I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO), which denied her request that respondent (the district) reimburse her for Orton-Gillingham tutoring services provided during the 2022-23 school year and the costs of her son's tuition at the Norman Howard School (Norman Howard) for the 2023-24 school year.  The appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail.  Briefly, the parent obtained an evaluation by a private educational specialist, which was conducted in August and September 2022 and the results were set forth in a report dated September 8, 2022 (Parent Ex. BB).[1]  In addition, the district conducted an observation and psychoeducational evaluation of the student in October 2022 (Parent Exs. Z; AA).[2]

A CSE convened on November 22, 2022 to conduct the student's initial review and determined that the student was eligible for special education services as a student with a learning disability (Parent Ex. D at p. 1).[3]^, [4]  The November 2022 CSE recommended that the student receive "[d]irect and [i]ndirect" consultant teacher services for one 120-minute period per week in English Language Arts (ELA), indirect consultant teacher services for one 60-minute period per week each for science and social studies, and small group counseling two 30-minute sessions per month (id. at p. 9).  The CSE also recommended supplementary aids and modifications/accommodations, including multisensory reading instruction twice per three day cycle, copies of class notes, access to speech to text software, preferential seating, use of a graphic organizer, on task prompting, "break tasks into smaller sections," use of shortened pencils, access to spacing paper, no penalization for spelling errors, verbal praise, checklists and visual reminders, study skills support, additional time to complete assignments, and organizational skills support (id. at p. 8-9).[5]  On December 5, 2022, the district sent the parent a prior written notice summarizing the CSE's recommendations (Parent Ex. H).

Subsequent to the November 22, 2022 CSE meeting, a CSE convened again on April 27, 2023 to conduct an annual review (Parent Ex. C).  The CSE recommended the student continue to receive the same special education and related services as in his November 2022 IEP (compare Parent Ex. D at p. 9, with Parent Ex. C at p. 8).  By letter dated June 15, 2023 the parent requested the CSE reconvene as the student had been accepted to Norman Howard and the parent wanted the CSE to consider placing the student in a more restrictive program (Parent Ex. G; Dist. Ex. 20).  In response to the parent's request, the CSE convened on August 14, 2023 to review the student’s special education program (Parent Ex. B at p. 1; UU at p. 4-5).  Among other things, the CSE reviewed a July 2023 private response to intervention evaluation, a 2022-23 IEP progress report, and additional input from the student's tutor and teacher (see Parent Exs. B at p. 2; UU).  The CSE determined that the student remained eligible for special education as a student with a learning disability and recommended "[d]irect and [i]ndirect" consultant teacher services for ELA (one 120-minute session), science (one 60-minute session), and social studies (one 60-minute session), as well two 58-minute sessions of resource room per six day cycle "[t]o provide supplemental multisensory reading instruction with a focus on spelling, as well as decoding," two 30-minute sessions of counseling per month, and supplementary aids and accommodations/modifications (Parent Ex. B at pp. 8-11).  At the August 14, 2023 CSE meeting, the parent notified the district that she disagreed with the committee's recommendation and would be unilaterally placing the student at Norman Howard and seeking tuition reimbursement and transportation from the district (Parent Ex. UU at p. 101).  The district summarized the CSE's findings in a prior written notice sent to the parent on August 28, 2023 (Parent Ex. F).

A. Due Process Complaint Notice

The parent, through her attorney, filed a due process complaint notice, dated October 24, 2023, in which she asserted that the district failed to offer the student a free appropriate public education (FAPE) for the 2022-23 and 2023-24 school years (Parent Ex. A).  For the 2022-23 school year, the parent alleged that the district declined to adopt the recommendations of the private educational specialist, including for daily specialized reading services, daily resource room services, occupational therapy (OT), and consultant teacher services in all academic areas and that, as a result, the student failed to make "meaningful progress in his need areas, especially reading" and suffered a severe social and emotional toll due to the "inappropriate placement" (id. at p. 4).  The parent also argued that the annual goals contained in the November 2022 IEP were deficient and that as a result of the foregoing the student was denied a FAPE for the 2022-23 school year (id.).

For the 2023-24 school year, the parent asserted that the CSE's recommended program diverted from the recommendations of the private educational specialist and was not "reasonably calculated to yield educational progress" (Parent Ex. A at p. 3).  The parent asserted that, although the student was in seventh grade and reading around a third-grade level, the CSE continued to recommend the student's prior program of two days of specialized reading instruction every three days (id.).  Moreover, the parent argued that the district erred in recommending "direct and indirect" consultant teacher services and OT consultation without stating the anticipated frequency and duration of the direct versus indirect services in contravention of State regulations and failed to recommend consultant teacher services for math (id. at pp. 3-4).  The parent also argued that the August 2023 IEP was deficient in that it did not employ daily resource room services as recommended by the private educational specialist (id. at p. 3).  Finally, the parent argued that the annual goals were "patently inappropriate" (id. at p. 4).

The parent's requested relief included a finding of denial of FAPE for both the 2022-23 and 2023-24 school years, reimbursement for Orton-Gillingham tutoring delivered to the student during the 2022-23 school year, additional compensatory academic tutoring services for the 2022-23 school year, and tuition reimbursement for of direct funding of the unilateral placement of the student at Norman Howard for the 2023-24 school year (Parent Ex. A at pp. 4-5).

B. Impartial Hearing Officer Decision

Following two prehearing conferences (see Nov. 1, 2023 Tr. pp. 1-23; Nov. 27, 2023 Tr. pp. 1-10),[6] an impartial hearing convened on January 22, 2024, and concluded on March 19, 2024 after four days of hearings (see Tr. pp. 1-594).[7]  In a decision dated July 8, 2024, the IHO found that the district met its burden to prove that it offered the student a FAPE for the 2022-23 and 2023-24 school years and denied the parent's request for relief (IHO Decision at pp. 12, 16).  Initially, the IHO summarized the parties' respective positions regarding each school year (id. at pp. 3-5).

With respect to the 2022-23 school year, the IHO found that the parent's primary argument was that the CSE did not incorporate the recommendations of the private educational specialist during the November 2022 initial eligibility determination meeting (IHO Decision pp. 6-7).  The IHO found that the recommendations of the private educational specialist were "in large part" incorporated in the November 2022 IEP, but that the district was not required to incorporate all of the private educational specialist's recommendations (id. at pp. 7, 11, 16-17).  The IHO determined that the CSE recommended an IEP that was reasonably calculated to enable the child to make progress (id. at p. 12).

The IHO also found the district offered the student a FAPE for the 2023-24 school year, noting specifically that the August 2023 CSE made changes based on the parent's requests and increased services for the student for the 2023-24 school year (IHO Decision pp. 16-17).  Moreover, the IHO again held that the district was not required to incorporate all services proposed by the private educational specialist (id.).  With respect to the student's progress leading up to the August 2023 CSE (i.e., during the 2022-23 school year), the IHO held that, while the evidence established that the student made progress in some areas while not in others, the lack of progress was not a per se indication that a FAPE was denied (id. at p. 17).  The IHO found that the August 2023 IEP "was reasonably calculated to provide an educational benefit to the student" (id.).  Based on the findings above, the IHO denied the parent's request for compensatory education for the 2022-23 school year and reimbursement or direct funding for the unilateral placement at the Norman Howard school for the 2023-24 school year (id. at pp. 17-18).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding the district offered the student a FAPE for both the 2022-23 and 2023-24 school years.  The parent argues generally that the IHO's findings were inconsistent with the evidence in the hearing record and that he ignored testimony, evidence, and the district's violation of regulations.  The parent argues that the IHO mishandled the record and "incorrectly exclude[ed] evidence in his decision that had been duly admitted into evidence."[8]  The parent argues that the annual goals for both school years were inappropriate and did not address spelling or orthographic processing and that the inappropriate goals deprived her of meaningful participation in the decision-making process.  The parent also argues that the IEPs did not provide for assistive technology services for either school year.  In addition, the parent argues that the IHO failed to address the CSEs' lack of specific recommendations for duration and frequency of consultant teacher services as the IEPs did not specify the amount of direct or indirect consultant teacher services recommended for either the 2022-23 and 2023-24 school year and that the CSEs recommended ineffective reading programs inconsistent with the recommendations of the parent's educational specialist.

In an answer, the district responds to the parent's allegations and requests that the IHO's decision be upheld in its entirety.

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.  After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).  "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404).  The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).  Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[9]

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

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

VI. Discussion

A. 2022-23 School Year (November 2022 IEP)

Prior to addressing the merits of the parent's allegations raised on appeal, a review of the student's needs is necessary.

The November 2022 IEP shows that the student's present levels of performance were taken in part from a September 2022 educational evaluation, an October 2022 physical therapy (PT) evaluation, a November 2022 psychoeducational evaluation, and a November 2022 OT evaluation, as well as from input provided by the student's then current teachers and the parent (compare Parent Ex. D at pp. 1-7, with Parent Exs. Y; Z; BB).  The November 2022 CSE met for the student's initial eligibility determination meeting and found the student eligible for special education and related services as a student with a learning disability (Parent Exs. D at p. 1; H at p. 1).[10]  For the 2022-23 school year the student was in sixth grade and for the year prior to the development of the November 2022 IEP, the student had been receiving accommodations and related services under a 504 plan (Parent Exs. D at p. 1; Z at p. 4; see Parent Ex. E).  The November 2022 IEP noted that, according to the student's then-current teacher, he was demonstrating on grade level reading skills, proficient scores on comprehension tests and quizzes, and his participation in reading discussion was accurate and thorough (Parent Ex. D at p. 4).  Additionally, the student had participated in the John's Basic Reading Inventory which indicated that his independent level for reading comprehension was through eighth grade and his instructional level for reading fluency was at the sixth grade level (id. at p. 4).[11]  The results of the spring 2022 administration of the Northwest Educational Association (NWEA) MAP Reading assessment were included in the November 2022 IEP present levels of performance which placed the student at the 60th percentile (Tr. p. 44; Parent Ex. D at p. 4).  The November 2022 IEP indicated that the student's "difficulty with decoding and encoding impact[ed] [h]is ability to access instruction throughout the school day" (Parent Ex. D at p. 7).

The November 2022 IEP indicated that the student was accelerated for sixth grade math (Parent Ex. D at p. 5).  In writing, the IEP indicated that, according to the student's then-current teacher, the student was able to create relevant ideas for writing assignments, organize his thoughts in a graphic organizer appropriately, and utilize tools such as speech to text and typing (id.).  With regard to social development, the November 2022 IEP reported information from the student's teachers that he was confident in the classroom, participated regularly to share his knowledge, worked as an active contributor in groups, and "seem[ed] to have made a good adjustment to middle school for 6th grade" (id.).  The IEP noted that the student generally had positive relationships with peers and adults and that he wanted to do well in school but could become anxious about keeping up with homework, changes in routines or getting to class on time (id. at p. 6).  At times, the student made negative comments about his self-worth (id.).

The November 2022 IEP present levels of performance related to physical development reflected the results of a recent OT assessment that indicated the student demonstrated above average skills in fine motor precision, average skills in fine motor integration, and appropriate in-hand manipulation skills (Parent Ex. D at p. 6).  The IEP stated that the student's handwriting/printing speed fell below grade level; however, it was noted to be within the average range for fifth grade (id.).  The IEP noted that the "appearance of [the student's] printing decline[d] when he [wa]s not focused on being neat or when he fe[lt] rushed" (id.).

In addition to the information included in the November 2022 IEP present levels of performance, the November 2022 psychoeducational evaluation report described the student as demonstrating strong oral language and cognitive abilities but struggling with processing speed, spelling, and social/emotional challenges (see generally Parent Ex. Z).  Specifically, an administration of the Wechsler Intelligence Scale for Children – Fifth Edition (WISC-V) indicated the student attained a Full-Scale IQ of 118, placing him within the high average range of intellectual functioning (88th percentile) (id. at pp. 11-13).  The student's performance on the visual spatial and fluid reasoning indices yielded scores within the very high range; verbal comprehension and working memory fell within the high average range; and processing speed fell within the low average to borderline average range (id.).  The school psychologist who evaluated the student opined that weaknesses noted in the student's processing speed could be attributed to the lack of fine motor accommodations provided for in this assessment (id. at p. 13).

An administration of the Wechsler Individual Achievement Test – Fourth Edition (WIAT-4) as part of the November 2022 psychoeducational evaluation placed the student's oral language skills within the extremely high range; however, the evaluation report noted that he had significant challenges in spelling and orthographic processing, where his scores fell within the low average to very low range (Parent Ex. Z at pp. 14-16).  According to the psychoeducational evaluation report, the student's reading skills were considered generally average, with specific strengths in oral language and weaknesses in orthographic processing (id.).  The school psychologist indicated that the student scored in the low average range on the dyslexia index which indicated mild weakness in that area (id. at p. 20).  In addition, the student's written expression fell within the low average range and the school psychologist noted that the student exhibited significant challenges with spelling (id. at pp. 14, 20).  In mathematics, the student performed in the average to high average range (id. at pp. 14, 16).  The school psychologist opined that the student's cognitive test performance and performance on written tasks were impacted by timing constraints, which affected his scores (id. at p. 10).

With regard to social/emotional skills, the November 2022 psychoeducational evaluation report indicated that an administration of the Behavior Assessment System for Children – Third Edition (BASC-3) Parent Rating Scales indicated the student exhibited clinically significant levels of depression and somatization, and at-risk levels in anxiety, withdrawal, adaptability, leadership, and activities of daily living (Parent Ex. Z at p. 17).  The student's then-current teachers completed the BASC-3 Teacher Rating Scales, which yielded scores in the clinically significant range with regard to withdrawal, and based on the at-risk range with regard to attention problems, adaptability, social skills, leadership, and functional communication (id. at pp. 18-19).  The school psychologist reported that the student's then current teachers did not have any academic concerns, but they felt that the student needed to improve his organizational skills (id. at p. 19).

An educational evaluation obtained by the parent around this same time suggested that the student's needs were more intensive than the district reported.  A private educational evaluation was completed in September 2022, the results of which indicated the student's academic skills varied from the very low to the average range with significant discrepancies between his performance on tasks presented (Parent Ex. BB at p. 13).  The educational specialist who completed the evaluation reported that an administration of the Woodcock Johnson IV Tests of Achievement (WJ-IV) showed that the student performed in the average range on the passage comprehension subtest; in the low average range on the word attack and sentence reading fluency subtests and the reading cluster, broad reading cluster, and basic reading skills cluster scores; and in the borderline range on the letter-word identification and word recognition fluency subtests (id. at pp. 12-15).  In spelling, the student performed in the very low range and in writing, he performed in the borderline range on the editing subtest (id. at p. 16).  The educational specialist reported that the student performed in the average range in all areas assessed for mathematics (id. at pp. 15-16).

The educational specialist opined that, even though the student's scores fell within the low average range (standard scores 80-89), word attack, decoding fluency, and sentence-reading fluency were all significant areas of weakness for the student (Parent Ex. BB at pp. 14-15).  The education specialist further indicated that, while the student's reading cluster, broad reading cluster, and basic reading cluster scores all fell within the low average range, each of these were also a "significant area of weakness" for the student (id. at p. 15).  The education specialist reported that the academic skills cluster from the WJ-IV, which is an aggregate score from the letter word identification, spelling, and calculation subtests, fell within the borderline range, and noted that this also was a "significant area of weakness" for the student (id. at p. 17).  Additionally, he reported that the academic fluency range (sentence reading fluency, math fact fluency, and sentence writing fluency) fell within the low average range and opined that this was also a "significant area of weakness" for the student (id.).

The results of an administration of the Kaufman Test of Educational Achievement, Third Edition (KTEA-3) by the educational specialist indicated that the student performed in the average range on the phonological awareness and the associational fluency subtests; in the low average range on the decoding fluency subtest; in the borderline range on the word recognition fluency subtest; and in the below average range on the object naming fluency subtest (Parent Ex. BB at pp. 12-14).[12]

An administration of the Kaufman Brief Intelligence Test, Second Edition (K-BIT-II), completed during the September 2022 educational evaluation, indicated that the student's cognitive skills fell within the above average range (Parent Ex. BB at p. 17).

The educational specialist opined that "on this testing [the student] showed the signs, markers, and characteristics of a child who me[t] the educational criteria for the classification of a child with a learning disability, specifically a reading disorder, and a disorder of written expression" (Parent Ex. BB at p. 20).  He further stated that the student presented with a "double deficit with weaknesses in phonological processing and specific rapid object naming skills and abilities" (id.).

The educational specialist interpreted scores that fell within the low average to average range as "significant area[s] of weakness" (see generally Parent Ex. BB).  The educational specialist testified that he considered scores that fell within the bottom fourth (below the 25th percentile) to be areas of significant weakness and in need of intensive remediation (Tr. pp. 512-521).  The school psychologist who completed the November 2022 review of the non-district evaluation explained that there were multiple sections where the educational specialist indicated a low average or average score as a significant area of weakness or deficit; however, he explained that "for it to be a significant area of weakness or a deficit it would have to be pretty far below a standard deviation at least.  At least one standard deviation below the average" (Tr. p. 160).  The school psychologist further testified that grade equivalents referenced by the educational specialist were not based on standardization rather "[we]re based on raw scores which is not good for interpreting and making decisions," noting "we don't report out on grade equivalencies or raw scores" (Tr. pp. 163, 170-71).  Moreover, he noted that many of the scores reported in the September 2022 educational evaluation were within the average to low average range; however, he did agree that many of the standard scores that fell within the 80s were below average (Tr. pp. 160, 163).[13]

In a November 2022 review of the September 2022 educational evaluation completed by the educational specialist, the school psychologist noted that the educational specialist reported several areas of significant weakness and the presence of a learning disability but that informal data from the student's classroom teachers and student grades indicated "a higher level of functioning than reflected through the interpretation of the test data" (Dist. Ex. 9 at p. 1).  He noted that the September 2022 educational evaluation used teacher forms completed by the student's fourth grade teacher who reported the student was performing at the fifth grade level in reading, math, and writing, which did not corroborate test data (id.).  The school psychologist opined that information should have been collected from the student's fifth grade teacher in order to provide a "more recent perspective on [the student's] academic and behavior functioning" (id.).  Moreover, he opined that "the interpretation of those scores present[ed] a different picture of [the student's] performance and areas of need (id.).

To address the student's identified needs, the November 2022 CSE recommended the student receive two hours of direct and indirect consultant teacher services weekly in ELA, one hour of indirect consultant teacher services weekly in science, one hour weekly of indirect consultant teacher services in social studies, and two small group sessions of counseling monthly for 30 minutes (Parent Ex. D at p. 9).  Additionally, the November 2022 CSE recommended the following supplementary aids and services, program modifications and accommodations:  copy of class notes; access to speech to text software; preferential seating; use of a graphic organizer; on task prompting; breaking tasks into smaller segments; use of a shortened pencil; access to spacing paper when the student elected to write and graph paper for mathematics; no penalization for spelling on written assignments; verbal praise provided for the process the student devotes to his work as opposed to the quality, and targeted praise for when the student copes well with making a mistake and managing frustration; checklists and visual reminders for visual layout and spacing of words; study skills support two times in a three day cycle for 27 minutes; multisensory reading instruction two times in a three day cycle for 58 minutes; additional time to complete assignments; and support for organizational skills (id. at pp. 9-10).  The CSE further recommended an IEP case manager to collaborate with staff as needed throughout the school year (id. at p. 10).

Although the parent had originally challenged the degree to which the November 2022 CSE included recommendations in the IEP from the educational specialist's report daily resource room services, OT, and consultant teacher services in all academic areas (see Parent Ex. A at p. 4), the parent has not pursued these issues on appeal.  On appeal, the main issues pertaining to the 2022-23 school year are the parent's objections to the annual goals and reading instruction included in the November 2022 IEP, as well as assistive technology and direct versus indirect consultant teacher services, which are discussed further below.

1. Annual Goals

With regard to the parent's assertion that the annual goals contained within the November 2022 IEP were inappropriate, it is well settled that an IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 CFR 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]).  Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 CFR 300.320[a][3]) .

Here, to address the student's identified needs, the November 2022 CSE developed three annual goals designed to improve the student's ability to: read grade level multisyllabic words from subject area classes, demonstrate the use of technology tools to produce a writing piece that contains four or fewer errors in spelling and grammar, and to accurately identify his own emotions/feelings, the intensity of those emotions/feelings, and strategies for dealing with those emotions/feelings (Parent Ex. D at p. 8).  The annual goals included measurement criteria to determine if each goal was achieved, identified the method of how progress would be measured, and the schedule for when progress would be measured (id.).  In arguing that the annual goals were inappropriate, the parent indicated the reading and writing goals were vague and unmeasurable and that the IEP did not include a study skills goal or a goal to address the students spelling or orthographic processing.

While the CSE could have written more detailed goals, I decline to find that any flaw would alter the outcome of this case when assessed within the context of the overall supports and services recommended for the student in the November 2022 IEP.[14]  For example the IEP included supports to address the areas that the parent felt were unaddressed in the goals as study skills, spelling, and orthographic processing were addressed within the recommended management needs and accommodations with the provision of a copy of class notes, speech to text software, use of a graphic organizer, no penalization for spelling on written assignments, study skills support two times in a three day cycle, additional time to complete assignments, and support for organizational skills (see Parent Ex. D at pp. 7, 9-10).  Thus, in this instance, although the November 2022 IEP could have included more detailed annual goals, or annual goals in some of the areas noted by the parent, the substance of the annual goals does not render the IEP, as a whole, inappropriate for the student.

2. Reading Instruction

The parent argues that the reading program recommended in the November 2022 IEP was not appropriate to meet the student's needs.  State regulation defines "specially designed reading instruction" as "specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, in the area of reading . . . which is provided to a student with a disability who has significant reading difficulties that cannot be met through general reading programs" (8 NYCRR 200.6[b][6]).  Education Law § 4401(2), in turn, sets for the definitions of "[s]pecial services or programs," which includes, among other things, special classes, resource rooms, consultant teacher services, and related services.  Consistent with the reference to the various special services or programs included in the definition of special education under State Law, State guidance notes that specialized reading instruction could be recommended in an IEP as a special class, direct consultant teacher service, related service, or resource room program ("Questions and Answers on Individualized Education Program (IEP) Development, The State's Model IEP Form and Related Requirements," at p. 31, Office of Special Educ. Mem. [Updated Oct. 2023], available at https://www.nysed.gov/sites/default/files/programs/special-education/questions-answers-iep-development_0.pdf).  State guidance specific to students with disabilities resulting from dyslexia, dysgraphia, and dyscalculia emphasizes that "[t]he specially designed instruction that is appropriate to the unique needs of each student with a disability resulting from dyslexia, dysgraphia, and/or dyscalculia may vary across individual students with each of these specific learning disabilities" and that "[b]ecause of this, there is no single approach, product, or method of delivering specially designed instruction to such students that is required in federal or State law and regulations" ("Students with Disabilities Resulting from Dyslexia, Dysgraphia, and Dyscalculia: Questions and Answers, at p. 6, Office of Special Educ. [Aug. 2018], available at https://www.nysed.gov/sites/default/files/programs/special-education/q-and-a-students-with-dyslexia-dysgrahia-dyscalculia.pdf; see generally Educ. Law § 305[56]; Dear Colleague Letter, 66 IDELR 188 [OSERS 2015]).

Here, the September 2022 private evaluation by the educational specialist included a recommendation for "[d]aily specialized reading support with a multisensory reading program, such as the Wilson Reading Center or the Orton Gillingham Reading program" (Parent Ex. BB at pp. 20-21).  The educational specialist testified that he recommended daily specialized reading instruction because, due to "the severity of [the student's] dyslexia, his learning disability [wa]s going to impact him across every academic area" (Tr. p. 536).

The November 2022 IEP included multisensory reading instruction "2 x 3 day cycle" for 58 minutes as a supplementary service (Parent Ex. D at p 10).  The director of the CSE testified that for the 2022-23 school year, the student was originally attending a literacy class, which was a "tier one" class, but, as a result of the IEP, the student was switched to receive multisensory reading instruction, which could be a "tier two" class or "a component of the IEP" (Tr. p. 51).

On appeal, the parent's main dispute regarding the specialized reading program is not the frequency or duration but instead the parent contends that the IEP did not specify the number of students who would be instructed in the class and that the reading class did not address the student's spelling and orthographic processing needs.

Review of the IEP indicates that the multisensory reading instruction was recommended as a supplementary service and that the IEP did not identify the size of the class (Parent Ex. D at p. 10).  In this instance, it appears that the student was receiving the multisensory reading instruction as a part of the district's Response to Intervention (RtI) process, a general education support (Tr. pp. 213, 246).  While the reading teacher testified that there were seven students in her class and she never had more than seven students, she also testified that she did not think the parent would know how many other students would have been in the class (Tr. pp. 247-48).

RtI services are defined in State regulation as a multi-level educational approach to targeted academic intervention—adjusted and modified as the student's needs require—to provide systematic and appropriately intensive assistance to students who are not making academic progress at expected rates (8 NYCRR 100.2[ii][1]; see Response to Intervention—Guidance for New York State School Districts, Office of Special Educ. [Oct. 2010], available at http://www.p12.nysed.gov/specialed/RTI/guidance-oct10.pdf).  The United States Department of Education has explained that RtI services are neither required nor prohibited by IDEA after a student has been found eligible for special education (Letter to Zirkel, 73 IDELR 241 [OSEP 2019] [noting that while there is nothing in IDEA that prohibits children with disabilities who are receiving special education and related services under IDEA from receiving instruction using RtI strategies, all special education and related services must continue to be provided consistent with each child's IEP]).

To be clear, certain additional instructional or supportive services may be available to special education students and non-disabled students alike (e.g., RtI, AIS, or "building level services"), and according to the State Education Department, such general services should not be listed on a student's IEP (see "Academic Intervention Services: Questions and Answers," at pp. 5, 20, Office of P-12 Mem. [Jan. 2000], available at http://www.p12.nysed.gov/docs/AISQAweb.pdf).  But if a component of the AIS is provided to a student with a disability and that aspect of the service meets the definition of "specially designed instruction" under IDEA, the United States Department of Education's Office of Special Education Programs has clarified that services that clearly fall into the realm of special education are required to be listed on an IEP, stating in particular that "[t]he IEP Team is responsible for determining what special education and related services are needed to address the unique needs of the individual child with a disability.  The fact that some of those services may also be considered 'best teaching practices' or 'part of the district's regular education program' does not preclude those services from meeting the definition of 'special education' or 'related services' and being included in the child's IEP" (Letter to Chambers, 59 IDELR 170 [OSEP 2012];  see Bd. of Educ. of Uniondale Union Free Sch. Dist. v. J.P., 2019 WL 4315975, at *12 (E.D.N.Y. Aug. 23, 2019), adopted at, 2019 WL 4933576 [E.D.N.Y. Oct. 7, 2019]; Urbandale Community Sch. Dist., 70 IDELR 243 [SEA Iowa 2017] [noting that "[i]nstruction becomes special education when it is designed or selected to meet the disability-related needs of an individual student and is necessary for that student to maintain or improve educational performance"]).  However, as noted above, State guidance provides some leeway in making recommendations for specialized reading instruction, noting that specialized reading instruction to be provided outside of the general education class  could be recommended in an IEP as a special class, direct consultant teacher service, related service, or resource room program ("Questions and Answers on Individualized Education Program (IEP) Development, The State's Model IEP Form and Related Requirements," at p. 31, Office of Special Educ. Mem. [Updated Oct. 2023], available at https://www.nysed.gov/sites/default/files/programs/special-education/questions-answers-iep-development_0.pdf).  Accordingly, while it would have been better practice for the November 2022 CSE to have more clearly identified the recommended specialized reading instruction rather than listing it as a supplementary service, in this instance, the lack of a specific class size does not rise to the level of a denial of a FAPE to the student.

Further, regarding the degree to which the reading class addressed the student's spelling, the reading teacher testified that, while the primary focus of the multisensory reading instruction was decoding, the class addressed "spelling skills" as well (Tr. pp. 251-52).  Moreover, as noted above in the discussion of annual goals, the IEP recommended other supports to address the student's spelling and orthographic processing skills such as speech to text software, no penalization for spelling on written assignments, and additional time to complete assignments (see Parent Ex. D at pp. 7, 9-10).

Finally, although the parent cites testimony of the student's general education teacher and reading teacher that the class may not have been appropriate for student's needs (see Tr. p. 246, 248; Parent Ex. UU at pp. 11-12), these viewpoints, formed after the student began receiving the reading instruction recommended in the November 2022 IEP, may not be relied upon to assess the appropriateness of the November 2022 IEP (C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, at *13 [S.D.N.Y. Dec. 23, 2013] [stating that in addition to districts not being permitted to rehabilitate a defective IEP through retrospective testimony, "[t]he converse is also true; a substantively appropriate IEP may not be rendered inadequate through testimony and exhibits that were not before the CSE about subsequent events and evaluations that seek to alter the information available to the CSE"]).

Based on the foregoing, there is insufficient basis in the hearing record for a finding that the reading instruction recommended in the November 2022 IEP was not designed to enable the student to receive educational benefit.

B. 2023-24 School Year IEP (August 2023 IEP)

Next, the parent argues that the IHO erred in finding that the August 2023 IEP offered the student a FAPE and that the recommended reading instruction was ineffective.  A review of the hearing record supports the IHO's determination that the August 2023 IEP was appropriate and that the recommended reading instruction was adequate to address the student's needs.

The August 2023 IEP indicated that the student scored in the 16th percentile on the NWEA reading assessment which fell within the low average range; however, it also noted that he only spent 30 minutes completing the assessment compared to previous administrations when he spent "nearly 3 times as much time" and attained scores that showed above average achievement (Parent Ex. B at p. 4).  Additionally, the IEP indicated that the student was demonstrating above average performance in reading comprehension and noted that he was comprehending the class novel with 100% accuracy (id.).  The August 2023 IEP reported based on standardized testing from October 2022, the student's overall reading ability was in the average range with reading comprehension described as a strength (id.).  However, the student's word recognition, phonic decoding, and orthographic fluency skills were in the low average range (id.).  The IEP reflected the results of an April 2023 administration of the John's Basic Reading Inventory which showed that the student was independent at an 8th grade level for reading comprehension and performed at an independent/instructional level for decoding at the 8th grade level (id. at pp. 4-5).  The IEP further reported that the student was making satisfactory progress on his reading goal to read multi-syllabic words from content area text (id. at p. 5).  Additionally, the IEP indicated that the student scored a 12 on the Scholastic phonics inventory which it noted was in the "developing decoder range" (id.).  Finally, the IEP stated that the student's NWEA spring score was 217, which demonstrated a 99 percent growth and in the 54th percentile for achievement and that his lexile readability measure was 915L-1065L which placed him "somewhere between grade 6-7" (id.).

The August 2023 IEP indicated that writing was a challenge for the student, specifically noting that he could generate ideas for writing responses, was "well supported with a teacher created graphic organizer," was able to produce writing quickly, and could open a Google doc and type any written responses; however, he often produced pieces that were illegible, could not read back what he wrote, and often submitted work with multiple errors in spelling and grammar (Parent Ex. B at p. 5).  The August 2023 IEP indicated that the student's homework completion was inconsistent for all classes and noted that the student would report the homework was completed but was not turned in because he left it at home or could not find it (id.).

The hearing record shows that, in addition to district testing, the August 2023 CSE also considered an RtI evaluation completed by the private educational specialist (Parent Exs. N; UU at pp. 35-40).  The educational specialist reported that the student's academic performance placed his skills in the borderline to average range and noted that he showed significant discrepancies between his performance on assessed tasks (Parent Ex. N at p. 5).  Specifically, he noted that the student showed significant weaknesses in his reading recognition, word recognition fluency, word attack, decoding fluency, sentence reading fluency, spelling, and editing skills and abilities (id.).  The educational specialist noted that the student "showed greater than expected positive change in his standard scores on both spelling and sentence writing fluency on this testing" (id. at p. 9).  The educational specialist reported to the August 2023 CSE that many of the scores were commensurate with previous testing in September 2022 (Parent Ex. UU at p. 36).  He further explained that two areas that "went up higher than we would expect" were spelling and sentence writing fluency, specifically discussing that the student's spelling scores went from a really low score to a borderline score, however, it was still noted as an area of weakness (id. at pp. 36-37).  The educational specialist recommended the student attend a classroom that provided additional special education support; daily resource room services; specialized reading support with a multi-sensory reading program; direct OT services; weekly school counseling services, and direct assistive technology services (Parent Ex. N at p. 10).[15]

 According to an April 2023 teacher summary, the student's multisensory reading intervention teacher (teacher) indicated that the student had strong decoding skills and was utilizing effective comprehension strategies (Parent Ex. S at p. 1).  She reported from an administration of the John's Basic Reading Inventory that the student scored at the independent level for both decoding and comprehension on a seventh grade level passage (id.). Specifically, she indicated that the student scored at a seventh grade informational text (nonfiction) in decoding and an eighth grade narrative text (fiction) in comprehension (id.).  The student scored at the instructional level on an eighth grade narrative text (fiction) in decoding and the independent level in comprehension (id.).  The teacher opined that, based on these data points, the student's decoding and comprehension abilities were consistent with those of typical eighth grade students (id.).  The teacher further opined that the student's needs were not decoding-based because he had a strong understanding of syllable types and utilized decoding strategies to read multisyllabic words independently (id.). Moreover, she recommended that, based on assessments, observations and discussions with the student, he would benefit from the Read 180 and a full block of RtI ELA skills lab that focused on phonics and encoding (spelling) skills (id.).

The student's 2023-24 IEP was initially developed at an annual review meeting on April 27, 2023 (Parent Ex. C at p. 1).  The April 2023 CSE recommended the student receive two hours weekly of direct and indirect consultant teacher services in English language arts, and one hour weekly of indirect consultant teacher services in science and social studies; and small group counseling for 30 minutes two times monthly (id. at p. 8).  Additionally, the April 2023 CSE recommended the following supplementary aids and services, program modifications, and accommodations: copy of class notes; access to speech to text software; preferential seating; use of a graphic organizer; on task prompting; tasks broken into smaller segments; use of a shortened pencil; access to spacing paper when is the student elected to write and graph paper for mathematics; no penalization for spelling on written assignments; verbal praise provided for the process the student devotes to his work as opposed to the quality, and target praise for when the student copes well with making a mistake and managing frustration; checklists and visual reminders for visual layout and spacing of words; study skills support two times in a three day cycle for 27 minutes; multisensory reading instruction two times in a three day cycle for 58 minutes; additional time to complete assignments; support for organizational skills and access to word prediction software (id. at pp. 8-10).  The CSE further recommended an IEP case manager to collaborate with staff as needed throughout the school year (id. at p. 10).  Additionally, the April 2023 IEP recommended that the student receive the following testing accommodations:  location with minimal distractions; on-task focusing prompts; and access to word processor with spell check (id. at pp. 10-11).  Finally, the April 2023 IEP indicated that the student's "difficulty with decoding and encoding impact[ed] [h]is ability to access instruction throughout the school day" (id. at p. 6).

Comparison of the April 2023 IEP with the August 2023 IEP shows that after considerable discussion, the August 2023 CSE made changes to the April 2023 IEP in order to address the parent's concerns and in consideration of the July 2023 RtI evaluation (see Parent Ex. UU; compare Parent Ex. C at pp. 4-8 with Parent Ex. B at pp. 4-11).  In particular, the CSE changed the service delivery of the consultant teacher services in science and social studies to include direct and indirect services; added resource room two days out of a three-day cycle to provide supplemental multisensory reading instruction with a focus on spelling and decoding to replace the multi-sensory reading instruction previously recommended as a supplementary service; added two individual counseling session for 30 minutes monthly; and added an OT consultation as needed to "supports for school personnel on behalf on the student" (Parent Ex. UU at pp. 102-03; compare Parent Ex. B at pp. 8-9 with Parent Ex. C at pp. 8-11).

1. Annual Goals

As noted, to address the student's identified needs, the April 2023 CSE developed three annual goals designed to improve the student's ability to: read grade level multi-syllabic words from grade level subject area classes, independently review and revise written work for spelling grammar and word choice; and to identify and appropriately use a coping skill when he expressed a negative emotion at school (Parent Ex. C at p. 7).  In addition, the August 2023 CSE developed two more annual goals for the student, the first targeting the student's ability to initiate a task and the second the student's ability to spell multisyllabic words (Parent Ex. B at p. 8).

The parent argues that the reading goal was "unrealistic" and that the reading and writing goals were vague.  Regarding the reading goal, leading up to the August 2023 CSE meeting, for the sixth grade, the student had achieved a goal to accurately read multi-syllabic words from grade level subject areas with a 70 percent success rate (Parent Ex. Q at p. 2); accordingly, there is no indication that the student could not achieve the same goal for the seventh grade with an 80 percent success rate (Parent Ex. B at p. 8).  Regarding vagueness, as with the November 2022 IEP, while the August 2023 IEP could have included more detailed goals, this does not support a finding that the August 2023 IEP denied the student a FAPE in light of the overall supports and services recommended for the student.  Regarding the parent's claim that the IEP again lacked goals to address spelling or orthographic processing, review of the August 2023 IEP shows that it included goals for the student to review written work for spelling and grammar and spell multisyllabic words (see Parent Ex. B at p. 8).  In addition, the August 2023 IEP included supports to address the student's spelling and orthographic processing skills, including the resource room services to focus on spelling and decoding, access to speech to text software and word prediction software, no penalization for spelling on written assignments, additional time to complete assignments, checklists and visual reminders for visual layout and spacing of words, and testing accommodation of access to a word processor with spell check (Parent Ex. B at pp. 6, 9-10).

2. Reading Instruction

The parent argues that the August 2023 IEP continued the prior school year's program of two sessions of reading instruction every three days despite that the student did not make progress during the 2022-23 school year.

It is well settled that a student's progress under a prior IEP is a relevant area of inquiry for purposes of determining whether an IEP has been appropriately developed, particularly if the parents express concern with respect to the student's rate of progress (see H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 Fed. App'x 64, 66-67 [2d Cir. 2013]; Adrianne D. v. Lakeland Cent. Sch. Dist., 686 F.Supp.2d 361, 368 [S.D.N.Y. 2010]; M.C. v. Rye Neck Union Free Sch. Dist., 2008 WL 4449338, *14-*16 [S.D.N.Y. Sept. 29, 2008]; see also "Guide to Quality Individualized Education Program (IEP) Development and Implementation," Office of Special Educ. Mem. [Revised Sept. 2023], available at https://www.nysed.gov/sites/default/files/programs/special-education/guide-to-quality-iep-development-and-implementation.pdf).  The fact that a student has not made progress under a particular IEP does not automatically render that IEP inappropriate, nor does the fact that an IEP offered in a subsequent school year which is the same or similar to a prior IEP render it inappropriate, provided it is based upon consideration of the student's current needs at the time the IEP is formulated (see Thompson R2–J Sch. Dist. v. Luke P., 540 F.3d 1143, 1153-54 [10th Cir.2008]; Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520, 530 [3d Cir. 1995]; S.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523, at *10 [S.D.N.Y. Dec. 8, 2011]; D. D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *12 [E.D.N.Y. Sept. 2, 2011], aff'd, 506 Fed. App'x 80 [2d Cir. 2012]; J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 650 [S.D.N.Y. 2011]).  Conversely, "if a student had failed to make any progress under an IEP in one year, courts have been "hard pressed" to understand how the subsequent year's IEP could be appropriate if it was simply a copy of the IEP which failed to produce any gains in a prior year (Carlisle Area Sch. Dist., 62 F.3d at 534 [noting, however, that the two IEPs at issue in the case were not identical]; N.G. v. E.L. Haynes Pub. Charter Sch., 2021 WL 3507557, at *9 [D.D.C. July 30, 2021]; James D. v. Bd. of Educ. of Aptakisic-Tripp Cmty. Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 827 [N.D. Ill. 2009]).

Contrary to the parent's contention, review of the hearing record shows that the student had achieved appropriate grades over the course of the previous school year and had made progress in his annual goals.  Specifically, the student's report card for the 2022-23 school year showed that the student attained passing grades in all subject areas, and that none of his final averages in core academic subjects fell below 86 (Parent Ex. U).  Additionally, the June 2022-23 progress report indicated that the student had achieved the goal to accurately read multi-syllabic words from grade level subject areas and was progressing satisfactorily but had not yet achieved his goal to demonstrate the use of technology to produce a writing piece that contains four or fewer errors in spelling and grammar (Parent Ex. Q at pp. 1-2).  The August 2023 CSE discussed the progress the student made towards these goals and made changes in order to better address the student's needs and to continue to support the student's progress (Parent Ex. UU at pp. 64-85).

In arguing that the student did not make progress, the parent focuses on the student's NWEA MAP benchmark scores (see Dist. Ex. 16); however, these scores were also discussed at the August 2023 CSE meeting and the district literacy teacher explained that the student's NWEA score from the end of the 2021-22 school year (fifth grade) was at the level expected for students leaving the sixth grade, he missed the administration of the NWEA at the beginning of the 2022-2023 school year, and his score for the winter assessment in the middle of sixth grade was "tagged for rapid guessing, so that score didn't really count for anything" (Parent Ex. UU at pp. 10-11).  She acknowledged that the spring assessment at the end of sixth grade was only two points higher than his score at the end of fifth grade but indicated that the score was "still higher than 54 percent of his peers" (id. at p. 11).  The literacy teacher indicated that the multisensory instruction he received for the 2022-23 school year may have been addressing skills that he had already mastered (id. at pp. 11-12).  The sixth grade general education teacher reported that, by mid-April 2023, the student was able to read seventh grade informational text independently and, with eighth grade text, he was able to decode at the independent level and comprehend at the eighth grade instructional level, which demonstrated progress despite the NWEA scores (id. at p. 15).

During the August 2023 CSE meeting, the chairperson indicated that they had "all kinds of these different pieces of evaluative information that are painting slightly different pictures" of the student's functioning (Parent Ex. UU at p. 45).  However, she opined that there seemed to be a consensus that spelling continued to be an area of significant difficulty (id.).  Further review of the evaluative information contained within the hearing record supports the fact that there are mixed results; however, what appears to be consistent are the areas where the student does struggle and based on the information discussed in detail above the August 2023 CSE recommended appropriate instruction to address the student's reading and writing needs.

As noted above, the CSE added resource room, specifying a class size of 5:1, two days out of a three-day cycle to provide supplemental multisensory reading instruction with a focus on spelling and decoding to replace the multi-sensory reading instruction included on the November 2022 as a supplementary aid or service (compare Parent Ex. B at p. 9 with Parent Ex. C at p. 9; see Parent Ex. UU at pp. 102-03).[16]  Accordingly, the service was not identical to the service included on the student's November 2022 IEP and was recommended to address the areas of continued need that the student exhibited over the course of the 2022-23 school year.  Based on the foregoing, the evidence in the hearing record does not demonstrate that the August 2023 CSE's recommendation for specialized reading instruction within a resource room denied the student a FAPE for the 2023-24 school year.

C. Other Claims Relating to Both School Years

1. Assistive Technology and Assistive Technology Services

One of the special factors that a CSE must consider is whether the student "requires assistive technology devices and services, including whether the use of school-purchased assistive technology devices is required to be used in the student's home or in other settings in order for the student to receive a [FAPE]" (8 NYCRR 200.4[d][3][v]; see 20 U.S.C. § 1414[d][3][B][v]; 34 CFR 300.324[a][2][v]; see also Educ. Law § 4401[2][a]).  Federal and State regulations describe an assistive technology device as "any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability" and assistive technology service as "any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device" (34 CFR 300.5, 300.6; 8 NYCRR 200.1[e]; [f]).  Furthermore, State regulations consider assistive technology services to be a related service defined as a "developmental, corrective, and other supportive services as are required to assist a student with a disability" (8 NYCRR 200.1[qq]).[17]  The failure to recommend specific assistive technology devices and services rises to the level of a denial of a FAPE only if such devices and services are required for the student to access his educational program (see, e.g., Application of the Bd. of Educ., Appeal No. 13-214; Application of a Student with a Disability, Appeal No. 11-121).

On appeal, the parent asserts that the November 2022 and August 2023 IEPs did not contain any assistive technology and that, as the educational specialist recommended direct assistive technology services, the IEP was deficient for failing to include them.

Contrary to the parent's contention, while perhaps not listed under the designated headings for assistive technology, a review of the November 2022 IEP shows that the CSE recommended the student have access to assistive technology programs that allow for speech to text and text to speech (Parent Ex. D at pp. 7-10).  Additionally, the CSE recommended the following low-tech devices: graphic organizers; shortened pencil or pencil grip; and lined, spacing or graph paper (id.).  Similarly, a review of the August 2023 IEP shows that the CSE recommended the student have access to the following assistive technology programs: speech to text, word prediction software and a word processing program with spell check, graphic organizers, and lined or graph paper (Parent Ex. B at pp. 9-11).

Assistive technology services are defined as "any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device" (34 CFR 300.6).  The September 2022 private educational evaluation included a recommendation for "[d]irect assistive technology services" (Parent Ex. BB at p. 21).  Similarly, the July 2023 RtI evaluation conducted by the private educational specialist indicated that the student needed "[d]irect assistive technology services," then in the same paragraph described that, although the student had "specific accommodations provided through his IEP," he was not recommended for "direct OT consultation services" (see Parent Ex. N at p. 10).  Neither of the private evaluations articulates the basis for a recommendation of direct assistive technology services (see generally Parent Exs. N; BB).

While a CSE must consider independent educational evaluations whether obtained at public or private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]).  However, consideration does not require substantive discussion, or that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight or adopt their recommendations (Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 753 [2d Cir. 2018], citing T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993]; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004] [noting that even if a district relies on a privately obtained evaluation to determine a student's levels of functional performance, it need not adopt wholesale the ultimate recommendations made by the private evaluator], aff'd, 142 Fed. App'x 9 [2d Cir. July 25, 2005]; see Michael P. v. Dep't of Educ., State of Hawaii, 656 F.3d 1057, 1066 n.9 [9th Cir. 2011]; K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 805-06 [8th Cir. 2011]; Evans v. Dist. No. 17, 841 F.2d 824, 830 [8th Cir. 1988]; James D. v. Bd. of Educ. of Aptakisic-Tripp Community Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 818 [N.D. Ill. 2009]).

With respect to the November 2022 IEP, there is no indication that the student required assistive technology services in order to receive a FAPE.  According to a May 2021 district psychoeducational evaluation, the student had been using a word processor and speech-to-text software (Parent Ex. D at p. 3).  There is no evidence in the hearing record that the student was struggling with using the assistive technology.

It appears that, leading up to the CSE meeting during the 2022-23 school year, an occupational therapist worked with the student's special education teacher "to monitor his use of technology for written assignments" (Dist. Ex. 25 at p. 1).  The occupational therapist indicated the student continued to use the computer for longer assignments, needed reminders to spell check, and would continue to benefit from practicing his typing skills at home this summer (id.). The occupational therapist stated the student would continue to receive "indirect OT consultation services as needed during the first quarter next school year to monitor his motor skills and use of technology within the classroom" (id.).  The August 2023 IEPs included a recommendation for OT consultation services as needed (Parent Ex. B at p. 11).

Based on the foregoing, the evidence in the hearing record does not demonstrate that the CSEs' assistive technology or assistive technology service recommendations denied the student a FAPE.

2. Consultant Teacher Services

As noted above, the November 2022 CSE recommended that the student receive "[d]irect and [i]ndirect" consultant teacher services for one 120-minute period per week in English Language Arts (ELA), along with indirect consultant teacher services for science and social studies (Parent Ex. D at p. 9).  The August 2023 CSE recommended "[d]irect and [i]ndirect" consultant teacher services for ELA (one 120-minute session), science (one 60-minute session), and social studies (one 60-minute session) (Parent Ex. B at p. 8).  As the parent does not challenge the recommendation for consultant teacher services but takes issue with the description of the services as "direct and indirect" rather than "differentiating between direct and indirect consultant teacher services" (Req. for Rev. ¶¶ 11, 34).

State regulations define consultant teacher services as "direct or indirect services . . . provided to a student with a disability in the student's regular education classes and/or to such student's regular education teachers" (8 NYCRR 200.1[m]; see 8 NYCRR 200.6[d]).  State regulation also defines direct consultant teacher services as "specially designed individualized or group instruction provided by a certified special education teacher . . . to a student with a disability to aid such student to benefit from the student's regular education classes" (8 NYCRR 200.1[m][1]).  Further, as the parent notes, State regulation provides that an IEP should state "the anticipated frequency, duration and location" for each recommended service (8 NYCRR 200.4[d][2][v][[b][7]).

The New York State Education Department's (NYSED's) Office of Special Education published guidance reflects that direct and indirect consultant teacher services "can be combined" (see "Continuum of Special Education Services for School-Age Students with Disabilities," at pp. 8-11, Office of Special Educ. [Nov. 2013], available at https://www.nysed.gov/sites/default/files/programs/special-education/continuum-of-special-education-services-for-school-age-students-with-disabilities.pdf).  The guidance further indicates that the IEP must specify the general education class where the student will receive the services and "should specify the type of [consultant teacher] services the student will receive (i.e., direct or indirect) so that it is clear to parents and educators the extent to which such services will be provided" (see "Continuum of Special Education Services for School-Age Students with Disabilities," at p. 9).  Additional guidance from NYSED's Office of Special Education includes similar language about the IEP, but specifies the type of consultant teacher services as "direct and/or indirect" and also includes an example wherein the consultant teacher services in the example IEP are described as "direct and indirect" consistent with the manner in which the district drafted both the November 2022 IEP and August 2023 IEP ("Question and Answers on Individualized Education Program (IEP) Development, The State's Model IEP Form and Related Documents IEP," at p. 28, Office of Special Educ. [Oct. 2010], available at https://www.nysed.gov/sites/default/files/programs/special-education/questions-answers-iep-development_0.pdf).  The guidance further specifically notes that "there is no requirement that the IEP specify separately the frequency and duration of direct versus indirect consultant teacher services" (id. at pp. 27-28).

In consideration of the guidance published by the Office of Special Education, I find that the CSEs' descriptions of the recommendation for consultant teacher services as "direct and indirect" was not in contravention of State regulation and, moreover, there is no indication that the recommendation was not designed to allow the student to receive educational benefit.

VII. Conclusion

Having determined that the evidence in the hearing record supports the IHO's conclusions that the district offered the student a FAPE for the 2022-23 and 2023-24 school years, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.