, but without the student's current level of functioning, there is no objective way to parse the extent to which any alleged loss in skills were the result of district's failure to timely transmit the February 2020 IHO decision ordering an IEE such that the October 2020 CSE's recommendation for a 12:1+1 special class in a public school may have been insufficiently supportive for the student. The purpose of compensatory education is not to maximize the student's potential (see Application of a Student with a Disability, Appeal No. 16-033; cf. Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Instead, an award of compensatory education should place the student in the position that he would have been in had the district acted properly (see Parents of Student W., 31 F.3d at 1497 [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA" and finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]).
Under the circumstances of this case, even if the delay in issuing the February 2020 IHO decision had resulted in the October 2020 CSE recommending an insufficiently supportive program, there is insufficient basis for awarding additional compensatory educational services as the hearing record indicates the student was making progress. Looking at the information before the October 2020 CSE, the IHO credited the testimony of the district's assistant principal who stated that "the school utilized an assessment called SANDI used to track student progress and specific needs and skills in a variety of areas, in reading, math and is aligned to Common Core" and that "[a]ssessments [we]re conducted in the classroom by teachers and related service providers to assess skills and needs and inform IEP" (IHO Decision at p. 13). The IHO held that "[a]ccording to [the assistant principal], the staff believed that the [s]tudent was making progress" and that the student "was participating more, reading better, and she was the best performing (academically) in her class" (id. at pp. 13-14). The IHO held that "the [p]arent's cross-examination of [the assistant principal] made almost no effort to contradict any of these claims" and that "[a]s a result, the record, as it stands, reflects that the [s]tudent made meaningful academic progress during the years applicable" (id. at 14).
VII. Conclusion
For the reasons described above, the evidence in the hearing record supports a finding that the district's failure to timely transmit the February 2020 IHO decision to the parties did not prevent the parent from having the independent bilingual speech-language therapy evaluation and the independent bilingual neuropsychological evaluation completed prior to the October 2020 CSE meeting and that even if there were such a failure, the information in those evaluations did not require a change in recommendations for the student's speech-language therapy services or the 12:1+1 special class, and, even if the program were determined to be insufficiently supportive, the hearing record does not support an award of compensatory education given the evidence of the student's progress and the lack of information as to the student's current levels of functioning, which both parties declined to present evidence of after remand.
Footnotes
[1] The student's eligibility for special education and related services as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[2] The April 2018 CSE meeting was attended by the student's mother and father and according to the April 2018 IEP, the CSE recommended that all of the student's instruction and related services be delivered in English (see Parent Ex. I at pp. 6-7, 10, 13). Subsequent to the development of the April 2018 IEP, the student's mother, in June 2018, completed a Home Language Identification Survey identifying English as the student's dominant language (see Dist. Ex. 1 at p. 5).
[3] The parent asserted in her affidavit that after the independent neuropsychological report was issued on September 28, 2020, the independent neuropsychologist "agreed to look at some updates and reissued her report to [the parent] in November 2020 (still dated September 18, 2020)" (Parent Ex. X ¶ 9).
[4] The hearing record does not contain any prior written notices from the district to the parent regarding either the October 1, 2020 or October 8, 2020 CSE meetings.
[5] The district asserts that the initial October 2020 CSE meeting was scheduled to be held on October 1, 2020 (Parent Ex. G at p. 5). The parent asserts in her due process complaint notice that "the [district] contacted the [p]arent on the day of an IEP meeting (i.e., October 2, 2020) stating that it had issued a meeting notice that the [p]arent did not receive. In response, the [p]arent informed the [district] that she had not received notice of the meeting and that such an IEP meeting would need to be rescheduled" (Parent Ex. A at p. 5).
[6] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[7] The parent testified that the evaluator who conducted the independent bilingual neuropsychological evaluation "agreed to look at some updates and reissued her report . . . in November 2020 (still dated September 18, 2020)" (Parent Ex. X ¶9). The hearing record does not identify any specific differences between the initial report issued on September 18, 2020 and the report reissued in November 2020 and the hearing record only includes one copy of the report (Parent Ex. Q).
[8] Independent OT and PT evaluations of the student were conducted by the same agency on the same day, February 19, 2021 (Parent Exs. L; M); however, the February 2020 IHO decision did not include an independent OT evaluation as part of the awarded relief (Parent Ex. C at ppl 5-6). As PT was previously discussed in Application of a Student with a Disability, Appeal No. 24-429 and neither PT nor OT services are being requested here now, neither of these services will be further discussed as part of this limited remand determination.
[9] According to the parent, the June 2021 FBA was reviewed by the June 23, 2021 CSE and the CSE declined to make any adjustments to the IEP regarding the student's behaviors (see Parent Exs. E; J). As there is no assertion that there was any need to change the student's programming as a result of the June 2021 FBA, it will not be further discussed as part of this limited remand determination.
[10] As determined in the April 20, 2023 SRO decision, the "parent knew on or around October 1, 2020 that the CSE would be reconvening on October 8, 2020 to allow the parent the opportunity to participate in the decision-making process" and "the October 2020 IEP noted that the parent opted not to participate in the meeting per the advice of her attorney" (Application of a Student with a Disability, Appeal No. 23-024; Parent Ex. G at p. 5; 29).
[11] There was ample evidence presented by both parties at the impartial hearing that the student's dominant language was and still is English and that the student required speech-language therapy in English (see generally, Tr. pp. 87-89, 91-91, 118-20, 194, 206-07, 215, 239-43, 277, 285, 292; Parent Exs. J at p. 2; Q at pp. 4, 7, 14-15; R at p. 4; T at pp. 3, 5-8; W at p. 3, 5; Dist. Exs. 6 at p. 1; 7 at p. 1; 8 at p. 3).
[12] The independent bilingual speech-language therapy evaluation report reflects that scores were not reported for either of the formalized assessments because the testing measures "were developed in reference to a monolingual population" (Parent Ex. P at p. 2). The evaluation report includes a quotation referencing IDEA requirements; however, the quoted language does not appear in the current IDEA or federal regulations (id.).
[13] The independent evaluator also recommended a "bank of 276 speech and language therapy hours (3 hours a week for 46 weeks for 2 years)" as "compensation for the lack of services in the past, and t[ook] into consideration the hours required to help [the student] progress to where she would have been if appropriate services were provided" (Parent Ex. P at p. 9). The independent evaluator did not specify that the recommended compensatory speech-language therapy be delivered monolingually or bilingually (see id.).
[14] The psychologist who conducted the neuropsychological evaluation reported that the "[student] spoke in English exclusively, although she was able to respond to questions in Spanish. She sp[oke] English and Spanish with [her] mother, and Spanish exclusively with her father. [Student] and her sister sp[oke] English to each other" (Parent Ex. Q at p. 13).