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 district) appeals from a decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondents' (the parents') son and ordered it to reimburse the parents for their son's tuition at the Windward School (Windward) for the 2022-23 school year.  The parents cross-appeal from that portion of the IHO's decision which found that the district offered the student an appropriate educational program for the 2023-24 school year.  The appeal must be sustained.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

The student has received diagnoses of attention deficit hyperactivity disorder (ADHD) combined type; specific learning disorder in reading (dyslexia) and written expression (dysgraphia); generalized anxiety disorder; and social phobia (see Parent Ex. C at p. 10).[1]

On April 7, 2022, the CSE convened for an annual review and found the student eligible for special education services as a student with an other health impairment (see Parent Ex. B).[2]  The CSE recommended, that beginning September 6, 2022, the student receive integrated co-teaching (ICT) services three hours per day and one 30-minute session per week of speech-language therapy in a small group (Parent Ex. B at p. 7).  As supplementary aids and services, program modifications, and accommodations, the April 2022 CSE recommended pacing, checks for understanding, preferential seating, editing checklists for writing, graphic organizers, support for organization skills, refocusing and redirection, and tasks broken down (id. at pp. 7-8).  As supports for school personnel on behalf of the student, the April 2022 CSE recommended one 30-minute session per quarter of counseling consultation (id. at p. 8).  The district sent a prior written notice to the parents dated April 7, 2022 which summarized the April 2022 CSE's recommendations (Dist. Ex. 15).

The student underwent a private neuropsychological and educational evaluation on April 12, 2022 and April 13, 2022 (see Parent Ex. C).  The parents provided the CSE with the evaluation on or around August 22, 2022 (see Tr. p. 686).

On August 26, 2022, the student underwent initial educational screening at Windward (Dist. Ex. 40).  On August 31, 2022, the parents signed an enrollment contract with Windward for the student to attend during the 2022-23 school year and paid a nonrefundable deposit of $5,000 (Parent Ex. U; see Tr. pp. 1158-159).[3]

In a letter to the district dated September 4, 2022, the parents indicated their intent to enroll the student at Windward for the 2022-23 school year because they believed the student had not received an appropriate education while attending the district public school during the past four years (Parent Ex. D).  The parents also indicated that they would seek tuition reimbursement from the district for the costs associated with the student's placement at Windward (id. at p. 2).  On September 6, 2022, the parents officially withdrew the student from the district (Dist. Ex. 24 at p. 1).

On September 16, 2022, the CSE convened for a requested review to discuss the April 2022 private neuropsychological evaluation and the parents' September 2022 10-day letter rejecting the proposed program recommended in the student's April 2022 IEP (Parent Ex. F at p. 1).  According to the meeting information summary, the CSE amended the student's accommodations and modifications, as recommended by the private neuropsychological evaluation, and determined that it  would reconvene to refine goals and supports when additional district testing was completed (id.).  The September 2022 CSE recommended the same program and related services as the April 2022 CSE with the addition of four 42-minute sessions per week of specially designed reading instruction in a small group, and one 30-minute session per week of counseling in a small group (compare Parent Ex. F at pp. 14-15, with Parent Ex. B at p. 7).  In addition to the recommended supplementary aids and services, program modifications and accommodations in the April 2022 IEP, the September 2022 CSE also recommended that the student be provided with models and examples, movement breaks, a positive reinforcement plan and special paper (compare Parent Ex. F at pp. 15-16, with Parent Ex. B at pp. 7-8).  The September 2022 CSE also recommended the same supports for school personnel on behalf of the student as the April 2022 CSE and in addition recommended two 30-minute team meetings per year with the parents and two 42-minute sessions per month of literacy consultation (compare Parent Ex. F at p. 16, with Parent Ex. B at p. 8).  The September 2022 CSE also recommended an assistive technology evaluation be conducted to determine how the student engaged with and would benefit from the use of assistive technology within the classroom setting (Parent Ex. F at p. 16).

The student attended Windward for the 2022-23 school year (Parent Exs. A ¶ 36; M-Q).

On March 27, 2023, the district sent the parents a meeting notice indicating a CSE meeting was scheduled for May 10, 2023 (Dist. Ex. 27).  The CSE convened on May 10, 2023 for the student's annual review and to develop an IEP for the 2023-24 school year (see generally Dist. Ex. 28).  The May 2023 CSE found the student remained eligible for special education services as a student with an other health impairment and developed an educational program for the student with an implementation date of September 5, 2023, which recommended the same special education program and related services as the September 2022 CSE in addition to a 5:1 resource room program every other day for 42-minutes and one 30-minute session per week of occupational therapy (OT) in a small group (compare Dist. Ex. 28 at p. 16, with Parent Ex. F at 14-15).  The May 2023 CSE recommended the same supplementary aids and services, program modifications, and accommodations as the September 2022 CSE (compare Dist. Ex. 28 at pp. 16-17, with Parent Ex. F at pp. 15-16).  The May 2023 CSE also recommended the same supports for school personnel on behalf of the student as the September 2022 CSE with an additional recommendation for one 30-minute session per month of speech-language consultation (compare Dist. Ex. 28 at p. 18, with Parent Ex. F at p. 16).  Lastly, the CSE continued to recommend that the student undergo an assistive technology evaluation (Parent Ex. 28 at p. 17).

In a prior written notice to the parents dated May 12, 2023, the district requested consent to reevaluate the student (Dist. Ex. 30 at p. 1).  The parent signed and returned the consent form for the district to conduct a neuropsychological evaluation, a social history, and a speech and language evaluation on May 24, 2023, which was received by the district on or around June 1, 2023 (id. at p. 2).  The speech and language evaluation was completed on June 23, 2023 and the neuropsychological evaluation was completed on August 22, 2023 (Dist. Exs. 32 at p. 1; 33 at p. 1).

In a letter to the parents dated July 5, 2023, the district informed the parents that the district's Board of Education reviewed the recommendations of the May 2023 CSE and that the Board of Education supported the recommendations (Dist. Ex. 29).

The student attended Windward for the 2023-24 school year (see Parent Exs. W-Y; DD).

On October 17, 2023, the CSE reconvened for a requested review to discuss updated neuropsychological testing and reports from Windward (Dist. Ex. 34 at p. 1). The October 2023 CSE continued to find the student eligible for special education services as a student with an other health impairment and recommended the same special education program with related services  and supports for school personnel on behalf of the student as the May 2023 CSE (compare Dist. Ex. 34 at pp. 1, 19, 21-22 with Dist. Ex. 28 at pp. 1, 16-18).  The October 2023 CSE recommended the same supplementary aids and services, program modifications, and accommodations as the May 2023 CSE with additional recommendations to allow the student wait time to respond to oral questions and to provide the student with a copy of class notes in print or digital format (compare Dist. Ex. 34 at pp. 20-21, with Dist. Ex. 28 at pp. 16-17).  The October 2023 CSE also recommended additional testing accommodations and modified the student's annual goals (compare Dist. Ex. 34 at pp. 17-19, with Dist. Ex. 28 at pp. 14-15).  The district sent a prior written notice to the parents, dated October 17, 2023, which summarized the October 2023 CSE's recommendations (see Dist. Ex. 36).

A. Due Process Complaint Notice

In a due process complaint notice dated November 27, 2023, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23 and 2023-24 school years (Parent Ex. A ¶ 59).   More specifically, the parents alleged that the district: failed to appropriately evaluate the student; failed to appropriately consider evaluative data; predetermined the student's program and placement; failed to offer methodologies and/or strategies based on peer-reviewed research; failed to include measurable annual goals targeted at the student's needs; failed to provide appropriate related services; denied the parents the opportunity for meaningful participation in the CSE process; failed to provide adequate instruction, supports and services including appropriate reading interventions; failed to recommend appropriate mental health supports to ensure the student's condition of dyslexia did not undermine his motivation and engagement; and procedurally denied the student a FAPE  (id. ¶¶ 50-58; 60).[4]  The parents also alleged that Windward was an appropriate unilateral placement and that equitable considerations favored their requested relief (id. ¶¶ 62-75).  As relief, the parents requested: a finding that the district denied the student a FAPE for the 2022-23 and 2023-24 school years; a finding that the alleged violations significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE and caused a deprivation of educational benefits; tuition reimbursement or prospective payment for the student's placement at Windward for the 2022-23 and 2023-24 school years; reimbursement for the cost of the private evaluations provided to the CSE at the parents' expense; and payment for transportation and other related costs (id. at p. 12).

B. Impartial Hearing Officer Decision

An impartial hearing convened on April 2, 2024 and concluded July 16, 2024 after seven days of proceedings (Tr. pp. 1-1230).  In a sixty-eight page decision dated November 14, 2024, the IHO determined that: the district denied the student a FAPE during the 2022-23 school year; the district offered the student a FAPE for the 2023-24 school year; Windward provided the student with appropriate supports and services and the student made meaningful progress in all areas of need; and equitable considerations weighed in favor of both parties equally (see IHO Decision at pp. 49-68).

In regard to the IHO's conclusion that the district failed to offer the student a FAPE during the 2022-23 school year, the IHO determined that the district failed to evaluate the student in all areas of suspected disability and failed to recommend appropriate special education services to address his continued areas of need, specifically in reading and writing, and in his social emotional deficits (IHO Decision at p. 49).

The IHO discussed the student's educational history during the 2020-21 and 2021-22 school years and found that the district was on notice that there was a concern the student had a language-based learning disability when the CSE met in December 2020 and removed response to intervention (RTI) services in favor of the recommended ICT services three hours per day (IHO Decision at p. 50).  The IHO noted that RTI services were added back to the student's schedule for the 2021-22 school year (third grade) even though he was also receiving ICT services (id.). In addition, the IHO noted that the April 2022 CSE knew the student had language deficits and a genetic history of dyslexia, and, it possessed a clinical summary note indicating the student had ADHD and a possible language-based learning disability in reading and writing and an educational evaluation had demonstrated the student was performing below average in numerous areas of English language arts (ELA) (id.)  Further, the IHO noted that the CSE knew the student was again receiving RTI in addition to ICT services (id.). The IHO found that despite the above, the CSE did not request or conduct any further evaluations or assessments of the student to comprehensively assess his reading and writing skills (id. at p. 50).

The IHO noted that the parents were providing the student with the additional support of a reading tutor (IHO Decision at p. 51).  The IHO determined that there were "many red flags" over the years that should have alerted the district that the student required, at a minimum, additional testing to comprehensively assess all areas of functioning and target information on underlying reading skills and that ICT services alone were not sufficient, based on the extra support the student received outside of ICT (RTI and home tutoring); yet the district continued to make the same recommendation for the beginning of the 2022-23 school year (id. at p. 53).

Regarding the student's social and emotional needs, the IHO discussed that the student told the district school psychologist on more than one occasion that he did not like leaving class and felt like he was the only one but that there were no goals added to the April 2022 IEP to address these concerns and that counseling services were discontinued, and a counseling consult was added but only to address the student's peer relationships (IHO Decision at p. 51).

Then the IHO discussed the September 2022 IEP and determined that the student's reading and writing annual goals remained the same despite the September 2022 CSE having new information regarding the student's diagnoses of dyslexia, dysgraphia, social phobia, and generalized anxiety disorder; that the September 2022 CSE failed to recommend specially designed writing instruction and there was no evidence of when such service could be provided during the school day; and further found there was no evidence in the record that any other options were considered by the September 2022 CSE, such as a smaller classroom setting where the academic curriculum and the student's reading and writing deficits could be addressed within the classroom and he would not have to be pulled out for separate reading instruction (IHO Decision at p. 53-54).  The IHO found that although the September 2022 CSE recommended additional assessment of the student, the CSE should have conducted comprehensive reading testing or a specialized reading evaluation prior to the April 2022 CSE meeting (id. at p. 55).

In regard to the IHO's conclusion that the May 2023 IEP was reasonably calculated to enable the student to make progress appropriate in light of his circumstances and designed to provide the student with a FAPE for the 2023-24 school year, the IHO discussed the evaluations considered; the annual goals developed; program modifications and accommodations recommended; the special education program with related services recommended; and the recommended multi-sensory research-based reading interventions (IHO Decision at pp. 55-58).  Based on the IHO's discussion of the May 2023 IEP, the IHO determined the IEP was appropriate because the recommended program, including services, accommodations and modifications, aligned with the student's management needs "which established goals that would inform specially designed reading and accommodation modifications for the [s]tudent so that he could access the general education curriculum in the least restrictive setting" (id. at p. 58).

In regard to the IHO's conclusion that Windward provided the student with the appropriate support and services that he required to make meaningful progress in all areas of need, the IHO discussed Windward, and the educational programs and services generally offered at the school (IHO Decision at pp. 62-63). The IHO discussed the student's record at Windward and determined that the student was demonstrating progress in the areas of vocabulary and reading; that Windward used an Orton-Gillingham approach to teach reading, spelling, and handwriting;  that the student's reading comprehension, both literal and inferential, was given special attention; that the student demonstrated progress in ELA and was starting to approach proficiency in some areas of reading comprehension, decoding and written expression; that in social studies, science and math, the student consistently demonstrated progress and/or was approaching proficiency throughout the 2022-23 school year and by the fourth quarter was proficient in many areas of social studies, science and math computation; that the student was attentive during class; and that within three months of attending Windward the student was reading, not fighting with his parents, showed interest in his work and his confidence had improved (id. at p. 63-66).  Accordingly, the IHO found Windward was an appropriate unilateral placement for the student (id. at p. 67).

Lastly, the IHO determined that equitable considerations weighed equally between the district and the parents (IHO Decision at p. 67).  The IHO found that the parents participated in all aspects of the CSE process despite a delay in signing consent for additional district testing in September 2022 and that the district failed to evaluate the student in a timely manner prior to the April 2022 CSE (id.).

As relief, the IHO ordered the district to reimburse the parents for the full tuition and fees paid by them to Windward for the 2022-23 school year (IHO Decision at p. 68).

IV. Appeal for State-Level Review

The district appeals, alleging that the IHO erred in determining the district failed to offer the student a FAPE for the 2022-23 school year.  The district argues that the September 2022 IEP was the operative IEP for the 2022-23 school year and, accordingly, the IHO erred by not considering whether the programs and services recommended in the September 2022 IEP offered the student a FAPE.  The district further argues it timely responded to the parents' 10-day notice of their intent to unilaterally place the student at Windward; the IHO erred in determining the September 2022 IEP was not appropriate because the district should have conducted a more thorough evaluation more than a year before the development of the IEP at issue; the district did not violate its child find obligations because the student was classified since 2020; the IHO failed to consider that the parents declined consent for an evaluation; the IHO erred in determining that the absence of more specific reading goals rendered the IEP inappropriate; the IHO erred in determining the absence of a specially designed writing program rendered the IEP inappropriate; the IHO improperly determined the IEP failed to address the student's emotional deficits; and the IHO improperly relied on alleged failures from the 2020-21 school year and prior in determining the April 2022 IEP was not appropriate.

The district also argues that the IHO erred in finding Windward appropriate because the parents did not offer testimony from any teachers, directors, or other employees from Windward to discuss the services actually provided to the student during the 2022-23 school year.  The district argues that the IHO improperly relied on hearsay testimony of the parents' expert witness in pediatric language and literacy to determine that Windward was appropriate.  The district further argues that equitable considerations did not favor the parents' request for reimbursement because the parents did not engage in a sincere effort to work with the CSE to develop a program for the student; the parents waited almost three months to provide the CSE with the April 2022 independent neuropsychological and educational evaluation; and the parents refused to sign consent for the district to conduct a reevaluation for almost a year.

The district requests reversal of the IHO's determinations that it failed to evaluate the student for the 2022-2023 school year, that the IEPs for the 2022-23 school year were inappropriate, that the Windward program was appropriate, and that equitable considerations did not bar a claim for tuition reimbursement, as well as a finding that the district offered the student a FAPE for the 2022-23 school year.[5]

In an answer with cross-appeal the parents respond to the district's allegations.  More specifically, the parents argue the IHO correctly determined the district failed to offer the student a FAPE during the 2022-23 school year.  The parents assert that: the IHO considered the operative IEP in rendering the decision; the IHO correctly held that the September 2022 IEP was inappropriate, in part, because of a failure to evaluate the student; the parents' denial of consent in September 2022 had no bearing on whether the district inappropriately failed to evaluate the student in April 2022; had the district evaluated the student in April 2022, it would have been able to propose new and appropriate reading goals; the IHO correctly held that the September 2022 IEP did not meet the student's individualized needs in writing; the IHO appropriately considered "red flags" from prior years establishing the need to evaluate the student in April 2022 in deciding the claims related to the 2022-23 school year; and the IHO correctly held that the September 2022 IEP did not address the student's social-emotional needs.  The parents also argue that the IHO correctly determined Windward was appropriate and correctly balanced equitable considerations.

As to the parents' cross-appeal, the parents first claim the IHO erred in determining the district met its burden of production and persuasion to demonstrate the IEP for the 2023-24 school year addressed all of the student's identified needs related to his language-based learning disabilities.  The parents allege that the IEPs for the 2023-24 school year required 10 pullout sessions per week which was not only inappropriate for the student, but also bordered on cruelty due to the number of transitions expected.  The parents also assert that the hearing record does not establish how or why ICT services had become appropriate for the 2023-24 school year, nor does it support the IHO's finding that the CSE developed goals informed by the student's areas of need and then aligned the goals with appropriate program recommendations and modifications.  Specifically, the parents argue there is no indication that the annual goals align with Orton-Gillingham or any other research-based approach for reading.

Next, the parents claim that the IHO erred in finding that the district proved that the 2023-24 IEP addressed all of the student's identified speech needs.  The parents allege the district did not identify all of the student's speech needs because the June 2023 speech testing did not provide a comprehensive assessment of his language ability and because the IEPs for the 2023-24 school year did not have any goals to address the student's weaknesses in grammar and idiomatic language.

As for the next issue in their cross-appeal, the parents argue that the IHO erred in failing to find that the district predetermined the student's placement and denied the parents meaningful participation.  The parents claim the CSE only considered programming options offered within the district and that the district made no material changes and offered no other option during the CSE meetings.  The parents allege the district knew that pullout instruction was detrimental to the student, yet the CSE proposed a program that required up to 10 pullout sessions, because that was the only way to deliver instruction within the district.  The parents also argue that the IHO failed to consider that the 2023-24 IEP did not offer methodologies based on peer-reviewed research.  As relief, the parents request an order: affirming the IHO's determination that the district failed to offer the student a FAPE for the 2022-23 school year, that Windward was an appropriate unilateral placement, and that equities favored the parents; and reversing the IHO's determination that the district offered the student a FAPE for the 2023-24 school year along with an award of tuition reimbursement for the cost of the student's program at Windward for the 2023-24 school year.[6]^, [7]

The district submitted an answer to the parent's cross-appeal addressing each of the allegations raised by the parents.

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]).[8]

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. Scope of the Impartial Hearing

Initially, I will address the district's arguments that the parents did not raise a child find violation issue in their due process complaint notice, that the IHO erred in determining that the district violated its child find obligation, and that the IHO made findings regarding the 2020-21 and 2021-22 school years that were not alleged in the due process complaint notice and would be barred by the statute of limitations.

Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing (Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056).  Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[i][7][i][a]; [j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]).  Indeed, "[t]he parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function.  To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district" (R.E., 694 F.3d 167 at 187-88 n.4; see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 [2d Cir. June 18, 2014]).

When a matter arises that did not appear in a due process complaint notice, the next inquiry focuses on whether the district, through the questioning of its witnesses, "open[ed] the door" to the issue under the holding of M.H. v. New York City Department of Education (685 F.3d at 250-51; see also Bd. of Educ. of Mamaroneck Union Free Sch. Dist. v. A.D., 739 Fed. App'x 79, 80 [2d Cir. Oct. 12, 2018]; B.M., 569 Fed. App'x at 59; J.G. v. Brewster Cent. Sch. Dist., 2018 WL 749010, at *10 [S.D.N.Y. Feb. 7, 2018]; C.M. v. New York City Dep't of Educ., 2017 WL 607579, at *14 [S.D.N.Y. Feb. 14, 2017]; D.B. v. New York City Dep't of Educ., 966 F. Supp. 2d 315, 327-28 [S.D.N.Y. 2013]; N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 584-86 [S.D.N.Y. 2013]; A.M. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 282-84 [S.D.N.Y. 2013]; J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, *9 [S.D.N.Y. Aug. 5, 2013]).

A review of the parents' November 27, 2023 due process complaint notice shows that the parents did not allege that the district failed in its child find obligations, rather it alleges that for the 2022-23 and 2023-24 school years the IEPs developed were inappropriate due to various procedural and substantive violations (see Parent Ex. A).  Additionally, the hearing record shows that the student was evaluated in 2020 and had an IEP developed in December 2020 (Dist. Exs. 8; 9).  Accordingly, during the school years in question the student had already been found eligible for special education by the district.  The April 2022 and May 2023 CSEs convened to conduct annual reviews, and the September 2022 and October 2023 CSEs convened to conduct requested reviews, not initial eligibility meetings (see Parent Exs. A ¶¶ 6, 21, 38, 48; B at p. 11; F at p. 1; Dist. Exs. 26 at p. 1; 34 at p. 1).  There is also no evidence that the district opened the door to such issue through the examination of its witnesses (see Tr. pp. 43-114, 156-169, 185-263, 314-324, 335-343, 512-14, 522-565, 590-613, 620-660, 705-12).

However, although the IHO cites to the child find provisions of the IDEA in her decision to show that the district should have known that the student had reading needs that required, at a minimum, additional testing to comprehensively assess all areas of functioning and target information on the student's underlying reading skills, the IHO may have been using the wrong terminology to  characterize her findings as she could instead have applied a sufficiency of evaluative information standard rather than one based on the district's child find obligations  to analyze whether the IEPs developed for the student for the 2022-23 school year were insufficient based on a lack of evaluations that targeted the student's reading needs (see IHO Decision at pp. 52-53).  Accordingly, child find will not be further discussed but this decision will address the sufficiency of evaluative information considered by the September 2022 CSE to determine if the IHO erred in finding the district denied the student a FAPE for the 2022-23 school year.

Regarding the IHO's alleged findings for the 2020-21 and 2021-22 school years, despite the district's argument  that the IHO decided claims not asserted in the due process complaint notice in her decision, it appears the IHO relied on evidence of the student’s reading and writing and social emotional needs during the 2020-21 and 2021-22 school years to support her finding that the September 2022 CSE failed to sufficiently evaluate the student (see IHO Decision at pp. 49-55).  Further, it is the district who submitted the student's prior IEPs for the 2020-21 and 2021-22 school years and prior progress reports and evaluations into the hearing record that were relied on by the IHO in her decision (id.; see also Dist. Exs. 2-13).  There is nothing in the hearing record that indicates the IHO improperly addressed claims not raised in the due process complaint notice. Rather, the IHO used the information provided to support her finding that there were "red flags…since Kindergarten" that the district should have been aware of and which should have prompted it to perform additional evaluations with respect to the educational programming it recommended for the student for the 2022-23 school year (see IHO Decision at pp. 49-55).  Accordingly, the IHO did not err by relying on the student's educational history from the 2020-21 and 2021-22 school years as such information was available and relied on by the September 2022 CSE.

B. Sufficiency and Consideration of Evaluative Information

Initially, I will note that the operative IEP for the 2022-23 school year was the September 2022 IEP.  The September 2022 IEP was developed on September 16, 2022, within 10 business days after the parents' September 4, 2022 letter informing the district of their intent to unilaterally place the student at Windward (Parent Exs. D; F).  Additionally, both parties in their pleadings acknowledge that the September 2022 IEP was the controlling IEP for the 2022-23 school year and thus the following discussion regarding the 2022-23 school year will focus on the September 2022 CSE process and resultant September 2022 IEP (see Req. for Rev. at p. 1; Answer with Cross-Appeal at p. 2).

The IHO determined that the district failed to evaluate the student in all suspected areas of disability, specifically in reading, writing, and social/emotional development and that the district failed to provide the student a FAPE for the 2022-23 school year (IHO Decision at pp. 49-55).  More specifically, the IHO determined that the district knew the student had language-based deficits and should have evaluated the student in April 2022, at the time of the CSE's annual review of the student for the 2022-23 school year, to "comprehensively assess his reading and writing skill" (id. at p. 50).[9]

The district argues the IHO erred by failing to consider that the parents declined consent to evaluate the student and erred in determining the district should have conducted a more thorough evaluation of the student more than a year before the development of the September 2022 IEP.

Federal and State regulations require that a district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]).  A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).  Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see S.F., 2011 WL 5419847 at *12 [S.D.N.Y. Nov. 9, 2011]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).  In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]).  A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]).  An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]).  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]).

Here, although the IHO discussed the evaluative information at length within her decision, the evidence in the hearing record does not support her conclusion that the district needed more information in order to develop a program to address the student's needs; rather, the evaluative information before the September 2022 CSE shows that the district considered the available information, including the April 2022 private neuropsychological evaluation and CSE member input, when developing the September 2022 IEP (see generally Parent Ex. F).  Although the district requested consent to do further evaluations in September 2022, this does not negate that, at the time of the September 2022 CSE meeting, there was sufficient evaluative information regarding the student's needs , as addressed further below, for the September 2022 CSE  to recommend an appropriate program, including annual goals, that targeted the student's needs (see Dist. Ex. 23).

As it relates to the development of the September 2022 IEP, the district argues that the parents did not provide consent to allow it to conduct additional reading evaluations of the student prior to the September 2022 CSE meeting.  On August 31, 2022, the district sent the parents a prior written notice "requesting consent to conduct a reevaluation" of the student (Dist. Ex. 23).[10]  The August 2022 prior written notice indicated the district's intent to conduct a psychological evaluation, educational evaluation, classroom observation, speech-language evaluation, and a social history update (id. at p. 1).  It does not appear that the parents completed the consent to evaluate forms (see Tr. pp. 597-98, 1154-56).  However, federal and State regulations provide that parental consent is not required to conduct a reevaluation if the district can demonstrate that it "made reasonable efforts to obtain such consent," and the student's parent "failed to respond" (34 CFR 300.300[c][2]; see 8 NYCRR 200.5[b][1][i][b]). Federal and State regulations also permit the use of consent override procedures, specifically due process, if the parent refuses to consent to a reevaluation (34 CFR 300.300[c][1][ii]; 8 NYCRR 200.4[a][8]; 200.5[b][3]). Thus, if the district follows the necessary consent procedures for reevaluation but the parent does not respond, the district is encouraged to reevaluate the student despite the failure to respond.  Nevertheless, a review of the hearing record shows that the September 2022 CSE had sufficient evaluative information to make appropriate recommendations for the student for the 2022-23 school year.

According to a meeting information summary of the September 2022 CSE meeting, the CSE convened for a "[r]equested [r]eview" based on the parent's rejection of the April 2022 IEP and unilateral placement of the student at Windward (Parent Ex. F at p. 1).  The meeting summary indicated that the parents shared "a private evaluation for the Committee to review" and reiterated the concerns expressed in their September 4, 2022 letter (Parent Ex. F at p. 1; see Parent Ex. D).  According to the September 2022 summary, "[t]he parents expressed concern that the [d]istrict requested concurrent evaluations after a private evaluation was submitted" while the CSE "noted that the private evaluation[] did not include a comprehensive reading evaluation" (Parent Ex. F at p. 1).

The September 2022 IEP included information regarding the student's present levels of performance from the April 2022 CSE meeting, as well as updated information regarding the student's performance from the parents and the April 2022 neuropsychological evaluation (compare Parent Ex. B at pp. 2-4, with Parent Ex. F at pp. 3-12).

With regard to the student's speech and language development, the September 2022 IEP indicated the student had "greatly improved his topic maintenance," which allowed him to engage in more in-depth discussion and create more social connections (Parent Ex. F at p. 9).  The IEP further indicated that the student had shown improvement in his ability to recall auditory information which allowed him to use the information to respond to problem solving questions involving inferencing and predicting (id.).  The IEP noted that the student continued to benefit from verbal reminders to self-correct his speech during spontaneous conversations (id.).  According to the April 2022 neuropsychological evaluation as identified in the September 2022 IEP, the student's speech was fluent with no errors in articulation noted (id.). On expressive tasks that required the student to demonstrate knowledge of abstract verbal concepts/relationships and define words, his performance ranged from average to above average (id.). Additionally, his performance ranged from below average to above average across tasks that required him to generate groups based on phonemic and categorical cues, respectively (id.). The IEP stated, as reported in the April 2022 neuropsychological evaluation, that the student’s performance was average on tasks that required the student to understand the relationships between words based on their meaning and produce grammatically correct sentences based on pictures accompanied by words or phrases (id.). On receptive tasks that required the student to follow directions that increased in complexity and answer questions about oral material, his performance was average (id.).

Next, the September 2022 IEP provided an overview of the student's study skills (Parent Ex. F at p. 9).  The IEP described the student as a motivated learner who responded to praise (id.)  However, it also noted that, at times, the student began tasks without fully understanding the directions, worked quickly and needed reminders to check his work, and lost focus during classroom instruction and needed to be redirected to task (id.).  Based on the April 2022 neuropsychological evaluation, the September 2022 IEP indicated that the student's attention skills were largely average as he was able to attend to tasks that required him to focus on multiple task demands, as well as temporarily hold and manipulate information (id.).  The IEP noted the student had relative difficulty holding basic information in his mind and that, as task demands became more complex, the student was able to attend better (id.).  Further, based on the evaluation, the IEP indicated that on sustained tasks, when the task was engaging and required the student to listen and respond, he was able to remain engaged; however, when the task was longer, more mundane, and required him to focus on visual stimuli, he was unable to complete the task (id. at pp. 9-10).  The September 2022 IEP also stated, as reported in the April 2022 neuropsychological evaluation, that the student's executive functioning skills were largely average but he had difficulty planning and tended to use a trial-and-error approach instead of developing a specific strategy (id. at p. 10).  In addition, the student had some difficulty controlling impulses, was prone to errors, and was unaware that he was making such errors (id.).

In reading, the September 2022 IEP indicated the student had improved his ability to read at an appropriate pace when decoding text, but that, without reminders for pacing, the student tended to make errors or skip unfamiliar words (Parent Ex. F at p. 10).  The student's decoding errors interfered with his comprehension (id.).  According to the IEP the student's ability to answer questions explicitly stated in a text had improved and the student was working on answering inferential questions (id.).  The April 2022 neuropsychological evaluation, as identified in the September 2022 IEP, indicated that the Wechsler Individual Achievement Test, Fourth Edition (WIAT-IV) was administered to the student and he exhibited clear deficits in sound-letter correspondence and struggled with decoding corresponding patterns that created specific sounds (Parent Ex. F at p. 10). The September 2022 IEP noted that, often, the student was observed guessing words based on the first letter or several strings of letters that he recognized but also noted the student had a great memory and was attempting to memorize words to compensate for his inefficient decoding skills (id.).  According to the September 2022 IEP, the April 2022 neuropsychological evaluation indicated the student's significant frustration was due to laborious demands required of him to decode words and effectively read, relative to same age peers; his deficits in phonological processing and reading fluency measures were further evidence that he had not yet mastered basic sounds to the level of automaticity (id.).  According to the April 2022 meeting information summary, the student's "parents acknowledged improved reading skills" (id. at p. 2).

In spelling, the September 2022 IEP indicated the student had difficulty applying common phonetic rules to spell unknown words (Parent Ex. F at p. 10).  The April 2022 neuropsychological evaluation, as recorded in the September 2022 IEP, indicated that the student struggled with encoding the visual representation of sounds and letter patterns, which resulted in phonemic spelling errors (id.).  The IEP further indicated that, according to the neuropsychological evaluation, the student's pattern of reading and spelling impairments were consistent with dyslexia, a specific type of reading disorder characterized by poor word recognition and phonological processing abilities and spelling deficits (id.).

Turning to writing, the September 2022 IEP stated that the student's writing stamina had improved but that he needed support organizing and adding details to his written work and his written work contained errors in grammar, punctuation, and spelling (Parent Ex. F at p. 10).  According to the WIAT-IV, conducted as part of the April 2022 neuropsychological evaluation and as memorialized in the September 2022 IEP, the student's writing was poor and below age and grade-level expectations (id.).  More specifically, the student's handwriting was difficult to read and he had problems with the spacing of individual letters and words within his sentences; his grammar was poor and filled with capitalization, internal punctuation, and spelling errors; and he had difficulty transforming his thoughts into writing and often compensated by writing about the same topic across multiple questions and tasks (id.).  The September 2022 IEP noted that these deficits made writing incredibly challenging for the student as he struggled to think of what to write and how to elaborate on his thoughts, as well as with the mechanics of forming appropriate sentences (id.)  In addition, the IEP indicated that, as reported in the neuropsychological evaluation, the student's writing deficits were consistent with dysgraphia, a specific type of learning disorder in writing (id.).

In terms of social development, the September 2022 IEP indicated that the student had matured throughout the prior school year but also that he was competitive and enjoyed being the center of attention (Parent Ex. F at p. 11).  According to the IEP, the student was able to express his emotions and use empathy to identify potential thoughts and feelings of others (id.).  The IEP stated that the student was better able to accept feedback regarding the effect of his comments and actions on others that occurred due to his competitive nature (id.).  The April 2022 neuropsychological evaluation, as reflected in the IEP, indicated the student struggled to manage his emotions and was easily overwhelmed and worried (id.).  In addition, when overwhelmed, the student shut down, which made it more difficult to convey his feelings or problem solve (id).  The IEP, citing the April 2022 neuropsychological evaluation, noted that the student displayed inattention to social nuances and impulsivity, which could cause interpersonal conflict (id.).  The IEP stated that the student felt uncomfortable around others as he perceived that he was constantly being judged (id. at p. 12).

In terms of the student's physical development, the September 2022 IEP indicated that there were no concerns that needed to be addressed at the time of the meeting (Parent Ex. F at p. 12).

As detailed above, the present levels of performance included in the September 2022 IEP show that the district had sufficient information both from testing and the input of his teachers and providers, as well as the private neuropsychological evaluation, regarding the student's learning style, academic performance, and functional abilities, including in reading, as well as his  social/emotional development, to develop an appropriate educational program for the student.  While the CSE indicated that it saw some potential value in pursuing further testing of the student in reading, there is no evidence in the hearing record that the CSE determined that there were any areas of the student’s disability for which it did not have adequate evaluative material, and the parents have not identified any specific deficiencies in the evaluative information available to the September 2022 CSE, which included the private neuropsychological evaluation they provided. Accordingly, the evidence in the hearing record shows that the September 2022 CSE had sufficient evaluative information before it to make appropriate recommendations for the student for the 2022-23 school year and the IHO’s determination to the contrary must be reversed.

C. September 2022 IEP

With respect to the substantive recommendations contained in the September 2022 IEP, the IHO found that the district failed to recommend specially designed writing instruction for the student for the 2022-23 school year (IHO Decision at p. 54).  The IHO also took issue with the goals developed by the September 2022 CSE, determining that it did not update the student's reading and writing goals despite reading and writing being the areas of greatest need for the student (IHO Decision at pp. 53-54).

1. Specially Designed Writing Instruction

As an initial matter, specially designed instruction is defined as "adapting, as appropriate to the needs of an eligible student . . ., the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).  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 the IEP of the student as a special class, direct consultant teacher service, related service, 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).

 Here, the student was recommended for specially designed reading instruction in the September 2022 IEP, but the IHO appears to have faulted the district, without citation to a specific definition, description or State statute or regulation that might have shed light on what such a service would encompass, for not recommending some form of specially designed writing instruction as well (IHO Decision at p 54).  However as argued in its request for review, the district is correct that the hearing record contains sufficient evidence that the September 2022 CSE identified the student's writing needs and addressed them in the IEP with specially designed  instruction and adequate supports.

According to the testimony of the student's third-grade special education teacher, the student had difficulty in writing, particularly in expanding ideas, using punctuation and capitalization consistently, and spelling, and thus received moderate support in writing during the 2021-22 school year, which included the use of a graphic organizer and assistance with establishing ideas and revising and editing his work (Tr. pp. 224, 231-32,).  She also testified that the student completed four writing assignments during the school year (Tr. p. 225).  For one of the assignments, the student was expected to include an introduction, a conclusion, and write about at least three topics involving the research assignment; the teacher testified he met grade-level expectations on this assignment and completed more than was required but with moderate support (Tr. pp. 232, 234-35, 300-01; see generally Dist. Ex. 18).  The third-grade special education teacher further testified that for the student's reading response assignment, which he performed independently with no support, his writing showed he understood the text and used details but that he did not answer the final question, repeating some points twice, which did not meet grade-level expectations (Tr. pp. 235-36, 306-07).

The student's third-grade special education teacher was a member of the April 2022 CSE (Parent Ex. B at p. 11).  She testified that, at the CSE meeting, she spoke about how the student's stamina improved, meaning he was able to sustain writing for a longer period of time (Tr. p. 245).  She also spoke about the strategies used to assist the student such as teaching him to monitor his own comprehension and, when he made word substitutions, encouraging him to read through an entire word rather than just focusing on the beginning and ending letter (Tr. pp. 246-48).  The special education teacher reported that the student was receptive to feedback and the strategies she employed helped the student make progress (Tr. p. 248).  The teacher further testified that she did not raise any concerns at the CSE meeting about the student not meeting grade-level expectations in writing because he was progressing towards grade-level expectations (Tr. p. 310).  When questioned on cross-examination whether she believed the student would need to be pulled out of class for writing help during the 2022-23 school year, she testified she did not believe he would need to be pulled out of class but that it would depend on how the class was structured and organized (Tr. p. 311).  The third-grade teacher also testified that the three hours of ICT services was plenty of time to address the student's curriculum needs and that the same program was recommended for the 2022-23 school year (Tr. pp. 311-12).  She also testified that there were a variety of instruction models used within the ICT classroom including parallel teaching where the general education teacher would work with a majority of the classroom and she, as the special education teacher, would work with a small group (Tr. p. 204).

The neuropsychologist who evaluated the student in April 2022 testified that the student "m[et the] criteria for dyslexia" and "dysgraphia" (Tr. p. 756).  The neuropsychologist further testified that ICT services were "not a reading remediation intervention" and that "[t]here were no modifications to [the student's] curriculum to address these writing and reading impairments" (Tr. pp. 771, 772).  The neuropsychologist testified that the student required a "multi-sensory, phonic[s]-based approach" to address his "foundational reading skills" (Tr. pp. 775-76; Parent Ex. C at p. 11).  Further, the neuropsychologist testified that she recommended the student receive "help in . . . the planning and structuring for writing" since "essay writing [was] expected" in the fourth grade (Tr. pp. 776-77, Parent Ex. C at p. 11).

The district school psychologist who attended the September 2022 CSE meeting testified that "substitution errors," like the ones exhibited during the student's neuropsychological evaluation, were "often seen [] in children who struggle with attention and inhibition" as the student did (Tr. p. 364).  The school psychologist further testified that, at the September 2022 CSE meeting, the CSE "talked at length about" whether the student's "difficulties with inhibition or . . . inattention [] play[ed] a role in his substitution errors when reading or" if he had "underlying deficits in phonemic proficiency and phonics" or if it were "both" (Tr. p. 365).  The school psychologist testified that it was the "obligation" of the CSE to "address" the student's needs, including "both" his ADHD and learning disability (Tr. pp. 365-66, 462).

The district school psychologist testified that while specialized reading instruction was specifically recommended on the September 2022 IEP, specialized writing instruction was not "because a lot of his needs regarding writing related to the organization of his writing," which was addressed through "study skills goals and his modifications" (Tr. p. 474).  The school psychologist stated that the student's "needs in writing would be addressed and integrated into his co-teaching class through specialized instruction" (Tr. p. 475).  Further, the school psychologist offered that "a teacher" within the classroom "c[ould] provide Writing Revolution . . . [i]f that teacher felt Writing Revolution was necessary" (Tr. p. 475).  The school psychologist testified that the CSE "[does not] name those programs on the IEP" (Tr. p. 476).  The director of district pupil personnel services  testified that "special[ly] designed instruction focused on writing" and was delivered "within the classroom setting," and explained that that, according to the "program materials," Writing Revolution could be used in small groups or more targeted instruction but that it was "also something that was implemented in the classroom"" (Tr. p. 634).

The hearing record shows that for the 2022-23 school year, the CSE  recommending  that the student's writing needs be addressed through various strategies and services outlined in the September 2022 IEP including, but not limited to, three hours per day of ICT services; pacing to allow the student to slow down and check his work; editing checklists for writing to allow the student to check his writing for appropriate grammar, punctuation, and spelling; graphic organizes to organize and expand the student's writing ideas; movement breaks to support refocusing; use of enlarged graphing paper; and literacy consultation to support the integration of research based reading intervention strategies into the classroom setting  (Parent Ex. F at pp.14-16).  With regard to an annual goal that targeted the student's ability to use spelling resources in order to spell words correctly, the student's third-grade special education teacher reported there were numerous spelling resources and the resources available depended on the teacher (Tr. p. 253).

As overall educational support, the September 2022 CSE adopted the April 2022 CSE's recommendations that the student receive three hours of ICT services daily and one 30-minute session per week of speech-language therapy (compare Parent Ex. B at p 7, with Parent Ex. F at p. 14).  In addition, based on the  new evaluative information available to the September 2022 CSE, the committee amended the student's IEP to add the following services: four 42-minute sessions per week of specially designed reading instruction in a small group using a multi-sensory, research-based reading intervention; and one 30-minute session per week of counseling services in a small group (compare Parent Ex. F at pp. 1, 15, with Parent Ex. B at pp. 1, 7).  The September 2022 CSE also recommended that the following additional supplemental aids and services, program modifications, and accommodations be provided to the student: models and examples; movement breaks; a positive reinforcement plan; and special paper (compare Parent Ex. F at pp. 15-16, with Parent Ex. B at pp. 7-8).  The September 2022 CSE also recommended additional testing accommodations and additional support for school personnel that consisted of  two 30-minute team meetings per year and two 42-minute sessions of literacy consultation per year (compare Parent Ex. F at pp. 16-17, with Parent Ex. B at pp. 8-9).

Accordingly, the evidence in the hearing record shows that the September 2022 CSE recommended an educational program for the student for the 2022-23 school year that, in its totality, was designed to confer educational benefit and enable the student to make progress in the general education curriculum, including ICT services, specially designed reading instruction, and related services that addressed his areas of need, including his need for writing support.    Moreover, as the hearing record supports finding that the student made some progress during the prior school year the September 2022 CSE acted reasonably when it recommended programming for the 2022-23 school year that was similar to what the student received during the 2021-22 school year (see Tr. p. 162; see also S.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523, at *10-11 [S.D.N.Y. Dec. 8, 2011] [decision to recommend continuation of the same program student had made progress in for prior school year was appropriate and a more restrictive placement was not necessary"]), while also taking into account the private neuropsychological evaluation provided to it by the parents.  As a result, to the extent the IHO found that the operative IEP lacked a recommendation for specially designed writing instruction for the student or otherwise failed to address his writing needs, that determination was in error.

2. Annual Goals

The IHO also determined that the September 2022 CSE did not update the student's reading and writing goals despite reading and writing being the student's areas of greatest need (IHO Decision at pp. 53-54).

The district argues the IHO ignored evidence in the hearing record, including testimony from the parents' expert witness, that the goals developed by the September 2022 CSE accurately reflected and addressed the student's needs.

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]).

The September 2022 IEP included the same annual goals for writing as the April 2022 IEP, that targeted the student's ability to write a paragraph with a topic sentence, supporting details, and a concluding sentence, and use spelling resources independently to spell words correctly (compare Parent Ex. B at p. 7, with F at p. 14).  In addition, the September 2022 IEP included the same reading goals as the April 2022 IEP that targeted the student's ability to self-correct errors when decoding and correctly answer inferential questions (compare Parent Ex. B at p. 7, with Parent Ex. F at p. 13).  The September 2022 IEP added three annual goals to those created for the April 2022 IEP including a study skills goal, that focused on the student's self-monitoring skills, social/emotional goals that focused on the student's ability to demonstrate increased flexibility in thinking and improved self-esteem (compare Parent Ex. B at pp. 6-7 with Parent Ex. F at pp. 13-14).

The parents' expert in pediatric language and literacy opined that the annual goal that targeted the student's ability to write a paragraph containing a topic sentence and supporting details was "too generic" and explained that she would have broken the goal down into parts so the student would learn what a topic sentence was and produce topic sentences, and then learn what a supporting detail was and produce supporting details (Tr. pp. 947-48).   She suggested that the goal that targeted the student's ability to use spelling resources to spell words correctly was "too broad and nonspecific to [the student's] educational needs" and it was a challenge to judge (Tr. p. 948).  She indicated she would have preferred to see a goal that identified the student's specific area of spelling deficit, such as "[the student] will learn to spell words with double consonants" (Tr. p. 948).  Further, the parent's expert witness testified that the recommended goals did not align with the Writing Revolution program in which "[students] [we]re taught in a very clear sequence to brainstorm, to organize, to sequence, to outline, then produce sentences" (Tr. p. 949).  The parent's witness also testified regarding the April 2022 private neuropsychological evaluation and the student's decoding issues, stating she reviewed the evaluation, but that additional information would be needed to determine what specific patterns and blends the student struggled with and what program would be needed to remediate such issues (Tr. pp. 1034-035).

The district school psychologist testified that the September 2022 CSE reviewed the April 2022 IEP and considered the updated information from the neuropsychological evaluation as well as the parents, including that the student had been "unilaterally placed at Windward" (Tr. p. 381).  The school psychologist testified that a review of the testing and some of the student's IEPs showed that he tended to rush and read quickly, making errors and thus the decoding goal was recommended to 'make sure [the student was] self-correcting the errors when reading on his instructional level" (Tr. p. 388).  The school psychologist further testified that the decoding goal targeted the student's "executive functioning" in that it focused on "going back and reviewing" a word to ensure it was read "correctly," and the additional testing requested by the district would clarify whether the substitutions made by the student were a result of inattention and impulsivity or "deficits in decoding skills" (Tr. pp. 383-84).   The CSE chairperson testified that the goals for reading addressed the student’s "decoding and comprehension" needs (Tr. pp. 79, 94).  Further, the CSE chairperson offered that "the special education teacher would have the opportunity to work with [the student] in [a] small group or individually" to "develop[] those skills" and that "the concern at the time was more the execution of the tasks" (Tr. pp. 94-95).

The school psychologist also testified that she "[did not] recall any specific disagreement or objection with any of the goals and services" (Tr. p. 407; see Tr. p. 79).

Here, the contents of the September 2022 IEP coupled with the testimony from the district witnesses concerning the development of the student's goals, demonstrate that the district developed goals that addressed all of the student's areas of identified need especially in the areas of reading and writing.  While the parents' witnesses had a differing opinion as to the sufficiency of the writing and reading goals developed for the student, even if the goals in question were lacking in some respect, such a deficiency, in the context of the overall program developed for the student, would not demonstrate that the district denied the student a FAPE for the 2022-23 school year.  Accordingly, the IHO’s determination that the annual goals developed by the September 2022 CSE were not appropriate must be reversed.

3. Social Emotional Support

The IHO further determined that the IEPs for the 2022-23 school year did not properly address the student's social/emotional deficits (IHO Decision at p. 49).  Specifically, the IHO noted that the student told the district school psychologist on more than one occasion, that he did not like leaving class and felt like he was "the only one" (id. at p. 51; see Tr. p. 155).  The IHO also noted that the student's father testified that the parents had consistently shared their concerns with the number of pullout services the student was getting, however the school psychologist could not remember how, or if she responded to their concerns and no goals were added to the April 2022 IEP to address these concerns; instead counseling was discontinued and the counseling consult that was added was only to address peer relationships for the 2022-23 school year (IHO Decision at p. 51; see Tr. pp. 155, 510, 1097-98, 1103, 1121; Dist. Ex. 14 at p. 9).

Regarding the student's counseling services, the school psychologist who provided the student's small group counseling during the 2021-22 school year testified that she focused on self-regulation with the student and that the student was very invested in the sessions (Tr. p. 70).  The school psychologist noted that the student had some sensitivity going to sessions and was "really hard on himself" but once the session was underway, he was a "very active participant and he did well with the lessons and activities" (id.).  She further testified that, during the 2021-22 school year, the student's teachers' concerns were more related to his behaviors when he approached a task, noting that the student was impulsive and rushed through his work (Tr. p. 74).  She also testified that the student was not exhibiting maladaptive behaviors at school that were affecting his ability to learn nor was he disruptive in class (Tr. pp. 74-75).  The school psychologist also testified that the student was "well liked by other kids" and was competitive (id.).

With respect to the student's social-emotional functioning at the time of the first CSE meeting concerning the 2022-23 school year, according to the April 2022 IEP, the parents had expressed concerns about the student's anxiety at home and his ability to self-regulate when playing with peers in his neighborhood (Parent Ex. B at p. 1).  The April 2022 IEP noted that counseling consultation services were added as a way to monitor the student's peer relationships, especially during recess (id.).  The April 2022 IEP also noted that all members of the CSE agreed to discontinue counseling services (id.).

The April 2022 IEP also described  the student as follows: he matured socially throughout the 2021-22 school year; was a competitive student who seemed to enjoy being the center of attention;  did well expressing a range of emotions and could use empathy to identify potential thoughts and feelings of others; improved his awareness of the impact his words had on others and the importance of good sportsmanship that included supportive comments to others; had a competitive nature in social situations which included trying to "outdo" something a peer had shared or made attempts to correct something they had said or done; was better able to accept feedback and guidance from adults to correct these tendencies while helping him to see the effect they could have on others; and the student's self-esteem and confidence in his school-related skills had increased (Parent Ex. B at p. 5).  The April 2022 IEP noted that the student's social strengths continued to include his strong desire for social interaction and his consistent eagerness to share his personal experiences with others (id.).  Additionally, while counseling as a direct service was no longer recommend for the student, the April 2022 IEP noted that the student needed adults to monitor and offer gentle guidance and feedback if he became overly competitive with his peers in social situations (id.).  However, when the CSE reconvened in September 2022, the CSE determined that the student required small group counseling services, adding One 30-minute session per week of small group counseling, while keeping the recommendation for a quarterly counseling consultation (Parent Ex. F at pp. 15, 16).

In addition to the description of the student's social emotional development in the April 2022 IEP,  as noted above, the September 2022 IEP also noted that the student struggled with managing his emotions and was easily overwhelmed and worried, and that, when he became overwhelmed, he would shut down which made it more difficult for him to communicate how he was feeling or to problem solve as his emotions clouded his thinking (Parent Ex. F at p. 11).  The September 2022 IEP noted that the student displayed inattention to social nuances and impulsivity, where he acted without thinking, which could cause interpersonal conflict and limited emotional control and could make him more sensitive to slights (e.g., name calling), criticism, or any interaction that he perceived as negative (id.).  The September 2022 IEP noted those kinds of problems were common in children with ADHD and that the student would need support in building his self-confidence as he tended to give up easily and he perceived himself as incapable in problem solving and weathering difficult emotions and circumstances, as well as navigating academic tasks (id. at pp. 11-12).  The IEP noted the student needed support in thinking flexibly and more openly about receiving academic support, including when such support required being pulled from the classroom to access small group interventions determined necessary by the CSE (id. at p. 12).  As a result of this additional information before the September 2022 CSE, the CSE recommended adding back one 30-minute counseling session per week in a small group as a related service (Parent Ex. F at p. 15).

As noted above in the discussion on goals, the September 2022 IEP added two annual goals to the student's IEP that targeted his ability to demonstrate increased flexibility in thinking about himself as a learner, as evidenced in his ability to identify at least three positive outcomes that result from requesting, receiving and accepting academic support, and to demonstrate improved self-esteem, as evidenced in his ability to name three personal strengths or examples of previous success and at least three ways he could use his strengths to reach goals and academic or social success (Parent Ex. F at p. 14).

Accordingly, the evidence in the hearing record supports that the September 2022 IEP included appropriate social-emotional support for the student that would address his social-emotional needs.  As a result, based on the above findings that the September 2022 CSE recommended appropriate services, supports and annual goals to address the special education needs of the student,  the IHO's determination that the district failed to provide the student with a FAPE for the 2022-23 school year must be reversed.

D. 2023-24 School Year

1. CSE Process – Predetermination

In their cross-appeal, the parents assert that the IHO erred by failing to find predetermination by the district with respect to the CSE's recommendation of a program that "required up to ten pullouts per day, because that was the only way to deliver instruction within the [d]istrict," despite the district’s knowledge that too many pullout sessions were detrimental to the student (Ans. and Cross-App. at p.  9). .[11]  

Concerning the issue of the predetermination of a student’s program by a district. , the consideration of possible recommendations for a student prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting (T.P., 554 F.3d at 253; A.P. 2015 WL 4597545, at *8-*9; see 34 CFR 300.501[b][1], [3]; 8 NYCRR 200.5[d][1], [2]).  The key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP" (T.P., 554 F.3d at 253; see D.D-S., 2011 WL 3919040, at *10-*11; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [E.D.N.Y. 2009], aff'd, 366 Fed. App'x 239 [2d Cir. Feb. 18, 2010]).  Districts may "'prepare reports and come with pre[-]formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions'" (DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18 [S.D.N.Y. Jan. 2, 2013] [alternation in the original], quoting M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 506; [S.D.N.Y. 2008]; see B.K. v. New York City Dep't of Educ., 12 F. Supp. 3d 343, 358-59 [E.D.N.Y. 2014] [holding that "active and meaningful" parent participation undermines a claim of predetermination]).

Initially, a review of the May 2023 CSE meeting information summary reflects that the following individuals attended the May 2023 CSE meeting: the CSE chairperson who was also the director of pupil personnel services, a district school psychologist, a district special education teacher, a district general education teacher, a district occupational therapist, a district speech-language therapist, both parents, a Windward school CSE liaison, a reading specialist, and another special education teacher (see Dist. Exs. 28 at p. 1; 39 at pp. 1-4).  A review of the May 2023 CSE meeting transcript reveals the CSE's discussions, which included input from the Windward CSE liaison as well as the parents (Dist. Ex. 39).

When assessing whether a CSE impermissibly engaged in predetermination, the crux of that analysis focuses on whether the CSE had the requisite open mindedness with regard to the contents of the IEP.  Here, the transcript of the transcripts of the September 2022 and May 2023 CSE meetings documents the parents' participation in the meetings and the robust discussions at both meetings between the CSE members and parents regarding the appropriate program for the student defeats the parents' claim that the May 2023 CSE predetermined the contents of the student's IEP or did not retain the requisite open mind during the CSE meetings (see Dist. Exs. 38; 39).  Specifically, review of the transcripts does not support the parents' contention that the district ignored their concerns by including pullout sessions (id.).  During the September 2022 CSE meeting, the student's mother expressed her concern about how the student perceived being pulled from class as a negative and the district school psychologist explained how the district school the student would be attending out into place a program designed to establish a culture that "everybody gets what they need" so that push-in and pull-out services are "fluid and expected" and the student's perception of it could change (Dist. Ex. 38 at pp. 33-35).  The district school psychologist circled back to this point when discussing flexibility, indicating how they would work on building the student's "receptiveness to think differently about being pulled from class" (id. at pp. 69-70).  Although a review of the May 2023 CSE transcript does not indicate that the parent further raised concerns about the student being pulled out of classes, the CSE addressed the issue once more through the district school psychologist's discussion of how the goal for increasing the student's flexibility was designed to assist the student in thinking differently about his learning needs and accessing needed interventions outside of the classroom (Dist. Ex. 39 at pp. 81-81).

The failure of the CSE to adopt the parent's preferred programming recommendations does not mean that the outcomes of the meeting were predetermined (B.K. v. New York City Dep't of Educ., 12 F. Supp. 3d 343, 359 [E.D.N.Y. 2014]).  There is no indication that the parents or the Windward attendee requested that an out-of-district placement be considered, and the parents do not cite to any evidence that an out-of-district placement was necessary for the student to receive a FAPE.  As a result, the parents' argument that the May 2023 IEP was predetermined must fail.

The same can also be said for the October 2023 CSE.  A review of the October 2023 meeting information summary reflects that the following individuals attended the CSE meeting: the CSE chairperson, a school psychologist, a district special education teacher, a district general education teacher, a district speech-language therapist, both parents, the Windward CSE director, and a reading specialist (see Parent Ex. T at p. 1, Tr. p. 1221).  A further review of the meeting summary of the October 2023 CSE reveals the CSE's discussions, which included input from the Windward attendee as well as the parents (id. at pp. 1-2).  A review of the IEP shows that the October CSE updated the student's annual goals based on the discussions of the CSE members (compare Parent Ex. T at pp. 17-19, with Parent Ex. 28 at pp. 14-15).  As a result, any argument that the October 2023 IEP was predetermined must also fail.

2. May 2023 and October 2023 IEPs

The parents do not cross-appeal the IHO's finding that the district had sufficient evaluative information to make  appropriate recommendations for the 2023-24 school year but rather argue that the IHO erred by finding that the district offered the student a FAPE for the 2023-24 school year because the IEPs developed for the student  failed to identify the student's language-based learning disability, failed to address the student's identified speech needs, failed to offer methodologies based on peer-reviewed research, failed to recommend reading and writing goals and inappropriately recommended 10 pull-put sessions and ICT services.  Accordingly, the IHO’s determination that the district had sufficient evaluative information to make recommendation for the 2023-24 school year is final and binding on the parties and will not be reviewed further on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep’t of Educ., 2013 WL 1314992 at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

The IHO also determined that the district offered the student a FAPE for the 2023-24 school year (IHO Decision at p. 55).

Here, the CSE convened for an annual review on May 10, 2023, determined that the student remained eligible for special education as a student with an other health impairment, and developed an IEP to be implemented beginning September 5, 2023 (Dist. Ex. 28 at p. 1).  According to the May 2023 IEP, the CSE used information from previous testing along with a December 2022 OT evaluation and May 2023 parent input and Windward progress reports to develop the IEP (id. at pp. 1, 3-9; see Dist. Ex. 39).  The school psychologist testified that "[a] Windward representative attended the meeting and gave [the CSE] progress information" that "was largely qualitative" (Tr. p. 410; see Dist. Ex. 39).

The student's present levels of performance identified in the May 2023 IEP included the same neuropsychological information included in the April and September 2022 IEPs (compare Parent Exs. B; F with Dist. Ex. 28).  In addition, the May 2023 IEP also reflected updated information regarding the student's educational performance provided by the parents and Windward School (Dist. Ex. 28 at pp. 9-13).  More specifically, with regard to the student's speech and language, the IEP indicated that the student's oral expression had improved as had "his confidence when engaged with text" (id. at p. 9).  According to the May 2023 IEP, the student "benefit[ted] from support to organize his verbalizations into more grammatically accurate and cohesive forms," and "when struggling with word-finding difficulties" (id.).  The May 2023 IEP indicated that the student demonstrated difficulty with the "identif[ication] [of] the main idea" as well as "accessing the overall content of what he [] read[]" (id.).

According to the May 2023 IEP, in terms of study skills, "Windward report[ed] that [the student] [was] attentive" and "[o]ccasionally[] [] need[ed] a reminder for focus" (Dist. Ex. 28 at p. 10).  The May 2023 IEP stated that, at Windward, the student asked for clarification when required and completed his work "on time" (Dist. Ex. 28 at p. 10).  Turning to reading, the May 2023 IEP described that the student applied learned strategies when he decoded words, but "ha[d] a tendency to guess" at "unfamiliar word[s]" (id.).  The May 2023 IEP also indicated that "[w]hen prompted," the student applied those learned skills and was "accurate when" he did so (id. at p. 10).  According to the May 2023 IEP, as reported by Windward the student demonstrated errors with "multi-syllabic" words "or words with suffixes" and was working with uncommon vowel teams (id.).

In writing, the May 2023 IEP included information from Windward that the student "learned cursive" which allowed him "more control over his letter sizing," but in "print," his handwriting was "somewhat large and immature" (Dist. Ex. 28 at p. 10).  The May 2023 IEP indicated that the student "benefit[ted] from writing words syllable by syllable" and "use[d] visuals . . . of vowel sounds or vowel teams" (id.).  Further, the May 2023 IEP indicated that the student "use[d] visuals to proofread his sentences" and "work[ed] on writing a well thought out paragraph" (id.).  According to the May 2023 IEP, the student required "heav[y] teacher support[]" to write "a two-paragraph piece" and "benefit[ted] from teacher support to edit his work for grammar and syntax" (id.).

With regard to mathematics, the May 2023 IEP cited information from Windward that indicated the student "need[ed] teacher support for multi-step word problems" and was "approaching automaticity with addition facts" (Dist. Ex. 28 at p. 11).  The May 2023 IEP indicated that the student demonstrated "positive interactions with peers and adults" at Windward and participated in class (id. at p. 12).  According to parent input for the May 2023 IEP, the student "no longer" demonstrated "emotional challenges at home" and "they [] s[aw] significant improvement in [the student's] academic self-esteem" (id.).  In terms of physical development, the May 2023 IEP indicated that the student "need[ed] to work on improving graphomotor skills in his handwritten work specific to baseline adherence, sizing, [and] spacing" (id. at p. 13).  The May 2023 IEP included that the student "prefer[red] to use cursive" handwriting and that he "significantly benefit[ted] from visuals incorporated into his classroom work" (id.).

Turning to the student's management needs, the May 2023 IEP identified resources and strategies needed to address the student's "attentional and executive functioning needs" such as "pacing, check[s] for understanding, breaking down tasks containing multiple steps, refocusing/redirection, and preferential seating" (Dist. Ex. 28 at p. 13).  The May 2023 IEP also indicated the student required graphic organizers; editing checklists; "direct instruction in reading, writing, and math;" "support for developing speech and language skills;" and "support with developing fine motor functioning" (id.).

The goals included in the May 2023 IEP addressed the student's ability to learn and demonstrate learning strategies, read words with automaticity, read fluently with accuracy and at an appropriate rate, state the theme of text, create complex sentences, break words into syllables for accurate spelling, write a two paragraph essay, use an editing checklist and spelling resources to review his work independently, solve two-step word problems, recall and re-tell narrative sequences using grammatically correct sentences, "verbalize novel word meaning" and "inferences and predictions," "self-generate a narrative," increase his "flexibility in thinking about himself as a learner," and use "appropriate baseline adherence, spacing, and sizing" in sentences (Dist. Ex. 28 at pp. 14-15).

To address the student's needs, the May 2023 IEP recommended that the student receive three hours per day of ICT services, one 42-minute session every other day of resource room services, one 30-minute session per week of group speech-language therapy, four 42-minute sessions per week of specially designed reading instruction, one 30-minute session per week of group counseling, and one 30-minute session per week of group OT (Dist. Ex. 28 at p. 16).[12]  In addition, the May 2023 IEP recommended pacing, checks for understanding, preferential seating, editing checklists, graphic organizers, support for organizational skills, models and examples, movement breaks, refocusing and redirection, tasks broken down, a positive reinforcement plan, and special paper as program modifications and accommodations (id. at pp. 16-17).  The May 2023 IEP also recommended the student receive three hours per year of assistive technology services in order to conduct an assistive technology evaluation and supports for school personnel on behalf of the student including a quarterly counseling consultation, a 30-minute team meeting twice per year, two 42-minute sessions per month of literacy consultation, and a 30-minute per month speech-language consultation (id. at pp. 17-18).  As recommended in the May 2023 IEP, the student's testing accommodations included on-task focusing prompts, flexibility in setting, checks for understanding, pacing, breaks, and separate location or setting (id. at p. 19).

On May 11, 2023, the parents sent the district a 10-day notice in which they indicated the district denied the student a FAPE and that they "intend[ed] to privately place [the student] at The Windward School" and seek tuition reimbursement/prospective funding from the district (Parent Ex. K).[13]  The student's father testified that "progressively the district [wa]s adding more and more pullouts" to the student's schedule  when the student "shut down" with pullout services (Tr. pp. 1119-20).  The student's father reported that the parents raised their concern at the CSE meeting regarding the number of pullouts but "it was almost as if [they] were getting ignored" (id.).

During the hearing, the neuropsychologist testified that the May 2023 IEP had "the same difficulties and the same challenges" as those she previously identified with the prior IEP including that resource room had too many students and the amount of reading instruction was insufficient (Tr. p. 790).  The neuropsychologist testified that she was "unclear" as to what resource room would offer the student, and that the goals were "better, but still not sufficient" (Tr. pp. 791, 792).  She opined that by recommending a reading comprehension goal, the CSE suggested that comprehension was the student's main problem, which it was not (Tr. p. 793-94).  She further opined that the May 2023 IEP should have been "way more . . . focus[ed] . . . on [developing] basic foundational skills and address[ing] those areas for reading" (Tr. p. 794).  In addition, the neuropsychologist stated that the student's annual goals should be " coming directly from the multi-systemic, [] curriculum that the school pick[ed]" (Tr. p. 794).

The parent testified that they discussed the student's progress at Windward with the May 2023 CSE, and "despite . . . the success . . . there was really not much changing from an IEP perspective" (Tr. p. 1119).  As noted above, student's father's testified that the parents expressed their frustration to the May 2023 CSE regarding the frequency of recommended pullouts but were "ignored" (Tr. pp. 1119-120).  Given this, the student's father testified that the parents submitted their 10-day notice to the district (Tr. p. 1123).

During the May 2023 meeting, the CSE indicated they would "send consent" to the parents for updated neuropsychological and speech-language testing (Dist. Ex. 28 at p. 2).  The parent testified that the district had originally requested this additional testing after receipt of the April 2022 neuropsychological evaluation "to confirm" the results, and that "it took place . . . between July and August of 2023" (Tr. p. 1123).  The student's father testified that the parents proceeded with the recommended testing in August 2023 despite the submission of their 10-day notice (Tr. p. 1124).  The student's father testified that the student "immediately opened up" during the neuropsychological evaluation and shared "that he hated getting pulled out" (Tr. pp. 1126-127).

According to the August 2023 neuropsychological evaluation report, the student was "socially well-adjusted" but "present[ed] with significant internal distress" (Parent Ex. R at p. 28).   The evaluation report noted that, among other things, the student worried about how he was being perceived and feared being embarrassed in front of others (id.).  The evaluation report stated that the student "often f[elt] nervous and overwhelmed by his worrying" and that "he attempt[ed] to control for th[ose] feelings of anxiety by avoiding the situation[] entirely" (id.).  The August 2023 neuropsychological evaluation indicated that the student's "profile remain[ed] consistent with a diagnosis of generalized anxiety disorder" (id.).

Next the August 2023 neuropsychological evaluation report indicated the student demonstrated "deficits in phonemic processing, learning efficiency, and attention consistency" that "influence[d] his acquisition of fundamental reading skills" (Parent Ex. R at p. 28).  The evaluation report also indicated the student had difficulty with the "transfer" of his "thoughts and ideas" into writing (id.).  According to the August 2023 neuropsychological evaluation report, the student's "[s]pelling miscues significantly interfere[d] with the quality of [the student's] written output" and "limitations in his attentional capacity and memory also impact[ed] his ability to recognize the visual form of words" (id.).  The evaluation report indicated that the student's "graphomotor skills" were "variable" and although the student's isolated fine motor skills were intact it was difficult for him to maintain accuracy and fine motor control (id.).  The evaluation report stated that the student's performance substantiated diagnoses of mixed dyslexia and specific learning disorders with impairments in reading and written language (id. at p. 29).

The August 2023 neuropsychological evaluation report recommended the student receive ICT services as they would help the student access grade-level curriculum while providing targeted remediation (Parent Ex. R at p. 30).  The evaluation report further recommended that the student receive "targeted and comprehensive instruction in reading and writing" to improve his academic proficiency and "specialized instruction in reading and writing" that incorporated a multisensory instructional method (id.).  The August 2023 neuropsychological evaluation report also recommended the student continue to receive counseling, OT, and speech-language therapy (id.).  Additionally, the August 2023 neuropsychological evaluation report included recommended testing accommodations and a variety of classroom accommodations and modifications such as previewing text, audio books, and access to a computer (id.).  The evaluation report also included recommendations for home (id. at pp. 30-31).

During the hearing the student's father testified that the parents had a call with the evaluator who conducted the August 2023 neuropsychological evaluation, during which the evaluator indicated that Windward was appropriate for the student (Tr. p. 1128).  The student's father testified that August 2023 neuropsychological evaluation "confirmed everything" in the April 2022 neuropsychological evaluation (Tr. pp. 1128-129).  The student's father stated that, while the evaluator "pointed to Windward" during the phone call, her report recommended ICT services "which [] was a contradiction" (Tr. pp. 1129-130).  During cross-examination, the parent indicated that the evaluator had discussed a recommendation for ICT services during the call (Tr. p. 1172).

The hearing record included a transcript of the phone call between the parents and the August 2023 evaluator (see Parent Ex. JJ).  According to the transcript, when the parents asked the evaluator if "a smaller class size [was] better for him" as opposed to "an ICT class," the evaluator responded that "there [were] probably pros and cons to both" and "that a smaller class innately would allow for less distractibility" (Parent Ex. JJ at p. 4).  The evaluator noted that the student spoke to her about the class size, and opined that "co-teaching could [] address" the student's appreciation for a smaller class size as it provided "smaller groups of instruction for different needs" (id.).  According to the transcript, the evaluator stated that the student's "attention" was "so significant for [the student] because it . . . affect[ed] everything" (id. at p. 5).  According to the transcript, the evaluator stated that "the comprehensive support throughout the day all day [in] co-teacher [was] really beneficial, because [she] saw the impact of the [student's] ADHD across the board" (id. at p. 8).

According to the transcript, the evaluator stated that the student "need[ed] the comprehensive support in the classroom, which [was] why [she] recommended ICT if he were to stay" in the district (Parent Ex. JJ at p. 9).  When the parents asked if the student was "in the right place," the evaluator stated that Windward "use[d] the[] approaches" she recommended in "a smaller setting, which . . . [was] helpful for [the student]" (id. at p. 11).  The evaluator further indicated that because Windward was not a "long-term" placement, she "talk[ed] about other" options, and that going back to the public school was something they could "figure out how" to "do" (id.).  p. 11).

As part of a "[r]equested [r]eview," the CSE met on October 17, 2023 to discuss "updated neuropsychological testing" as well as "reports from [the student's] current school" (Parent Ex. T at p. 1).  The October 2023 CSE meeting information summary indicated that based on the review, "the committee determined refinements to [the student's] current IEP goals were appropriate" and "identified additional program and testing accommodations that [were] added to the current plan" (id.).

According to the October 2023 IEP, the CSE used a July 2023 neuropsychological evaluation and a June 2023 speech-language evaluation to update the IEP (Parent Ex. T at pp. 3-11).[14]  The updated information within the October 2023 IEP indicated that during testing the student "benefitted from refocusing and repetition" and "direct statements asking him to pause in his narrative to allow for the continuation of testing and/or to allow for the listener to ask questions and make comments" id. at p. 11).  The October 2023 IEP also noted that the student "frequently moved in his seat" or "looked around the testing room" (id. at pp. 11-12).  According to the October 2023 IEP, the student demonstrated "receptive and expressive language skills that fell largely within the average range[]" with "[s]cattered weaknesses . . . in the identification of grammatical forms, in the interpretation of some types of figurative language, and in flexibility and the use of embedded context clues for the purposes of determining and verbalizing word meaning" (id. at p. 12).

The October 2023 IEP indicated that the student's "reading achievement and reading-related processes were variable" including difficulty with "processing auditory and phonological information" (Parent Ex. T at p. 12).  The October 2023 IEP indicated that the student benefitted from the use of visual cues, and he had difficulty with his ability to "transfer the necessary sound awareness skills to text" which restricted his reading achievement (id. at pp. 12-13).  According to the October 2023 IEP, "the speed with which [the student] perceive[d] letters and text [was] slow and it t[ook] him a longer period of time to assign a verbal tag to a stimulus, which ultimately l[ed] to inaccurate and dysfluent reading" (id. at p. 13).

To the extent the  parents argue that the ICT services recommended by the district could not provide reading interventions that were sufficient to meet the students reading needs,  both the May 2023 and October 2023 CSEs recommended four 42-minute sessions per week of specially designed reading instruction in a small group which used multi-sensory, research-based reading intervention to support the student’s reading needs (Parent Ex. T at p. 19; Dist. Ex. 28 at p. 16).[15]  Additionally, both CSEs also recommended two sessions per month of literacy consultation as a support for school personnel to support the integration of research-based reading intervention strategies into the classroom setting (Parent Ex. T at p. 19; Dist. Ex. 28 at p. 21).

According to the October 2023 IEP, the student demonstrated difficulty with spelling that impacted his writing, although he did have meaningful and connected thoughts to convey (Parent Ex. T at p. 13).  The October 2023 IEP indicated that the student's "[p]honological processing weaknesses impact[ed] [his] ability to differentiate and combine sounds in words which inhibit[ed] his ability to spell words independently" and further indicated the student had difficulty spelling familiar words accurately both in isolation and connected writing (id.).  In math, the October 2023 IEP indicated that the student was able to solve "multi-step" math problems and that "math [was] an area of strength" (id.).  Updated testing results included in the October 2023 IEP indicated that the student demonstrated strengths in his "vocabulary and acquired knowledge" as well as his "processing speed and [] visual processing" (id. at p. 14).  The October 2023 IEP stated that the student demonstrated weaknesses with his "auditory processing," "short-term working memory," and "long-term retrieval" (id.).  The October 2023 IEP indicated that the student required "more effort and time . . . to assign verbal labels to the images he perceive[d]" (id.).

Again, the parents argue that specific writing instruction should have been recommended in the student’s IEPs for the 2023-24 school year; however, following the same logic as with the prior school year, the evidence supports finding that the student's writing needs could have been addressed with the support of ICT services in the classroom along with related services and the other supports included in the May and October 2023 IEPs.  In addition to the supplementary aids, program modifications, and accommodations of pacing, editing checklists for writing, graphic organizers, models and examples, and special paper, the May 2023 and October 2023 CSEs also recommended that the student receive resource room services in a group of five every other day for 42-minutes (Parent Ex. T at pp. 19-21; Dist. Ex. 28 at pp. 16-17).  According to the school psychologist, not only was resource room included to support the student's study skills and executive functioning, but the resource room was also an opportunity for reteaching, preteaching, and additional supplemental instruction as needed for the student (Tr. p. 425).  The school psychologist explained that the IEP included study skills goals that special education would be targeting and teaching the student such as strategies for organization, strategies for self-monitoring skills, rubrics, editing checklists, seeking and reflecting on teacher feedback, along with a variety of instructional modifications that, specifically, supported the student in utilizing those strategies (Tr. pp. 490-91).

To the extent the parents also argue in the cross-appeal  that there is no evidence that the district could implement the writing program recommended by the private pediatric neuropsychologist who performed the April 2022 evaluation of the student,  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]),  such 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., 885 F.3d 735, 753 [2d Cir. 2018], citing T.S., 10 F.3d 87, 89-90 [2d Cir. 1993]; Watson., 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., 656 F.3d 1057, 1066 n.9 [9th Cir. 2011]; K.E., 647 F.3d 795, 805-06 [8th Cir. 2011]; Evans, 841 F.2d 824, 830 [8th Cir. 1988]; James D., 642 F. Supp. 2d 804, 818 [N.D. Ill. 2009]).  The April 2022 neuropsychological evaluation recommended that the student "be engaged in a structured and strategic program for writing such as the Writing Revolution (The Hochman Method) or Self-Regulated Strategy Development (SRSD)" but did not indicate that a particular writing program had to be recommended for the student in order for the student to receive educational benefits (Parent Ex. C at p. 11).  Additionally, there is evidence that the district school which the student would have attended for the 2023-24 school year used Writing Revolution as a program to assist students with writing and such program would be delivered within a classroom context in a small group (see Tr. p. 634).  The parent also testified that during the May 2023 CSE meeting, the Orton-Gillingham program was mentioned as a potential method for providing specially designed reading instruction, which could also support writing skills (Tr pp. 1120-21).

Along with the goals included in the May 2023 IEP, the October 2023 CSE modified a goal related to the student's reading rate and recommended additional goals that addressed the student's ability to manipulate syllables and sounds, read multi-syllable words correctly, spell multi-syllable words correctly, and spell homophones (compare Dist. Ex. 28 at pp. 14-15 with Parent Ex. T at pp. 17-19).  Both the May 2023 IEP and October 2023 IEP note that the CSE developed goals in the areas of reading, specifically, for decoding, fluency, and comprehension, which has been noted to be a need for students with dyslexia (Parent Ex. T at p. 2; Dist. Ex. 28 at p. 2).

The October 2023 IEP reflected the narrative found in the August 2023 neuropsychological evaluation that the student was "well adjusted" but demonstrated "significant internal distress" (Parent Ex. T at p. 15).  The IEP also noted that the student "attempt[ed] to control [] feelings of anxiety by avoiding [] situations entirely" (id.).  According to the OT evaluation results included in the October 2023 IEP, the student demonstrated "decreased fine motor precision and motor control" and he "d[id] not consistently regard size, space, or orientation to the line" when writing (id.).  Further, the October 2023 IEP indicated that the student "demonstrated below average upper-limb coordination skills with a tennis ball" (id. at p. 16).

Further, the October 2023 IEP added wait time for oral questions and a copy of class notes to the program modifications and accommodations section (compare Dist. Ex. 28 at pp. 16-17 with Parent Ex. T at pp. 19-21).  Finally, the October 2023 IEP added two testing accommodations, including extended time and tests read (compare Dist. Ex. 28 at p. 19 with Parent Ex. T at pp. 22-23).  Again, these annual goals included criteria, methods and a schedule for when and how the student’s progress would be measured for each goal (Parent Ex. T at pp. 17-19).

Regarding methodologies, generally, an IEP is not required to specify the methodologies used with a student and the precise teaching methodologies to be used by a student's teacher are usually a matter to be left to the teacher's discretion—absent evidence that a specific methodology is necessary (Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 [2d Cir. Oct. 29, 2014]; A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 [2d Cir. July 29, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 192-94; M.H., 685 F.3d at 257).  As long as any methodologies referenced in a student's IEP are "appropriate to the [student's] needs," the omission of a particular methodology is not necessarily a procedural violation (R.B., 589 Fed. App'x at 576 [upholding an IEP when there was no evidence that the student "could not make progress with another methodology"], citing 34 CFR 300.39[a][3] and R.E., 694 F.3d at 192-94).  Indeed, a CSE should take care to avoid restricting school district teachers and providers to using only the specific methodologies listed in a student's IEP unless the CSE believes such a restriction is necessary in order to provide the student a FAPE.  However, when the use of a specific methodology is required for a student to receive an educational benefit, the student's IEP should so indicate (see, e.g., R.E., 694 F.3d at 194 [finding an IEP substantively inadequate where there was "clear consensus" that a student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee" of the use of this methodology]).  If the evaluative materials before the CSE recommend a particular methodology, there are no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member (i.e. school psychologist) to rely on a broader approach by leaving the methodological question to the discretion of the teacher implementing the IEP (A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017]).  The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate the "clear consensus" (R.E., 694 F.3d at 194).  Here, the parents do not indicate which methodologies based on peer-reviewed research should have been recommended specifically on the IEPs for the 2023-24 school year to instruct the student, nor do they cite to any evidence in the record to support their argument that certain methodologies were required to offer the student a FAPE.  Additionally, without naming a specific methodology, both the May 2023 and October 2023 IEPs recommended a specially designed  reading program that utilized a multi-sensory, research-based reading intervention and literacy consultation to support integration of research-based reading intervention strategies into the classroom setting (Parent Ex. T at pp. 19, 21; Dist. Ex. 25 at pp. 16, 18).

Based on the May 2023 and October 2023 IEPs, the student was recommended for resource room services every other day to be provided in the resource room; specially designed reading instruction four times per week to be provided in a special location; and speech-language therapy, OT, and counseling each to be provided one time per week in a special location (Parent Ex. T at p. 19; Dist. Ex. 28 at p. 16). [16]  To support the student with respect to the recommended pull-out services, both the May and October 2023 IEPs noted that the student needed support in thinking flexibly about himself as a learner to support his transitions to his intervention and support opportunities, and to identify positive outcomes that result from accessing these supports and interventions; and that support in the area of flexible thinking would also support his adjustment back to a public school environment (Parent Ex. T at p. 15; Dist. Ex. 28 at p. 20).  To address this need, the May and October 2023 CSEs each recommended that the student receive counseling services and developed an annual goal that focused on increasing the student's flexibility in thinking about himself as a learner (Parent Ex. T at pp. 18-19, 21; Dist. Ex. 28 at pp. 15-16, 18).  Additionally, both IEPs recommended as program modifications and support, a positive reinforcement plan to provide praise to the student when he completed tasks independently (Parent Ex. T at p. 21; Dist. Ex. 28 at p. 17).

  According to the transcript of the phone call with the private neuropsychologist who performed the August 2023 neuropsychological evaluation, the private neuropsychologist indicated that the student required instruction that should be provided in a setting other than the classroom and that she would also recommend pullout sessions for the student (Parent Ex. JJ at pp. 9-10, 13).  The evaluator stated "[t]he reason [she] recommend[ed] [] pull[] out" was that she "want[ed] the support for [] reading and spelling to be specialized to" the student (id. at p. 9).  While the evaluator recognized that the student had some difficulty with pull-outs and that there was not a "best way" to do them, she nonetheless also affirmed that she recommended pull out sessions as both appropriate and preferable to the student getting pulled to the back of the classroom in order to receive individualized instruction (id. at pp. 9-10).  Accordingly, the hearing record supports a finding that the recommended pullout sessions, coupled with the counseling support, annual goals. and program modifications, were appropriate recommendations for the student for the 2023-24 school year.

Based on the above, the hearing record supports that both the May and October 2023 IEPs incorporated updated evaluative information and the recommended programs in each IEP addressed the student's identified needs appropriately for the 2023-24 school year.  While the district's program may not have been considered ideal by the parents who may have preferred the program offered at Windward for the student, the hearing record nonetheless supports the IHO's determination that the district met its burden with sufficient evidence to demonstrate that it offered the student with a FAPE for the 2023-24 school year.

VII. Conclusion

Having determined that the evidence in the hearing record supports a finding that the district offered the student a FAPE for the 2022-23 and 2023-24 school years, the necessary inquiry is at an end and there is no need to reach the issues of whether Windward was an appropriate unilateral placement for the 2022-23 and 2023-24 school year or whether equitable considerations weighed in favor of the parents' request for relief.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the portions of the IHO decision dated November 14, 2024 finding that the district failed to offer the student a FAPE for the 2022-23 school year and directed the district to reimburse the parents for Windward for the 2022-23 school year are reversed.