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 respondent's (the parent's) son and ordered it to reimburse the parent for her son's tuition at The Windward School (Windward) for the 2022-23 school year.  The appeal must be sustained.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

At the time of the proceedings, the student was eligible for special education as a student with a learning disability and has received diagnoses of attention deficit hyperactivity disorder (ADHD), dyslexia, and dysgraphia (Parent Ex. B at pp. 1, 2; Dist. Exs. 3 at pp. 5, 6; 4 at pp. 1, 8-9).[1]  During the 2020-21 school year, the student attended first grade at a district elementary school and over three dates in March 2021, a private psychologist conducted an independent neuropsychological evaluation of the student (see Dist. Ex. 3).

The student attended second grade in an 8:1 class at Windward during the 2021-22 school year (Dist. Exs. 4 at p. 1; 6 at p. 1).[2]  On February 20, 2022, the parent entered into an enrollment contract with Windward for the student's attendance for the 2022-23 school year (Parent Ex. F).  It was reflected that the parent understood that her obligation to pay tuition to Windward was unconditional, except that the parent could cancel the enrollment contract by written notice sent prior to July 1, 2022 and forfeit her security deposit (id. at p. 1).  The agreement also indicated that the student's enrollment was not predicated upon the student's receipt of tuition reimbursement from the State or a local authority (id.).  The parent agreed to remit a $5,000 deposit upon signing the agreement, and then pay the remaining tuition of $61,550 on or before May 1, 2022 (id. at p. 3).  In April and May 2022, a pediatric neuropsychologist conducted a neuropsychological evaluation of the student (Dist. Ex. 4).

A subcommittee of the CSE convened on June 7, 2022 for the student's annual review for the 2022-23 school year (Parent Ex. B).[3]^, [4]  After finding that the student remained eligible for special education services as a student with a learning disability, the June 2022 CSE developed an IEP for the student with a projected implementation date of September 1, 2023 (id. at p. 1).  The June 2022 CSE recommended that the student receive one hour and 20 minutes per day of direct consultant teacher services related to reading and writing; one 40-minute session per day of 5:1 special class reading instruction; two 30-minute sessions per week of speech-language therapy in a small group; and one 30-minute session per week of individual occupational therapy (OT) (id. at pp. 1, 16).  In the comments section of the IEP, the district indicated that there was also a teaching assistant in the classroom throughout the instructional day (id. at p.1).  The CSE further recommended that the student have assistive technology in the form of access to a computer daily during instructional time, but it was indicated that the parents felt that the student did not require that service, and that Windward did not use assistive technology (id. at p. 17).

By prior written notice dated June 7, 2022, the district notified the parents of the June 2022 CSE's recommendations for the student's programming for the 2022-23 school year and explained what was reviewed during the June 2022 CSE meeting (Dist. Ex. 6).[5]

By letter, dated August 22, 2022, addressed to the district, the parent asserted that the June 2022 IEP was insufficient to meet the student's educational needs and that it failed to offer the student a free appropriate public education (FAPE) for the 2022-23 school year (Parent Ex. Q).  The parent, weaved within her allegation that the district refused to consider her request for placement of the student at Windward and her private neuropsychologist's recommendation for an 8:1 special class, indicated concerns that the June 2022 IEP did not have appropriate annual goals, appropriate behavioral interventions, that the recommended assistive technology would cause the student to regress, that it was unlikely that the student would receive appropriate instruction in the recommended 5:1 special class setting for reading, and that the parent did not believe that the student would receive appropriate instruction in a general education classroom (id. at p. 1).  The parent informed the district that she would continue to place the student at Windward for the 2022-23 school year and seek tuition reimbursement and transportation services or funding, subject to receiving an appropriate IEP and program recommendation from the district (id. at p. 2).

A. Due Process Complaint Notice

In a due process complaint notice dated October 12, 2023, the parent alleged that the district denied the student a FAPE for the 2022-23 school year, as she disputed the appropriateness and sufficiency of the recommendations in the June 2022 IEP, which she believed would have caused the student to regress (Parent Ex. A).  Among other things, the parent alleged that that the CSE failed to accurately report the student's present levels of performance on the June 2022 IEP by omitting the results of a July 2021 language/literacy evaluation; that the district failed to conduct a functional behavioral assessment (FBA), develop a behavioral intervention plan (BIP) for the student, or otherwise address the student's interfering behaviors; that the CSE failed to recommend appropriate management needs; that the annual goals in the June 2022 IEP were vague and not objectively measurable; that the recommended assistive technology would have been a "crutch" for the student; that the recommendation for a general education class was not appropriate as it would have been too large and distracting for the student; and that the CSE failed to accurately report their recommendations, noting that the comments indicated the support of a "[t]eacher [a]ide" but it was not recommended on the IEP (id. at pp. 3-7).  With respect to reading, the parent contended that the district utilized non-research-based reading supports, that the June 2022 CSE failed to recommend specialized evidence-based individual reading instruction, and that the recommended 40 minutes of reading instruction was not sufficient (id. at pp. 1, 5-6).  The parent also alleged that the CSE denied the parent, and the professionals attending, meaningful participation in the CSE meeting, and that the June 2022 IEP reflected "predetermination" (id. at pp. 6-7).  The parent contended that Windward was an appropriate placement for the student, and that equitable considerations favored her requested relief (id. at p. 7).  The parent sought reimbursement for tuition, expenses, and transportation services for the 2022-23 school year (id.).

B. Impartial Hearing Officer Decision

An impartial hearing convened over the course of four dates on April 2, May 1, September 4, and September 10, 2024 (Tr. pp. 1-456).[6]  The parties each filed written post hearing briefs, dated November 4, 2024 (see IHO Ex. I, II).

In a decision dated December 14, 2024, the IHO found that the district failed to meet its burden of establishing that it offered the student a FAPE for the 2022-23 school year, that the parent met her burden in that she established that the student's unilateral placement at Windward was appropriate, and that equitable considerations favored the parent (IHO Decision at pp. 14-27).  In discussing the June 2022 IEP's recommendations, the IHO indicated that it was "unclear why [the] student would not have been provided with reading [instruction] every day"; that the student's recommended placement in a general education classroom, with consultant teacher services, was not sufficient because it was "unclear" how much attention the student would have received; and because the class environment could have proven to be distracting to the student (id. at pp. 15-16, 18).  The IHO also found that it was not appropriate for the student to continue in the district's reading program, because there was conflicting evidence of past progress using the Wilson reading program with the student and "[t]here [was] no evidence that [the d]istrict even considered using a different reading program" (id. at p. 16).  The IHO further found that there was no evidence that the student had ever made progress in a general education setting, nor was there evidence of the June 2022 CSE considering the transition (or implementing supports for the transition) into a general education setting after attending Windward, especially given the student's difficulties with distraction, that his peers would likely progress at a faster rate than him, and in light of the parent's testimony that the student had previously been "teased" in a general education setting (see id. at pp. 18-20).  Overall, the IHO found that the consultant teacher program would not provide enough support to the student (id. at p. 20).  The IHO indicated that the June 2022 IEP recommendations did not provide the least restrictive environment (LRE) for the student to make progress, and that the district failed to meet its burden in establishing that it offered a FAPE to the student for the 2022-23 school year (see id. at p. 20).[7]

The IHO next addressed the appropriateness of Windward and found that the student made progress relative to himself with the supports provided to him at Windward during the 2022-23 school year and that Windward was reasonably calculated for the student to receive an educational benefit (IHO Decision at pp. 20-25).  In discussing equitable considerations, the IHO found that the hearing record established that the parent participated in CSE meetings and raised her concerns, and that the district, despite not receiving a copy of the May 2022 private neuropsychological evaluation report until the night prior to the June 2022 CSE meeting, implemented certain recommendations from the report in the June 2022 IEP (id. at pp. 26-27).

The IHO ordered the district to reimburse the parent for the student's attendance at Windward for the 2022-23 school year, after evidence of a contract, payment, and student attendance was provided by the parent (IHO Decision at p. 27).

IV. Appeal for State-Level Review

The district appeals, alleging that the IHO erred in finding that the district did not meet its burden in establishing that it offered the student a FAPE for the 2022-23 school year, in finding that Windward was appropriate for the student, and in finding that equitable considerations weighed in favor of the parent.  More specifically, with respect to the district's offer of a FAPE to the student, the district contends, among other things, that the recommendations in the June 2022 IEP were based on several evaluations, progress reports, and test results of the student, and the IHO's findings were not supported by the evidence in the hearing record.  The district further contends that the IHO erred in finding that it was unclear why the student would not have been provided with reading services every day, as daily reading services were recommended in the IEP.  The district asserts that the IHO erred in finding that continuation of the Wilson reading program was not appropriate for the student.  According to the district, the IHO erred in finding that the recommendation for consultant teacher services would not have provided the student with individual attention in reading and that a general education setting would not have addressed the student's issues with distraction, noting that the class had a general education teacher and a teaching assistant in addition to the 80 minutes per day of consultant teacher services.  The district further argues that the IHO disregarded the testimony of three district witnesses who believed that the student required access to mainstream peers in order to be appropriately educated and in finding that the recommended program was not the student's LRE.  Additionally, the district asserts that the IHO erred in determining that there was no evidence the student had ever made progress in a general education setting.[8]

In an answer, the parent contends, among other things, that the recommended special education program in the June 2022 IEP was not appropriate.  The parent further contends that the recommendation of a teaching assistant was not included in the June 2022 IEP, and would not have been provided by the district.  She asserts that although the student was recommended to receive a daily special reading class, the consultant teacher would not have taught reading during the recommended 80-minute consultant teacher services.  The parent contends that the student did not make progress with the Wilson reading method, that the district failed to challenge the IHO's finding that the student required individual attention, and that the student's difficulties with distractibility would have made a general education placement inappropriate, and she also alleges that the IHO correctly noted that the CSE failed to consider the student's transition from Windward to a general education placement when making recommendations in the June 2022 IEP.  The parent further argues that the district failed to properly appeal the IHO's findings on whether the parent met her burden of establishing the appropriateness of Windward and that equitable considerations weighed in the parent's favor.[9]

The district submits a reply, responding to the parent's procedural contentions with respect to the appeal of the appropriateness of Windward and equitable considerations.

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]).[10]

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

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

VI. Discussion

A. Preliminary Matters - Scope of Review

I note that neither party has appealed from the IHO's determination that the annual goals in the June 2022 IEP were appropriate at the time they were formulated. Accordingly, this finding has become final and binding on the parties and will not be further discussed (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]).

Likewise, any matters not addressed by the IHO that have not been presented on appeal, such as the parent's contentions in the due process complaint notice that the June 2022 CSE predetermined its recommendations, that the parent was denied meaningful participation in the June 2022 CSE meeting, that the district and CSE failed to accurately report items on the June 2022 IEP, as well as any other matters left unaddressed by the IHO and not appealed, are hereby deemed abandoned by the parties and will not be further addressed (8 NYCRR 279.8[c][2], [4]).[11]

B. FAPE - June 2022 IEP

The district asserts that the IHO erred in determining that the district failed to meet its burden of establishing that it offered the student a FAPE for the 2022-23 school year, based on the recommendations of the June 2022 CSE.

1. Student Needs

Although not in contention, a review of the student's needs and current functioning will provide the background necessary to evaluate the appropriateness of the June 2022 CSE's recommendations.

According to the June 2022 CSE meeting comments, the pediatric neuropsychologist who had conducted the student's May 2022 private neuropsychological evaluation reviewed her findings and reported that the student "held the diagnosis of ADHD," a learning disability with impairment in written expression (dysgraphia), and both a language disorder and speech-sound disorder "by history" (Parent Ex. B at pp. 1, 2).

The June 2022 IEP included assessment results from the student's evaluations dating back to February 2019, in addition to the most recent information from April 2022 found in the May 2022 private neuropsychological evaluation report (Parent Ex. B at pp. 6-11).  Cognitive testing results remained consistent; administration of  the Wechsler Intelligence Scale for Children, Fifth Edition (WISC-5) to the student in March 2021 yielded a full-scale IQ of 102, and an April 2022 administration of the Comprehensive Test of Nonverbal Intelligence, Second Edition (CTONI-2) to the student yielded a full-scale IQ of 107 (id. at pp. 6, 10).[12]  In a March 2021 administration of the Wechsler Individual Achievement Test, Third Edition (WIAT-III) the student achieved the following standard scores: 96 in mathematics (percentile rank of 39), 83 in pseudoword decoding (percentile rank of 13), 82 in reading (percentile rank of 12), 85 in reading comprehension (percentile rank of 16), 87 in spelling (percentile rank of 19), and 83 in word reading (percentile rank of 13) (id. at pp. 9-10).

The June 2022 IEP included testing results from administrations of the Oral and Written Language Scales – Second Edition (OWLS-II), the Comprehensive Test of Phonological Processing, Second Edition (CTOPP-2), and the Gray Oral Reading Test Fifth Edition (GORT-5) to the student in April 2022 as part of the May 2022 neuropsychological evaluation (Parent Ex. B at pp. 6, 7, 9).  On the OWLS-II, the student achieved a standard score of 72 (percentile rank of three) in reading comprehension and a standard score of 82 (percentile rank of 12) in written expression (id. at p. 7).[13]  Among other results, the student achieved a standard score of 94 (percentile rank of 34) in phonological awareness on the CTOPP-2 (id. at pp. 6-7).

Both the March 2021 and May 2022 neuropsychological evaluations measured the student's reading with the GORT-5 (Parent Ex. B at p. 7, 9).[14]  The March 2021 test results yielded an accuracy subtest percentile rank of nine, which decreased to a percentile rank of two in April 2022 (id.).  The student's fluency subtest percentile rank of nine remained the same across both administrations (id.).  During April 2022 testing, the student's rate subtest percentile rank increased to 16, from a percentile rank of five on the earlier March 2021 administration (id.).  The March 2021 testing also included an additional measure of reading comprehension with the student achieving a percentile rank of 25 (id.).

The June 2022 IEP indicated that Windward used an Orton-Gillingham approach to reading and spelling with the student (Parent Ex. B at p. 12).  The IEP included information from Windward that "[the student], and his class, ha[d] been learning to decode words with blends, suffixes, and two syllables" (id.).  The IEP also reflected that the student worked on building sight vocabulary, irregular words, decoding and fluency, literal and inferential reading comprehension, and that he demonstrated progress in spelling and decoding strategies, and understanding literal information and summarizing, with support (id.).  It was noted, however, that the student needed additional practice in reading fluency (id.).

In the area of mathematics, the June 2022 IEP reported that the student demonstrated progress in skip counting, counting coins, and writing multidigit numbers, and indicated that the student solved basic word problems with assistance and retrieved addition facts with fluency (Parent Ex. B at p. 12).  However, the student demonstrated inconsistency with subtraction facts and needed additional practice in subtracting multidigit numbers (id.).

With respect to writing, the June 2022 IEP reported that, according to the Windward report, the student formed sentences with assistance and "work[ed] with his class on a group paragraph" (Parent Ex. B at p. 12).  It was also indicated that the student used an outline to organize and sequence information, with assistance (id.).

The June 2022 IEP reported, through Windward's CSE liaison who was present at the June 2022 CSE meeting, that, with respect to speech-language skills, the student was inconsistent in identifying and labeling target sounds at the beginning, middle, and end of words (Parent Ex. B at p. 12).  The IEP referenced information from the July 2021 language literacy evaluation, as also reported in the May 2022 neuropsychological evaluation, that reflected delays within the student's phonological skills with consonant blends, r-controlled vowels, vowel diagraphs, and phonemic decoding (id.).  The IEP also reflected a previous speech and language assessment that indicated the student's articulation and phonological abilities were "within the lower limits," and his speech intelligibility fell at 75 percent (id.).

As related to study skills, the June 2022 IEP indicated that the student's attention continued to impact him in school, and "his progress was based on [the student] receiving support and scaffolding" (Parent Ex. B at p. 12).  The student continued to work on learning and completing tasks independently (id.).

The June 2022 IEP reported that the student needed to improve in the following academic, developmental, and functional areas:  decoding and encoding words in isolation; improving answering wh questions about texts; writing using correct capitalization and punctuation; increasing the ability to subtract three-digit numbers; solving one-step addition and subtraction problems; increasing speech intelligibility and discrimination of target sounds; recognizing, discriminating, and producing rhyming words; and demonstrating one-on-one correspondence when reading words by clapping or tapping out each word (Parent Ex. B at p. 12).

In the area of social development, the June 2022 IEP indicated that the student enjoyed playing with animals, video games, and sports as well as being in the company of family and friends (Parent Ex. B at pp. 12-13).  The IEP did not reflect any social needs or concerns expressed by the parent (id. at p. 13).  It did, however, note the student's difficulty with maintaining focus on tasks presented, and the student was described as "a sweet boy, who trie[d] his best" (id.).

With respect to physical development, the June 2022 IEP noted that the student had difficulty with visual motor skills necessary for writing, eye-hand coordination necessary for copying, and maintaining attention to tasks (Parent Ex. B at p. 13).  According to the IEP, the student "require[d] verbal cueing and redirection to assist with maintaining attention to tasks presented" (id.).  It was further reflected that the student needed to improve graphomotor and visual motor skills in order to improve letter and word formation, sizing and spacing, and copying skills, as well as to improve endurance for writing tasks (id.).

2. June 2022 IEP Recommendations

  In determining that the district failed to meet its burden that it offered the student a FAPE for the 2022-23 school year, the IHO made several findings (IHO Decision at pp. 14-20).  Specifically, the IHO determined that the June 2022 CSE recommendation for a general education placement with consultant teacher services was not appropriate as the general education setting "did not properly address [the] [s]tudent's issues with distraction," nor was there evidence that the student had ever made progress in that setting, or that he could access instruction with students learning at a faster rate (id. at pp. 16, 18, 20).  The IHO also found that it was unclear why the consultant teacher program would not have provided the student with daily reading instruction, and, in general, that the consultant teacher program would not have provided the student with sufficient support (id. at pp. 16, 20).  The IHO further found that the recommended reading services were not adequate because there was no evidence that the district considered using a different program, and the IHO found that the continuation of Wilson as the main reading program for the student would not have been appropriate (id. at p. 16).  Finally, the IHO briefly indicated that the June 2022 IEP recommendations did not provide the LRE for the student to make progress (id. at p. 20).[15]

Turning to the recommended program, the June 2022 CSE recommended that, for the 2022-24 school year, the student receive one hour and twenty minutes per day of direct consultant teacher services in the classroom; 40 minutes per day of special class (5:1) reading instruction in the classroom; as well as the related services of two 30-minute sessions per week of small group (3:1) speech-language therapy, and one 30-minute session per week of individual OT (Parent Ex. B at pp. 1, 16).  Additionally, as reflected in the June 2022 CSE meeting comments and the June 2022 prior written notice, there was a teaching assistant in the recommended general education classroom throughout the instructional day (Parent Ex. B at p. 1; Dist. Ex. 6 at p. 1).  The June 2022 IEP comments indicated that the CSE's recommendations were based on the latest evaluations, teacher reports, classroom functioning, parent information, and CSE discussion (Parent Ex. B at p. 1).  The prior written notice reflected that the June 2022 CSE considered the results of a classroom observation, teacher report, and the student's report card, in addition to the private neuropsychological evaluation (Dist. Ex. 6 at p. 2).

a. Consultant Teacher Services

State regulations define consultant teacher services as "direct or indirect services, . . ., provided to a student with a disability in the student's regular education classes and/or to such student's regular education teachers" (8 NYCRR 200.1[m]; see 8 NYCRR 200.6[d]).  State regulation also defines direct consultant teacher services as "specially designed individualized or group instruction provided by a certified special education teacher, . . . , to a student with a disability to aid such student to benefit from the student's regular education classes" (8 NYCRR 200.1[m][1]).

The May 2022 private neuropsychological evaluation recommended that the student receive instruction in a language-based classroom setting with a small student-to-teacher ratio of eight students or less, 1:1 academic support, smaller groups, and explanation of written directions (Dist. Ex. 4 at p. 9).  According to the June 2022 prior written notice, the CSE considered a 12:1+2 district special class with the support of speech-language therapy and OT, based on the recommendation from the May 2022 private neuropsychological evaluation; however, both the district and parent felt that the student's cognitive levels were too high for placement in a special class and that this option would be too restrictive (Dist. Ex. 6 at p. 2).  The prior written notice also reflected the CSE's consideration of supports based on Windward's third quarter report and the private neuropsychological evaluation; however, the CSE determined that the student required additional speech-language support (id.).

During the impartial hearing, the June 2022 CSE chairperson testified that the March 2021 neuropsychological evaluation report included a recommendation for the CSE to consider placing the student in a  co-teaching class (Tr. pp. 26-27; see Dist. Ex. 3 at p. 7).  At the time of that evaluation, the student was receiving resource room and consultant teacher services, each for 40-minutes per day, as well as speech-language therapy in a small group for two sessions per week (Dist. Ex. 3 at p. 1).[16]  The June 2022 CSE recommended consultant teacher services for the student for one hour and twenty minutes per day, with the additional support of 40-minutes per day of a 5:1 special class for reading (Parent Ex. B at pp. 15-16).  The CSE chairperson testified that the consultant teacher services would have been more supportive for the student than the ICT services recommended in the March 2021 neuropsychological report, as the consultant teacher worked only with students who had consultant teacher services on their IEPs rather than with the whole class (Tr. pp. 28-29).  In addition, the school psychologist testified that consultant teacher services would have provided the student with more individualized attention and "more time to work with [the student] rather than other students in the class" (Tr. pp. 96, 106-07).[17]  The district's school psychologist testified that the consultant teacher direct model meant that the student's special education teacher was "solely designated for the students with IEPs in that class and differentiate[d] the curriculum as needed to meet each child's individual needs, as well as to work on their IEP goals," whereas in an ICT services model, the special education teacher had the responsibility for all of the students within the classroom along with the general education teacher, not just students with IEPs (Tr. pp. 106-07).

The district special education teacher, who delivered consultant teacher services, described the consultant teacher model during the 2022-23 school year as 80 minutes per day of push in services into the general education third grade class (Tr. pp. 154, 157, 159).  The consultant teacher testified that, at that time, there were three other students on the special education teacher's "roster" and the student would have been the fourth, and the special education teacher was in the classroom for reading, writing, and mathematics instruction (Tr. pp. 159-60).  She further described the consultant teacher model as an opportunity for the students she worked with to receive the third grade curriculum from the general education teacher, and then she provided the specialized instruction and accommodations so that her assigned students could access the curriculum (Tr. p. 165).[18]

Contrary to the IHO's conclusion that, based upon some evaluative scores in the hearing record, the student would not be able to access the general education curriculum, the recommended consultant teacher services were described as providing support in configurations such as sitting next to a student, "pulling a dyad or pulling other students along," group work, small group instruction and sometimes, although not an everyday occurrence, working one to one if the material warranted (Tr. pp. 165-66).  The consultant teacher testified that the student's IEP annual goals addressed the skills the student needed in order to access the curriculum through the 80-minute per day direct consultant teacher services (Tr. p. 167).  The academic annual goals in the June 2022 IEP included three reading goals that addressed decoding closed syllable words, encoding closed syllable words, and reading and listening to a text and answering questions related to character, setting, and plot (Parent Ex. B at p. 14).  With respect to the annual goal in writing, the IEP identified that the student would use correct capitalization and punctuation in dictated sentences, and with respect to mathematics, the student would compute differences of three-digit whole numbers and solve addition and subtraction word problems (id. at pp. 14-15).  The consultant teacher testified to providing pre-teaching, reteaching, and other supports for writing such as mapping, preplanning pieces, and using sentence starters to build paragraphs, with inferences and details (Tr. pp. 168-70).  She further testified to providing supports in mathematics through the use of manipulatives, visuals, and checklists to complete tasks (id.).

Additionally, the June 2022 CSE chairperson testified that there was both a teacher and a full-time teaching assistant in the student's recommended classroom, with a class size of between 19 and 21 students (Tr. pp. 29, 68).  The parent argues that the assignment of a teaching assistant to the student's recommended class was retrospective, as it was not mandated by the June 2022 IEP; however, in addition to district witness testimony that a teaching assistant was present in the classroom, both the June 2022 IEP and prior written notice noted the presence of a teaching assistant throughout the instructional day (Tr. pp. 29, 69; see Parent Ex. B at p. 1; Dist. Ex. 6 at p. 1).  As both the IEP and the prior written notice explain that the student's class would have included a teaching assistant, the omission of the recommendations from the recommendation section of the IEP does not, in this instance, amount to a denial of a FAPE.  To hold otherwise "would exalt form over substance" (M.H. v. New York City Dep't of Educ., 2011 WL 609880, at *11 [S.D.N.Y. Feb. 16, 2011] [finding an IEP appropriate, notwithstanding that a recommendation was omitted from the IEP because of a clerical error, where the recommendation appeared in the CSE meeting minutes and was reflected in the conduct of the parties]; see Mason v. Carranza, 2023 WL 6201407, at *13 [E.D.N.Y. Sept. 22, 2023], reconsideration denied, 2024 WL 3624058 [E.D.N.Y. Aug. 1, 2024]).[19]

The IHO found that it was "unclear why the student would not have been provided with reading every day" (IHO Decision at p. 15).  It appears, the IHO determined, based on the testimony of the consultant teacher, that the student would have received consultant teacher services for math every day but for reading the student would not have received consultant teacher services every day (id.; see  Tr. pp. 159-60).  The parent also contends that the hearing record was clear that although the student would have a reading class daily, the consultant teacher would not have provided reading instruction daily during her 80 minutes of time in the class, despite that being the student's greatest area of need.  It is worth noting that the student's 80-minutes per day of consultant teacher services were recommended for "Direct Reading & Writing" and not for mathematics; however, the student did have annual goals in the areas of reading, writing, and mathematics (Parent Ex. B at pp. 14-16).  Additionally, the consultant teacher testified that for the 2022-23 school year the consultant teacher services consisted of 80 minutes of pushing into the general education class for reading, writing, and mathematics daily, in addition to the 40-minute special reading class that the student was already recommended to receive (Tr. pp. 159, 162).  The consultant teacher testified that reading and writing instruction was provided daily through a district reading program called "Journeys" that focused on reading comprehension and writing using themed stories and activities, as well as differentiated texts (Tr. p. 160).  The consultant teacher described that reading and writing were addressed during the Journeys program with times when the program "was more reading comprehension based and at times it was more of a . . . writing portion" (id.).  In addition, the consultant teacher explained that she pulled the students who received special class reading instruction out of the general education class for Wilson reading when the general education class received reading instruction through Fundations, which she described as a reading program designed to help struggling readers by breaking down sounds and letters to support decoding (Tr. pp. 159, 161-62).  Accordingly, while the student may not have received daily reading instruction in the general education class, the student would have received daily special class reading instruction and the support of consultant teacher services every day during the district's "Journeys" program, which would have been focused on either reading or writing.

Another aspect that must be examined in this matter is the June 2022 CSE's consideration of the recommendations contained in both the March 2021 neuropsychological report and the May 2022 neuropsychological evaluation report, with the March 2021 report recommending placement in a general education setting with ICT services and the May 2022 neuropsychological evaluation recommending a small class setting of no more than eight students (see Dist. Exs. 3 at pp. 6-7; 4 at p. 9).

While the June 2022 CSE opted to recommend a general education placement with consultant teacher services and special class reading instruction as described above, rather than the more intensive small-class setting recommended in the May 2022 private neuropsychological evaluation, it is important to highlight that the CSE was not obligated to adopt the recommendations of a particular provider (J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, at *11 [S.D.N.Y. Aug. 5, 2013] [holding that "the law does not require an IEP to adopt the particular recommendation of an expert; it only requires that that recommendation be considered in developing  the IEP"]; Watson v. Kingston Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004] [holding that a CSE's recommendation is not necessarily rendered inappropriate by "[t]he mere fact that a separately hired expert has recommended different programming"]).

Further, although the May 2022 private neuropsychologist indicated that a small student-to-teacher ratio of eight or less students, in a language-based class setting, would have been the student's LRE (see Dist. Ex. 4 at p. 9), the private evaluator did not explain why she believed the student would have been unable to learn in a setting that included nondisabled students.[20]  As the private evaluator was not obligated by law or regulation to consider the student's LRE, which emphasizes placing the student in programs that appropriately maximize his or her exposure to nondisabled peers, the evaluator's description of a special class as the student's LRE without further explanation is not helpful to an analysis.  In contrast, in addition to considering what supports and services the student needed in order to receive educational benefits, the district was mandated to consider placing the student with his nondisabled peers in light of the IDEA's LRE requirements.  Where, as here, the student could be educated satisfactorily in a general education classroom with supplemental aids and services, the placements recommended in the June 2022 IEP represented the student's LRE (see T.M., 752 F.3d at 161-67; Newington, 546 F.3d at 119-20).  In any event, as discussed above, the June 2022 CSE was not obligated to adopt the recommendations of one expert.

There is also evidence and testimony in the record that the student would have benefitted from access to non-disabled peers, to the maximum extent appropriate, and that this was considered by the June 2022 CSE when making the recommendations in the June 2022 IEP (Tr. pp. 37, 65-66, 122-124, 134, 179-80).  What's more, the evaluations considered were largely in alignment with the June 2022 CSE's reading recommendations, as they both recommended a daily, multisensory reading program, which is what was ultimately recommended by the CSE (compare Parent Ex. B at pp. 1, 16, with Dist. Ex. 3 at p. 6, and Dist. Ex. 4 at p. 9).[21]  While the June 2022 CSE did not adopt all of the May 2022 private neuropsychological evaluation's recommendations with respect to the type of classroom setting and specific reading instruction delivery, it is clear that both private evaluations were considered, and the district provided testimony regarding the appropriateness of the CSE recommendations, as discussed above.

b. Special Class Reading Instruction & The Wilson Program

The IHO also found that the June 2022 IEP recommendations with respect to reading were inappropriate because "Wilson was not appropriate as the methodology for reading," noting parent testimony that the student did not progress using the Wilson reading program, and also finding that that there was no evidence in the hearing record that the district considered other reading programs (IHO Decision at pp. 16, 20).  In addition to the consultant teacher services discussed above, the June 2022 CSE also recommended one 40-minute period per day of special class reading instruction in a small group (5:1) in the classroom (Parent Ex. B at pp. 1, 16).

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).

The June 2022 CSE chairperson testified that the March 2021 neuropsychological evaluation reflected a recommendation that the student's reading program focus on decoding and encoding that was "performed daily with intensity," and delivered individually or in a very small group with children of similar needs, which was "[a]bsolutely" what the June 2022 CSE recommended in the student's IEP (Tr. pp. 25-26).  In considering potential recommendations for the student for the 2022-23 school year, the CSE chairperson testified that the May 2022 private neuropsychological report contained similar findings to the previous March 2021 neuropsychological report, and that both were reviewed at the June 2022 CSE meeting (Tr. pp. 24, 32).  The CSE chairperson identified that the structured systematic reading program provided to the student would have been the Wilson reading program, and that the special class reading instruction would have been with students in the same grade level with very similar profiles as the student, and that they would all have deficits in areas of decoding, encoding, phonics, phonemic awareness, and vocabulary (Tr. pp. 46-47).[22]

The consultant teacher for the 2022-23 school year testified that the student would have been the fourth student in her group for special class reading instruction, which used the Wilson reading program (Tr. p. 170).  She described the Wilson program as "designed to systematically break down reading and spelling for decoding and encoding to teach the students how to learn the different rules of the English language" and further testified, "[i]t starts with breaking it down to one syllable words, and then it builds upon that to go into multisyllable words" (id.).  She further indicated that the Wilson program provided instruction in fluency, and encoding/spelling following the rules that the students learned (Tr. p. 171).  The consultant teacher testified that the student would have been appropriately placed within this reading group as the student "definitely require[d] similar lessons in reading comprehension, spelling and word reading that would have been addressed in the group" (Tr. pp. 173-74; see Dist. Ex. 11).  Significantly, the private May 2022 neuropsychological evaluation specified the Wilson program as an example of a structured reading program that would provide the needed reading support for the student (Dist. Ex. 4 at p. 9).  Moreover, the neuropsychologist who conducted the student's May 2022 evaluation testified to recommending, among others, the Wilson program as a viable option, as well as monitoring the student's progression through formal assessments such as the "WADE," which she agreed "was Wilson" (Tr. pp. 406-07; Dist. Ex. 4 at p. 9).

With respect to the IHO's findings related to whether the student made progress when previously engaging in the Wilson program with the district, the parent testified that the student did not progress, even with tutoring (Tr. pp. 314, 321).  I note that in summer 2021, the student received two hours of Wilson programming per week over the course of six weeks, and the June 2022 CSE chairperson testified that the student "did very well" during that time, as he started at sub-step 1.1 in the Wilson program, and then progressed to a sub-step 1.4 (Tr. pp. 47-48, 73-75, 82; see Parent Ex. B at p. 3; Dist. Exs. 3 at p. 1; 4 at p. 2).  Thus, there is evidence in the hearing record that the student progressed during the short period he received instruction through the Wilson reading program such that it would not constitute a denial of FAPE for the district to utilize that program with the student as part of his reading instruction.

Additionally, while the IHO found that there was no evidence that the June 2022 CSE considered using a different reading program with the student, the evidence in the hearing record indicates that the student received academic intervention services (AIS) reading support in a group that used the Fundations program during the 2021-22 school year (IHO Decision at p. 16; Dist. Exs. 3 at p. 1; 4 at p. 2).  The June 2022 CSE discussed at the meeting that, despite the student making some progress with AIS, it was recommended that he receive an increase in special education and that he engage with the Wilson program, described as a specialized reading program, moving forward (Tr. pp. 47-48; 74; 82, 148; Parent Ex. B at p. 3; Dist. Exs. 3 at p. 1; 4 at p. 2).

 To the extent that the IHO determined that the student "would not have been provided with reading every day," review of the June 2022 IEP shows that the student was recommended to participate in a special reading class for 40 minutes per day during the 2022-23 school year (IHO Decision at p. 15; Parent Ex. B at pp. 1, 16).  I also find it notable that the Wilson program the student would have received was in accord with May 2022 neuropsychological evaluation recommendations, as discussed above (Dist. Ex. 4 at p. 9).  Thus, I find, for all of the reasons above, that the IHO erred in finding that the recommended reading services and the Wilson program were not appropriate.

c. Management Needs

The IHO found that there was little consideration by the June 2022 CSE regarding the student's ability to transition into a general education placement, and that there was a lack of recommended supports to assist in that transition (IHO Decision at pp. 15-16, 19-20).  The IHO also found that, overall, general education would not properly address the student's issues with distractions (id.).

The June 2022 CSE, in addition to the consultant teacher services and the small special class reading instruction described above, also provided strategies to support the student's management needs (Parent Ex. B at pp. 13).  Those recommendations included: positive reinforcement, verbal and nonverbal; movement breaks throughout the school day; preferential seating with close proximity to instruction and minimal distractions around the student; visual cues and learning aides; supports for organizational skills; refocusing and redirection as well as nonverbal and verbal redirection prompts; teachers to check for the student's understanding regarding task expectations, and questions read during classwork activities (id.).

There is evidence in the hearing record that the June 2022 CSE reviewed both the March 2021 and the May 2022 neuropsychological evaluation reports and "incorporate[d] many of the recommendations [from the May 2022 private neuropsychological evaluator] into [the student's] IEP such as small group size for reading and specific accommodations and modifications throughout the instructional day" (Tr. p. 24; Parent Ex. B at p. 2; compare Parent Ex. B at pp. 1, 16, with Dist. Ex. 4 at pp. 9-10).  The June 2022 CSE identified supports for the student's organizational skills and need for teachers to check in for understanding regarding tasks; likewise, the May 2022 neuropsychological evaluation recommended providing the student supports that included monitoring, review and editing skills, as well as recommending resources to support the student's executive functioning and organizational skills (compare Parent Ex. B at p. 13, with Dist. Ex. 4 at pp. 10-11).  Further, the June 2022 CSE chairperson testified to accommodations and modifications being added to the June 2022 IEP that were consistent with the May 2022 neuropsychological evaluation recommendations, including the accommodation of access to a computer and testing accommodations (Tr. pp. 39-42, 115; see Parent Ex. B at pp. 16-18; Dist. Ex. 4 at p. 9).

Thus, as there is evidence and testimony in the hearing record that the student would have had supports in his proposed general education classroom that were reasonably calculated to address his needs and behaviors, I find that the IHO erred in finding otherwise.

d. Related Services

While the IHO found that the recommended consultant teacher services in a general education classroom was not supportive enough and too distracting for the student, and the special class reading instruction using Wilson "as his main reading program [wa]s inappropriate," the IHO did not examine that the June 2022 CSE also recommended related services including speech-language therapy and OT to target annual goals and areas of need (see Parent Ex. B at pp. 1, 13-16).

An IEP must include a statement of the related services recommended for a student based on such student's specific needs (8 NYCRR 200.6[e]; see 20 U.S.C. § 1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]).  "Related services" is defined by the IDEA as "such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education" (20 U.S.C. § 1401[26][A]; see 34 CFR 300.34[a]; 8 NYCRR 200.1[qq]).

The May 2022 private neuropsychological evaluation recommended that the student receive instruction in decoding and phonemic awareness as part of the multisensory reading instruction.  The June 2022 CSE recommended two 30-minutes sessions per week of speech-language services in a small group (3:1) and speech-language annual goals that targeted improving the student's discrimination of target sounds in initial, medial, and final position of words; ability to recognize, produce and discriminate rhyming words; and correctly identify words in a sentence by clapping or tapping for each word (compare Parent Ex. B at p. 15, with Dist. Ex. 4 at p. 9).  The June 2022 CSE chairperson testified that the speech-language pathologist would target annual goals that addressed phonology and phonetics, with the rhyming goal a prerequisite to reading, and the clapping goal addressing discriminating syllables as a more multisensory approach to decode words (Tr. p. 62).  The CSE chairperson stated, "we wanted the speech and language pathologist to tackle the minute sounds of the English language, and then the reading teacher tackle it from the Wilson reading standpoint" (Tr. pp. 62-63).   Further, the May 2022 private neuropsychological evaluation report indicated that testing the student's writing skills per work sampling "was indicative of significant spelling errors, mechanical errors (i.e. lack of capitalization and punctuation) and some lexical/semantic word errors," with a recommendation to monitor the student's reading, spelling and written expression skills (Dist. Ex. 4 at pp. 8, 9).   Here, in addition to the academic writing goal to improve the student's use of correct capitalization and punctuation in sentences, the June 2022 IEP included two 30-minute sessions per week of individual OT services and three motor goals that addressed the student's need to improve the formation, sizing and spacing of letters and words when writing during therapy sessions; improve copying skills when transcribing words, sentences and drawings during therapy sessions; and improve her ability to accurately transcribe five sentences while maintaining writing on the line during therapy sessions (Parent Ex. B at p. 15).

Overall, the hearing record demonstrates that the June 2022 CSE considered the student's needs, and recommended a program that provided consultant teacher supports, within the general education setting, and identified appropriate management needs and annual goals in addition to recommending a small special reading class and related services to address the student's needs, while maximizing his interactions with non-disabled peers to the extent appropriate.

VII. Conclusion

As a result of the foregoing, the hearing record demonstrates that the June 2022 CSE's recommendations for the 2022-23 school year for the student to receive consultant teacher services, special class reading instruction in a group (5:1), related services, in addition to the identified management needs and annual goals, were reasonably calculated to confer educational benefit and enable the student to make progress in the LRE.  Thus, the IHO's determinations that the district failed to offer the student a FAPE for the 2022-23 school year must be reversed.  I have considered the parties' remaining contentions and find the necessary inquiry is at an end.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that that the IHO's decision dated December 14, 2024, is modified by reversing those portions that found that the district failed to offer the student a FAPE for the 2022-23 school year and ordered the district to reimburse the costs of the student's attendance at Windward for the 2022-23 school year.