I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which, among other things, denied in part her request for compensatory education related to the 2022-23, 2023-24, and 2024-25 school years.  The appeal must be dismissed.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  Similarly, when a preschool student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local Committee on Preschool Special Education (CPSE) that includes, but is not limited to, parents, teachers, an individual who can interpret the instructional implications of evaluation results, and a chairperson that falls within statutory criteria (Educ. Law § 4410; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.1[mm], 200.3, 200.4[d][2], 200.16; see also 34 CFR 300.804).  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 a diagnosis of autism spectrum disorder (ASD) and global developmental delay (Parent Exs. F at p. 1; I at p. 1; J at p. 1).  In June 2020 and later in September 2021, the student was evaluated and recommended for early intervention (EI) services that consisted of physical therapy (PT), special education instruction, occupational therapy (OT), and speech-language therapy (see generally Parent Ex. B).  According to the parent, the student received home-based applied behavior analysis (ABA) services beginning in September 2021 (Oct. 16, 2024 Tr. pp. 33, 35-36).[1]

An undated "final notice of recommendation" indicated that on August 18, 2022, the Committee on Preschool Special Education (CPSE) found the student eligible for special education and related services as a preschool student with a disability and recommended that the student receive 12-month services consisting of an 8:1+2 special class placement and the related services of three 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual OT, and three 30-minute sessions per week of individual PT (IHO Ex. IV at p. 2).  The final notice of recommendation also stated that the student was eligible to begin attending the recommended center-based special education program on January 3, 2023 (id. at p. 3).  The parent later explained that at about the same time the student's EI services ended in December 2022, after which the student began attending Birch Family Services (Birch), described as "a special school with [an] ABA approach" (Oct. 16, 2024 Tr. pp. 39-41).

On August 31, 2023, the CPSE reconvened and continued to find the student eligible for special education and related  services as a preschool student with a disability (see Parent Ex. C).[2]  The August 2023 CPSE recommended 12-month services consisting of a 12:1+3 special class together with one 30-minute session per week of individual speech-language therapy, two 30-minute sessions per week of group speech-language therapy, two 30-minute sessions per week of individual OT, three 30-minute sessions per week of individual PT, and parent counseling and training four times per year (id. at pp. 1, 14-15).  The student remained at Birch for the 2023-24 school year (Oct. 16, 2024 Tr. p. 40).

On March 12, 2024, the CSE convened, determined that the student was eligible for school-aged special education programming as a student with autism, and developed an IEP with a projected implementation date of September 2, 2024 (Parent Ex. F at pp. 1, 15-16, 21).[3]  The March 2024 CSE recommended 12-month services consisting of a 12:1+1 special class placement for math and English language arts (ELA) instruction in a non-specialized district school (id. at pp. 15-17).  The March 2024 CSE also recommended that the student receive one 30-minute session per week of individual OT in a separate location; one 30-minute session per week of individual OT in the classroom; one 30-minute session per week of individual PT; two 30-minute sessions per week of individual speech-language therapy; one 30-minute session per week of group speech-language therapy; and individual, daily paraprofessional services for toileting at a duration of "0.2" (id. at pp. 16-17).

A. Due Process Complaint Notice

In a due process complaint notice dated July 26, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23, 2023-24, and 2024-25 school years (see generally Parent Ex. A).

With regard to the 2022-23 school year, the parent did not challenge any aspect of the student's August 2022 CPSE IEP, rather the parent asserted that the student did not receive the recommended speech-language therapy, OT and PT consistently due to staffing issues at Birch (Parent Ex. A at p. 2).  In connection with the 2023-24 and 2024-25 school years, the parent alleged that the district "procedurally and substantively denied the [s]tudent a FAPE" in and among the following ways: failed to evaluate the student in all areas of need; failed to develop meaningful and measurable annual goals; failed to recommend an appropriate program; failed to recommend ABA services; failed to address the student's sensory needs; failed to recommend paraprofessional services to address the student's behavior; failed to recommend special transportation services, and improperly reduced the student's OT, PT and parent counseling and training; failed to implement OT services during the 2023-24 school year; failed to address the student's behavior needs; and failed to recommend an assistive technology device (id. at pp. 4-5).

As relief, the parent requested a finding that the district denied the student a FAPE for the 2022-23, 2023-24, and 2024-25 school years (Parent Ex. A at p. 5).  Additionally, the parent requested "an immediate interim order" for the district to fund an independent educational evaluation (IEE) including a neuropsychological evaluation, speech-language therapy evaluation, assistive technology evaluation, OT evaluation, PT evaluation, feeding evaluation, ABA skills assessment, functional behavioral assessment (FBA) and, if necessary, develop a behavioral intervention plan (BIP) (id. at pp. 5-6).  The parent also requested that the CSE be directed to convene and recommend an approved nonpublic school or in the alternative, provide funding for a unilateral placement if the parent located a nonpublic school before the impartial hearing began (id. at p. 6).  Additionally, the parent requested an order for the district to fund "home-based ABA services," special education teacher support services (SETSS), "and any additional services necessary to support these home-based services," such as Board Certified Behavior Analyst (BCBA) supervision (id. at p. 6).  The parent sought district funding for compensatory education services including funding for transportation to and from the compensatory services (id.).  The parent requested compensatory education in the areas of speech-language therapy, OT, PT, and ABA services to remedy the district's failure to offer a FAPE to the student (id.).  Lastly, the parent requested that the district fund "an appropriate assistive technology device" for the student (id.).[4]

B. Impartial Hearing Officer Decision

After a prehearing conference on September 4, 2024 (Sept. 4, 2024 Tr. pp. 1-14), an impartial hearing convened before an IHO from the Office of Administrative Trials and Hearings (OATH) on October 16, 2024 (Oct. 16, 2024 Tr. pp. 1-60).  During the prehearing conference, the parent made a motion for interim relief in the form of an IEE, which was denied by the IHO (Sept. 4, 2024 Tr. pp. 5-6; IHO Decision at p. 3; see Parent Ex. K).  On September 13, 2024, the district made a motion to dismiss the parent's claims as impermissible under Education Law § 3602-c arguing that there was a lack of subject matter jurisdiction, which the IHO denied, finding that the motion to dismiss was not relevant to the current matter (IHO Decision at p. 4).

In a decision dated December 26, 2024, the IHO considered the parent's claims separately as allegations of procedural and substantive violations of the IDEA (IHO Decision at pp. 7-15).  The IHO found that the parent's procedural claims did not rise to the level of a denial of a FAPE, and that the parent's claims related to the design of the August 2023 and March 2024 IEPs were without merit (id. at pp. 7-14).  However, the IHO determined that the district failed to implement material aspects of the August 2022 CPSE IEP, the August 2023 CPSE IEP, and the March 2024 CSE IEP, which resulted in a denial of a FAPE to the student for the 2022-23, 2023-24 and 2024-25 school years (id. at pp. 14-15).

With respect to the parent's request for relief in the form of ABA services, the IHO found that the August 2023 IEP did not recommend ABA but did incorporate in the management needs the student's need for structured preschool instruction, small group instruction, positive reinforcement, and a multisensory approach to learning (IHO Decision at p. 13).  The IHO stated that for the 2023-24 school year and "most of" the 2024-25 school year, the district did not deny the student a FAPE when it did not recommend ABA services (id.).  However, the IHO found that when ABA was found to be "medically necessary" based on evaluations from March and September 2024, the "[d]istrict was aware of the need for ABA services" (id.).  Accordingly, the IHO found "that [the s]tudent [wa]s entitled to compensatory services as a part of her program from the March 2024 IEP to the date of th[e] decision" to be offset by those services that the parent obtained through insurance or other means (id. at p. 14).

Turning to the parent's request for an IEE, the IHO determined that the parent had not requested an IEE based on a disagreement with a district evaluation, instead the parent requested evaluations to be conducted by private providers as equitable relief for the alleged denial of FAPE for the 2022-23, 2023-24, and 2024-25 school years (IHO Decision at pp. 16-18).  The IHO found that the parent's request for evaluations was not appropriate relief for a denial of a FAPE based on a failure to implement the IEPs (id. at pp. 17-18).  The IHO determined that "[e]nforcing the IEPs' implementation [wa]s the appropriate remedy where the [d]istrict denied FAPE by failing to implement the IEP" (id. at p. 18).  The IHO agreed that the student was entitled to a comprehensive triennial evaluation, which should include a neuropsychological evaluation that assessed the student in all areas of suspected disability (id. at p. 18).  The IHO opined that the comprehensive triennial evaluation along with the evaluations obtained by the parent and shared with the district for the first time as documentary evidence offered by the parent during the impartial hearing would "provide [the p]arent 'the firepower' to meaningfully participate in [the s]tudent's program development" and that "[f]rom there, the CSE c[ould] make recommendations regarding additional assessments required in the interest of securing FAPE" (id.).

With regard to compensatory education, the IHO concluded that the district denied the student a FAPE for the 2024-25 school year due to a failure to implement portions of the IEP and therefore, the student was entitled to missed services (IHO Decision at p. 18).  The IHO found that the parent was "entitled to an hour per week for a 12-month period for speech[-language therapy], PT and OT" (id. at p. 19).  According to the IHO the compensatory services "afford[ed] one hour of additional support, outside of her in-school mandate, across three days of the week based on [the s]tudent's young age, the length of her regular school day entering Kindergarten, and the number of academic years delayed" (id.).

Next, the IHO discussed the parent's request for prospective placement in a nonpublic school, which the IHO denied, stating that it was the responsibility of the CSE to meet and develop recommendations for the student (IHO Decision at p. 19).  The IHO granted the parent's request for the CSE to reconvene "with the express purpose of prioritizing [the s]tudent's program needs, but denie[d the p]arent's request on the contents of the IEP or placement at [a nonpublic school], pending re-evaluation" (id. at p. 20).

As relief, the IHO ordered the district to implement all components of the student's IEP and to reconvene a CSE to determine an appropriate educational program based on new behavioral data that had been obtained by the parent but not shared with the CSE (IHO Decision at p. 20).  The IHO ordered the district "to fund a bank of compensatory education" to include 52 hours each of speech-language therapy, OT, and PT to be used over a period of two years (id. at p. 21).  Additionally, the district was directed to fund a comprehensive independent neuropsychological evaluation consistent with the requirements for an initial evaluation to include an assessment of the student's behaviors and communication to be conducted by private evaluators of the parent's choosing (id.).  The IHO further ordered the district to conduct a social history, observation of the student, and an assistive technology evaluation (id.).  The IHO directed the parent to provide documentation of a physical examination for consideration by the CSE (id.).  The IHO also directed the CSE to reconvene within 10 days of receiving the parent's independent neuropsychological evaluation and "combine the social history, classroom observation and assistive technology assessment report, to determine an appropriate educational program and related services in accordance with the [s]tudent's programming needs" (id. at p. 22).  Finally, the IHO dismissed without prejudice any other compensatory education requests that were "not specifically programmed" to allow for consideration of the ordered evaluations (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding that the district provided a "procedural FAPE" and that the district recommended an appropriate program, related services and goals despite the district not presenting any evidence.  The parent also argues that the IHO erred in denying compensatory ABA services because the parent obtained two months of ABA services through insurance.  Next, the parent asserts that the IHO erred in failing to consider the parent's claims regarding the district's failure to address the student's behavioral needs and provide assistive technology.  The parent contends that the IHO erred in refusing to grant the parent's requested IEE and erred in dismissing requests for relief without prejudice rather than dismissing claims.  Lastly, the parent alleges that the IHO erred in refusing to order prospective placement in a nonpublic school or school and home-based ABA services.

As relief, the parent requests reversal of those portions of the IHO's decision that found the district offered the student a FAPE on procedural grounds "or with regards to each and every one of the [p]arent's claims."  The parent further requests that the district be ordered to hold a CSE meeting to recommend placement at a nonpublic school that uses ABA instruction and, until such nonpublic school setting is located, that the district be ordered to fund 30 hours per week of push-in ABA services in the student's current public school setting; funding for home-based ABA services for 10 hours per week, with two hours of supervision per month, and one hour of parent counseling and training to be provided by a BCBA; funding for each assessment requested in the parent's demand for an IEE; and for the district to fund 4,200 hours of ABA services, 26.5 hours of parent counseling and training, 52.5 hours of BCBA supervision, 157.5 hours of speech-language therapy, 105 hours of OT, and 52.5 hours of PT delivered by the parent's chosen providers at market rates.

In an answer, the district denies the material allegations contained in the parent's request for review.[5]  The district contends that the IHO correctly found that the district did not deny the student a FAPE on procedural grounds and the parent's arguments to the contrary were conclusory and not supported by the hearing record.  Next, the district claims that the IHO properly found that the district comprehensively evaluated the student.  The district also argues that the IHO correctly found that the changes in the frequency of related services for both school years did not deprive the student of a FAPE; that the student did not require ABA services to receive a FAPE; and that the annual goals with respect to each school year were appropriate.  In connection with the parent's request for an IEE, the district argued that there was no evidence of a "significant FAPE violation" that would have resulted in an award of an IEE as equitable relief.  Moreover, the district contends that the denial of FAPE found by the IHO "was a minimal substantive violation" and the relief granted by the IHO "adequately compensated for this deficiency."  Lastly, the district argues that the evidence in the hearing record does not support the parent's request for compensatory ABA services.

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]).[6]

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

VI. Discussion

A. Preliminary Matters--Scope of Review and Burden of Proof

Before addressing the merits, a determination must be made regarding which claims are properly before me on appeal.  State regulations governing practice before the Office of State Review provide that a request for review "shall clearly specify the reasons for challenging the [IHO's] decision, identify the findings, conclusions, and orders to which exceptions are taken, or the failure or refusal to make a finding, and shall indicate what relief should be granted by the [SRO] to the petitioner" (8 NYCRR 279.4[a]).  Additionally, a request for review must provide a "clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately, and identifying the precise rulings, failures to rule, or refusals to rule presented for review" (8 NYCRR 279.8[c][2] [emphasis added]).  The regulation further states that "any issue not identified in a party's request for review, answer, or answer with cross-appeal shall be deemed abandoned and will not be addressed by a State Review Officer" (8 NYCRR 279.8[c][4]).

First, I noted that the adequacy of the design of the August 2022 IEP was not challenged by the parent in the due process complaint notice, only the failure to deliver all of the services listed therein. The IHO made a large number of discrete determinations regarding whether the district offered a FAPE, many of which were not challenged by the parties (IHO Decision at pp. 8-15).  The district does not cross-appeal from the IHO's finding that it denied the student a FAPE by failing to implement related services of speech-language therapy, OT, and PT for the 2022-23, 2023-24, and 2024-25 school years.  Neither party appeals from the IHO's directive to reconvene a CSE within 10 days "to determine an appropriate educational program and related services in accordance with the [s]tudent's needs based on new behavioral data secured by [the] [p]arent," and for the CSE to reconvene after receipt of the updated evaluative information.  Nor does the district cross-appeal from the IHO's finding that it denied the student a FAPE when it failed to implement the related services of speech-language therapy, OT, and PT for the 2022-23, 2023-24 and 2024-25 school years or the compensatory education ordered by the IHO consisting of 52 hours of speech-language therapy, 52 hours of OT, or 52 hours of PT.[7]  In addition, neither party appeals from the IHO's factual determination that the parent's privately obtained March 19, 2024 ABA reassessment and treatment plan and September 1, 2024 SETSS-ABA assessment were not shared with the district until the parent disclosed the documents as exhibits during the impartial hearing (IHO Decision at pp. 13-14, see  Tr. pp. 32-33, 34-55; Parent Ex. L).  Accordingly, these findings have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

Notwithstanding the IHO's detailed analysis in her decision, the parent's appeal sets forth only two issues (numbered "1" and "3") which relate to the IHO's FAPE determinations.  The remainder of the arguments in the request for review related to the adequacy of the relief ordered by the IHO. The first FAPE-related issue for appeal asserted by the parent alleges that the IHO erred in finding that the district provided a "procedural FAPE" and that the district recommended an appropriate program, related services and goals despite the district not presenting any evidence.  This statement on its own is too broad to meaningfully challenge any of the specific findings rendered by the IHO (see Bd. of Educ. of Harrison Cent. Sch. Dist. v. C.S., 2024 WL 4252499, at *13 [S.D.N.Y. Sept. 20, 2024] [finding that "[m]erely asserting that the IHO" erred in finding that the district did not offer the student a FAPE "does not raise the precise rulings presented for review"]; W.R. v. Katonah Lewisboro Union Free Sch. Dist., 2022 WL 17539699, at *9 [S.D.N.Y. Dec. 7, 2022] [same]).  The use of such broad and conclusory statements or allegations within a request for review does not act to bring into the scope of review any and all findings made by the IHO (see, e.g., M.C., 2018 WL 4997516, at *23 [finding that "the phrase 'procedural inadequacies,' without more, simply does not meet the state's pleading requirement"]).

The parent's first argument regarding the IHO's FAPE determinations essentially distill to the faulty notion that it was impermissible for the IHO to make findings related to the appropriateness of the August 2023 and March 2024 IEPs by relying on documentary evidence in the hearing record that was offered by the parent.  Not so.  The IHO was entitled to draw conclusions from the evidentiary record regardless of which party offered the evidence. The parent further argues that it was improper for the IHO to request documentary evidence related to the student and that in doing so, she "took it upon herself to mount a defense for the district."  The parent contends that the IHO made findings based on documentary evidence that she solicited during the impartial hearing and entered into the hearing record as IHO exhibits.[8]   In this instance, the IHO requested evaluative information to complete the hearing record, and she also relied on the parent's documentary evidence to support her findings (see IHO Decision at pp. 5, 6, 12, 13, 20).  The IHO did not improperly shift the burden to the parent when she requested documents to complete the hearing record, nor was it improper to consider the parent's evidence when considering whether the district met the procedural and substantive requirements of the IDEA. To the contrary, there was no error on the part of the IHO since an IHO has a responsibility to develop a complete and adequate hearing record, containing information that is relevant to the matters at issue (see 8 NYCRR 200.5[j][3][vii]). The parent's argument is without merit.

Within the parent's first argument, the parent alleges that if the district had properly evaluated the student, the CSE would have been aware of the student's needs, which included the student's need for ABA instruction.  The evaluative information before each CSE is further discussed below.  However, the parent then argues that the IHO noted in her decision "that once the [p]arent determined that ABA …was medically necessary, that then the [d]istrict had an obligation to provide ABA, further shifting the burden onto the [p]arent to determine [the student]'s needs" (Req. for Rev. at p. 5).  This argument misrepresents the IHO's findings.  The IHO instead stated that "subsequent to this [due process] complaint [notice,] the [d]istrict was aware of the need for ABA services" and that "there [wa]s no proof that [the p]arent communicated these assessments with the [d]istrict" (IHO Decision at pp. 13-14).  The parent did not otherwise appeal from the IHO's finding that the omission of ABA services from the student's programming in the IEPs was not a denial of a FAPE for the 2023-24 and 2024-25 school years.

Turning to the parent's second argument that challenges the IHO's substantive findings related to FAPE, the parent alleges that the IHO erred in failing to consider the parent's claims regarding the district's failure to address the student's behavioral needs and provide assistive technology.  This issue for appeal is also not sufficient to bring into the scope of review all of the IHO's discrete findings underlying her determination that the parent's IEP design claims were without merit, and it is not this SRO's role to research and construct the appealing party's arguments or guess what they may have intended (see, e.g., Gross v. Town of Cicero, Ill., 619 F.3d 697, 704 [7th Cir. 2010] [appellate review does not include researching and constructing the parties' arguments]; Fera v. Baldwin Borough, 2009 WL 3634098, at *3 [3rd Cir. Nov. 4, 2009] [a party on appeal should at least identify the factual issues in dispute]; Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 [10th Cir. 2005] [generalized assertion of error on appeal is not sufficient]; see generally, Taylor v. Am. Chemistry Council, 576 F.3d 16, 32 n.16 [1st Cir. 2009]; Lance v. Adams, 2011 WL 1813061, at *2 [E.D.Cal. May 6, 2011] [the tribunal need not guess at the parties' intended claims]; Bill Salter Advertising, Inc. v. City of Brewton, AL, 2007 WL 2409819, at *4 n.3 [S.D.Ala. Aug. 23, 2007]).

Based on the foregoing, the parent did not appeal several of the IHO's specific findings relating to the August 2023 CPSE and IEP and the March 2024 CSE and IEP.  The IHO determined that the hearing record "reveal[ed] a substantively sufficient IEP with alignment between [the s]tudent's needs, goals, and services," and that the student demonstrated progress (IHO Decision at p. 11).  The IHO found that the documents in the hearing record offered "a detailed[,] cogent and responsive explanation for its program choices overall" (id. at p. 13).    With respect to the parent's claims for ABA services, the IHO found that the August 2023 IEP did not recommend ABA but did incorporate in the management needs the student's need for structured preschool instruction, small group instruction, positive reinforcement, and a multisensory approach to learning (IHO Decision at p. 13).  The IHO stated that for the 2023-24 school year and "most of" the 2024-25 school year, the district did not deny the student a FAPE when the IEP did not recommend ABA services (id.).  As these specific determinations were not appealed, they have also become final and binding upon the parties (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]).

With respect to the relief ordered by the IHO, the parent asserts that the IHO should have awarded compensatory ABA services as a form of relief because the parent obtained two months of ABA services through insurance and, further, that the IHO erred in refusing to order prospective placement in a nonpublic school or school and home-based ABA services.[9]  But neither of these allegations can be reasonably read as allegations that the IHO's  should have determined that the district failed to offer a FAPE due to a failure of the CSE to specify ABA services on the August 2023 or March 2024 IEPs.  Even under a generous reading of the request for review, these issues for appeal clearly relate to the adequacy of the equitable relief ordered by the IHO.  I have independently reviewed the hearing record and as discussed more fully below, I find that the evidence in the hearing record demonstrates that the August 2023 IEP and the March 2024 IEP, at the time each one was written, were reasonably calculated to enable the student to receive educational benefits in light of her circumstances.[10]  Nevertheless, the IHO's determination that the district failed to implement the IEPs was not cross-appealed by the district and, therefore, the scope of relief ordered by the IHO is further discussed below.

B. FAPE 2023-24 School Year

1. August 2023 CPSE -Sufficiency of Evaluative Information

The IHO found that the district evaluated the student in all areas of suspected disability and used available assessments to determine the student's needs and develop annual goals (IHO Decision at pp. 10-11).  The hearing record supports the IHO's determination that the district had sufficient evaluative information available at the August 2023 CPSE meeting to develop the student's IEP for the 2023-24 school year (IHO Decision at pp. 8-10; Parent Exs. C at pp. 2-5; D at p. 1; IHO Ex. I at pp. 1, 3, 10).

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]).

The August 2023 CPSE IEP incorporated evaluative information attributed to the student's classroom teacher, which was described as an informal assessment using "Brigance" to assess the student's cognitive, social/emotional, adaptive behavior, fine motor, and gross motor skills (Parent Ex. C at p. 3).[11]  The student's approximate domain age equivalent ranges as reflected in the IEP were as follows:  cognitive (24-28 months), social/emotional (20-24 months), adaptive behavior (12-15 months), gross motor (20-23 months), and fine motor (20-22 months) (id. at pp. 1, 3).[12]  The student matched and identified shapes, matched colors, and when provided verbal prompting the student pointed and named colors, named peers and teachers, and was happy at school but needed to improve attention and task completion (id. at pp. 3-4).

Results of "ongoing informal assessment and clinical opinion" reflected in the August 2023 IEP indicated that the student "present[ed] with significantly delayed communication skills" (Parent Ex. C at p. 3).  The IEP reflected that the student's receptive language skills fell within the age equivalent range of 24-28 months and her expressive language skills were reported to be within the 18-24 months range, which reportedly represented more than a 33 percent delay in communication skills (id.).  According to the August 2023 IEP, the student communicated using gestures, single word utterances, and unintelligible vocalizations (id. at p. 4).  When provided with sufficient support and modeling, the student communicated her wants and needs, requested desired items, and used social greetings (id.).

In the area of OT, the August 2023 IEP stated that the student's fine motor skills were poor, with a reported standard score of 73 on an administration of the Peabody Developmental Motor Scales-Second Edition (PDMS-2) (Parent Ex. C at p. 3).  The student held a marker with a static tripod three finger grasp but moved her arms rather than her fingers to scribble on paper (id. at p. 5).  The student snipped paper with scissors but did not imitate horizontal and vertical lines, a cross or a circle (id.).  The student struggled with tasks like buttoning and drawing but enjoyed coloring (id. at pp. 5, 6).  In the area of PT, the August 2023 IEP reflected that the student exhibited "very poor gross motor skills given her chronological age of 46 months," obtaining a standard score of 68 (first percentile) on the PDMS-2 (id. at p. 3).  The student had difficulty with complex movements but enjoyed activities like dancing and tricycle riding (id. at pp. 5, 6).

In terms of behavior, the August 2023 IEP indicated that the student was "self-directed" and reflected concerns about the students' attention, focus, and safety awareness (Parent Ex. C at pp. 4, 5, 6).  The August 2023 IEP indicated the student did not need strategies, including positive behavioral interventions, supports and other strategies, including a behavioral intervention plan, to address behaviors that impeded the student's learning or that of others because she successfully participated in a school-wide positive behavioral interventions and supports (PBIS) program (id. at p. 7).[13]  The August 2023 CPSE identified supports to address the student's management needs, including "structured preschool instruction, small group learning, positive reinforcement," a multisensory approach, visual supports, repetition, refocusing, redirection, and close adult supervision to support her learning and attention (id. at p. 6).

As detailed above, the present levels of educational performance included in the August 2023 CPSE IEP shows that the district had sufficient information both from testing and the input of her teachers and providers regarding the student's learning style, academic performance, and functional abilities to develop an appropriate educational program for the student.  There is no evidence in the hearing record that the CPSE determined that there were any areas of the student's disability for which it did not have adequate evaluative material, and the parent has not identified any specific deficiencies in the evaluative information available to the August 2023 CPSE.  Accordingly, I find insufficient basis to disturb the IHO's finding that the district relied upon sufficient evaluative information to develop the August 2023 IEP.

2. August 2023 IEP

The IHO found that the student made progress, and the district developed "meaningful and measurable annual goals that [the] [s]tudent achieved" (IHO Decision at p. 14).[14]  While the parent has only sufficiently raised the issue of whether or not the student's behavioral needs were met, I nevertheless consider that question in the context of whether the recommendations on the August 2023 IEP addressed the student's needs overall and thus whether at the time it was written it was reasonably calculated to enable the student to receive educational benefits in light of the student's circumstances.

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]).

Initially, review of the student's August 2023 IEP shows that the CSE developed approximately 14 annual goals, together with corresponding short-term objectives, to improve the student's coordination and gross motor skills, eye hand coordination and dexterity, sensory integration and body awareness, receptive and expressive vocabulary, play, focus, personal care, peer relationship, communication, and letter, shape, and color knowledge, skills aligned with the student's needs described in the IEP present levels of performance (see Parent Ex. C at pp. 3-6, 8-13).

A review of the present levels of performance and the goals shows that the goal to have the student identify and name colors included two additional colors she had not yet mastered, to point and name colors without prompting and included the skill to sort objects by color (compare Parent Ex. C at p. 3, with Parent Ex. C at p. 13).  Additionally, the annual goal and short-term objectives for the student to match shapes, point and name shapes, name shapes regardless of size, and sort shapes included additional shapes she had not mastered and included the skill to sort shapes (id.).  As such, review of the annual goals in the student's August 2023 IEP shows that they addressed the needs identified and are not a basis to disturb the IHO's finding.

The August 2023 CPSE recommended that the student receive 12-month services that included a 12:1+3 special class placement, one 30-minute session per week of individual speech-language therapy, two 30-minute sessions of speech-language therapy in a group of two, two 30-minute sessions of individual OT, and three 30-minute sessions of individual PT, and that the parent be provided with four sessions per year of parent counseling and training (Parent Ex. C at pp. 1, 14-15).  Additionally, as noted above, supports for the student's management needs the CPSE identified included "structured preschool instruction, small group learning, positive reinforcement," a multisensory approach, visual supports, repetition, refocusing, redirection, and close adult supervision to support her learning and attention (id. at p. 6).

To address the student's difficulty with attention, the August 2023 IEP identified that the student needed an individual schedule, positive reinforcement, a multisensory approach, visual supports, repetition, refocusing, redirection, and close adult supervision to support her learning and attention (Parent Ex. C at pp. 4-6).  As described above, there were no reports that the student exhibited behavioral difficulties beyond self-direction and decreased attention skills (Parent Exs. C at pp. 3-7).  Thus, there were no significant behavioral needs that went unaddressed by the August 2023 IEP.

Instead, within the August 2023 IEP, the CPSE provided justification for its recommendations stating that "[p]roviding [the student] with a smaller teacher to student ratio," the related services of speech-language therapy, OT, PT, and parent counseling and training, and inclusion of the management needs, "w[ould] enable [the student] to learn and retain age appropriate concepts," develop her social and expressive language skills, enable her to focus on and complete meaningful student work, and "participate in active play and motor play at the pace of her classmates while safely navigating her school environment" (id. at p. 6).

Review of the evidence in the hearing record supports the IHO's determination that the August 2023 CPSE IEP provided the student with appropriate supports and services and was reasonably calculated to enable her to receive educational benefits.

C. FAPE 2024-25 School Year

1. March 2024 CSE-Sufficiency of Evaluative Information

According to the IEP, the March 2024 CSE considered a February 6, 2024 psychological update, a February 6, 2024 classroom observation, a July 20, 2023 educational progress report, and a social history update, as well as previously reported evaluation data (Parent Ex. F at pp. 1-6; see Parent Ex. D at pp. 1-2; IHO Ex. I at pp. 1-11).[15]  The March 2024 IEP indicated that the student's cognitive and academic skills were assessed using the Stanford-Binet Intelligence Scales, Fifth Edition (SB-5) and Kaufman Test of Educational Achievement, Third Edition (KTEA-3) (Parent Ex. F at p. 3).  The March 2024 CSE also considered a "physical examination form" (Parent Ex. F at p. 5; see IHO Ex. VI).  The March 2024 IEP frequently referenced the social history update interview when developing the student's present levels of performance (Parent Ex. F at pp. 2, 3-6).

The February 2024 psychoeducational evaluation found "mildly impaired" cognitive abilities with the student obtaining a full-scale IQ of 63, with relative strengths falling within the "borderline impaired" range for knowledge, quantitative reasoning, and working memory (Parent Ex. F at p. 1; IHO Ex. I at pp. 1, 3, 10).  According to the March 2024 IEP, the student's academic skills fell within the average range for letter and word recognition, the below average range for math concepts and applications, and the low range for reading comprehension (Parent Ex. F at p. 2).  The student was unable to complete the math computation or written expression subtests (id.).  The student identified most letters presented, struggled with letter sounds, had emerging phonemic awareness, counted within five using pictures and manipulatives, and was unable to write her name, requiring support to write some letters and numerals (id. at p. 3).

The February 2024 classroom observation revealed the student waived hello to the observer, made eye contact several times, interacted with peers during circle time, named basic colors when asked, but did not name shapes instead responding "shape" or "toy" (Parent Ex. D at p. 1).  The student spoke  mainly using one-word responses with unclear articulation (id.).  The student followed one-step directions, followed prompts, drank from an open cup independently, and threw the cup away when finished, but also exhibited self-directed behavior such as refusing to walk up the stairs when transitioning to the classroom (id.).

Teacher report reflected in the March 2024 IEP indicated that the student identified "most letters ABCs," matched colors and shapes, identified common objects and animals presented in pictures, and mainly pointed to pictures when responding to a question, additionally, the March 2024 IEP indicated that the student named basic body parts (Parent Ex. F at pp. 2, 3).  The student was not able to write her name but was able to scribble (id. at p. 3).  According to the teacher, the student tried to verbalize but had difficulty articulating her responses and asking for help (id.).  The teacher reported the student was easily distracted and required prompting and redirection throughout the day (id.).  Regarding receptive language skills, the student followed one step directions and at the time, was starting to follow two-step commands (id.).  The March 2024 IEP reflected teacher report that the student understood directions and information provided to her but had difficulty expressing herself verbally (id.).  The student communicated mainly in one-to-two-word utterances or by pointing and gesturing (id.).

Physically, the March 2024 IEP indicated the student played with gymnasium equipment, ascended and descended stairs alternating feet using the handrail, and transitioned from one setting to the next (Parent Ex. F at pp. 5-6).  Parent report reflected in the March 2024 IEP indicated that the student was "only able to 'walk fast' and c[ould not] run," and that she was not able to jump (id. at p. 6).  The student required PT to address deficits in gross motor skills and balance and coordination (id. at p. 5).  The March 2024 IEP reflected parent report that the student exhibited an appropriate pencil grasp, and that she was able to trace, draw a straight line, circle, and a simple picture, and she wrote some letters of the alphabet (id. at p. 6).  Regarding daily living skills, the parent reported that the student dressed herself with assistance, fed herself and drank from an open cup and straw, and recently had received feeding therapy (id.).[16]  The March 2024 IEP stated the student required OT to address deficits in fine motor, graphomotor, and independent skills (id. at p. 5).  Through the social history update interview, the parent reported the student "exhibited sensory issues common to individuals with autism, including fidgeting and "stim[ming]," did well in noisy environments such as being on an airplane or in a crowd, but did not like spontaneous noises such as the ripping of Velcro (id. at p. 4).

In connection with the student's behavior, the March 2024 IEP indicated the student did not demonstrate any aggressive behaviors (Parent Ex. F at p. 4).  The student was reported to be easily distracted, and her attention fluctuated requiring redirection and refocusing (id. at pp. 3-4).  Further, the March 2024 CSE did not recommend the use of any strategies, the need for positive behavioral interventions, or a behavioral intervention plan to address any maladaptive behaviors impeding her learning or that of others (id. at p. 7).   The March 2024 IEP did not include goals to address behavior other than a speech-language therapy goal which included "remain focused" when working on conversational skills (id. at p. 12).  Moreover, the parent testified that she requested an individual paraprofessional for the student at the March 2024 CSE meeting, but the CSE did not make the recommendation because the student did not demonstrate aggressive behavior (Oct. 16, 2024 Tr. p. 55).

As detailed above, the present levels of educational performance included in the March 2024 CSE IEP show that the district had sufficient information to develop an appropriate educational program for the student, and does not provide a basis to disturb the IHO's finding regarding the evaluative information available to the March 2024 CSE.

2. March 2024 IEP

The parent argues that the IHO did not address the student's behaviors.  However, the IHO specifically found that the August 2023 and March 2024 IEPs acknowledged the student's behaviors but "neither the record nor testimony support[ed] allegations that the behaviors increased in frequency to the point where [the] [s]tudent was not able to access the curriculum" (IHO Decision at p. 12).  Review of the hearing record supports the IHO's determination that the student was offered a FAPE for the 2024-25 school year.

The March 2024 IEP stated that the student required small group instruction with picture cues, repetition, prompting, and one-step directions for her to complete tasks and participate in activities in the classroom (Parent Ex. F at p. 6). [17]  There were no significant behavioral concerns reported in the student's March 2024 IEP (see Parent Ex. F).[18]  In addition, the hearing record is devoid of any evidence of communication between the privately obtained ABA services at home and the student's school providers.  Thus, there is no evidence in the hearing record demonstrating how the home-based ABA services supported her functioning in the classroom.

Academically, the March 2024 IEP included an annual goal to increase the student's reading readiness skills by recognizing and naming all uppercase and lowercase letters with 80 percent accuracy in four out of five trials over a six-week period (Parent Ex. F at p. 8).  However, according to the March 2024 IEP present levels of academic performance provided by the student's teacher and school psychologist, the student identified "most" letters of the alphabet, indicating that the student had not mastered identifying all letters, and review of the IEP shows that there were additional annual goals that addressed the student's reading readiness skills beyond letter identification (id. at p. 3).[19]  For example, another reading annual goal required the student to identify letter-sound correspondence by producing the sounds of each letter when presented with the letters of the alphabet in print with 80 percent accuracy in four out of five trials over a six-week period (id. at p. 9).  A third reading annual goal required the student to identify the sequence of at least three events, "by pointing and in verbal form" after hearing a story read aloud to her with 80 percent accuracy in four out of five trials over a six-week period (id.).

The March 2024 IEP also included three speech-language annual goals to address the student's needs in the areas of pragmatic language skills, receptive and expressive vocabulary, and to improve her auditory processing, auditory comprehension and expressive language skills (Parent Ex. F at pp. 12-13).  The speech-language annual goal to improve receptive and expressive vocabulary by being able to identify and label shapes, colors, and items was similar to goals the special education teacher set forth for the student to work on in the 2023-24 school year by (compare Parent Ex. F at pp. 12-13, with Parent Ex. C at pp. 12, 13).  The speech-language annual goal developed for the March 2024 IEP to address the student's receptive and expressive vocabulary skills required the student to demonstrate improvement by identifying and labeling 8 basic shapes, 11 colors and 20 or more items of animals, food and clothing (Parent Ex. F at pp. 12-13).  The annual goal further required the student to be able to identify the same items when given a verbal description of each (id. at p. 13).  According to the February 2024 classroom observation, the student was playing by herself pushing a board with counters and shapes of different colors (Parent Ex. D at p. 1).  The observer asked the student to name the colors of "counters/shapes" (id.).  The student reportedly was able to identify basic colors but "then said, 'toy and []shapes,'" suggesting that she had not yet mastered this goal (id.).  The observer also noted that the student's articulation was unclear, that she mainly gave one-word responses, and did not speak in sentences (id.).[20]

Furthermore, when comparing the August 2023 IEP academic goals to the March 2024 IEP academic goals, the March 2024 goals are consistent with the next developmental sequence in learning for letter knowledge (compare Parent Ex. C at pp. 8-13, with Parent Ex. F at pp. 8-13).[21]  In the August 2023 IEP, the student's academic goals were to demonstrate the understanding of the organization and basic features of print (match and identify capital letters and lowercase letters), demonstrate an understanding of geometry (match shapes independently, point and name shapes desired by the teacher, correctly name shapes regardless of size, sort shapes), identify and name colors (match colors independently, point to colors desired by the teacher, and name colors desired by the teacher, sort 2-3 colors independently) (Parent Ex. C at pp. 12-13).  The March 2024 IEP demonstrates that the CSE developed more challenging academic goals requiring the student to recognize and name all upper- and lowercase letters, identify letter-sound correspondence by producing the sounds of the letter, identify and sequence three events from a story read aloud, and identify and trace/write numerals 1-10 (Parent Ex. F at pp. 8-10).  As described above, the March 2024 CSE also developed a math annual goal requiring the student to identify, trace and write numerals 1-10 (Parent Ex. F at p. 10).  This annual goal was not previously developed in the August 2023 IEP and aligns with skills the student will need in the development of numeracy (Parent Ex. C at pp. 8-13).

The March 2024 IEP stated the student had "progressed in her cognitive, language, and social skills and w[ould] benefit from a lesser restrictive environment with language and play modeling from her classmates" (Parent Ex. F at p. 2).  During the March 2024 CSE meeting, the parent and preschool teacher discussed that during the 2023-24 school year the student had made significant progress since she started preschool moving "from a class with [a] ratio of 8:1+2 to a bigger class" with a 12:1+3 ratio (id. at p. 4).  The student knew how to do most routine tasks independently and was able to follow one-to-two step commands (id.).  Additionally, the March 2024 IEP identified strategies to support the student's learning including small group instruction, picture cues, modeling, repetition, prompting (both verbal and gestural), and one-step directions in order for her to complete tasks and participate in activities within the classroom (id. at p. 6).  The March 2024 IEP stated the parents and school team agreed that the student would benefit from receiving instruction in a small special class (12:1+1) for kindergarten, along with two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of speech-language therapy in a group of two, one 30-minute session per week of individual OT delivered in a separate location, one 30-minute session per week of individual OT delivered in the classroom, one 30-minute session per week of individual PT, and paraprofessional services for toileting at a duration of "0.2" in a district non-specialized school (id. at pp. 4, 15-17, 20).[22]

The IHO found that the parent's claims in the due process complaint notice about the reduction of related services from the August 2023 IEP to the March 2024 IEP were inaccurate (IHO Decision at p. 12).  Further, the IHO found that the district did not reduce speech-language services but rather changed the delivery of services to a split between group and individual therapy (id. at pp. 12-13).  The speech-language therapy changed from one individual session and two group sessions per week on the August 2023 IEP to two individual sessions and one group session per week on the March 2024 IEP, which was not a reduction in service (compare Parent Ex. C at pp. 1, 14, with Parent Ex. F at p. 16).

Regarding PT services, the hearing record revealed that PT services were reduced from three 30-minute individual sessions per week during the 2023-24 school year to one 30-minute individual session per week during the 2024-25 school year (compare Parent Ex.  C at pp. 1, 14, with Parent Ex. F at p. 16).  In terms of the student's physical development as reported in the August 2023 IEP, the student had "gross motor delays" that needed to be addressed for her to attain the skills for school activities and safety (Parent Ex. C at p. 6).  She was able to ascend stairs "using step-over-step manner" for 8-14 steps and descend stairs using the same method for only two steps with prompts (id.).  However, it was reported in the March 2024 IEP that the student was able to go up and down stairs without adult support (Parent Ex. F at pp. 5-6).  Additionally, the parent reported no gross motor concerns during the March 2024 CSE meeting (id. at p. 6).  Accordingly, although the rationale for the decrease in the frequency of PT was not specifically noted in the March 2024 IEP, there were noted improvements in the student's gross motor skills to support the decrease in PT services (id. at pp. 5-6).  Regarding OT services, review of the August 2023 and March 2024 IEPs show a recommendation of two 30-minute individual sessions per week (compare Parent Ex. C at p. 1, 14, with Parent Ex. F at p. 16).  The feature of OT that changed between the two IEPs was the language describing the location where the student's OT would be delivered, which did not result in a functional change in location; the August 2023 IEP denotes that one session will be "[p]ush in" and one session will be "[p]ull [o]ut," and the March 2024 IEP denotes that one session will be in the classroom (push-in) and one session will be in a separate location/therapy room (pull-out) (compare Parent Ex. C at p. 1, 14, with Parent Ex. F at p. 16).

            While the district has not cross-appealed from the IHO's determination that it failed to implement the student's related services, the recommendations contained in the August 2023 and March 2024 IEPs including the annual goals and a special class with related services, were reasonably calculated to enable the student to make educational progress taking into account the student's needs as reflected in the unchallenged present levels of performance contained therein.

Upon my independent review of the hearing record, I find no reasonable basis to disturb the IHO's findings that recommendations contained in the IEPs were aligned with the student's needs, annual goals, and services, and that the student demonstrated progress.  Thus, the IHO correctly determined that the IEPs were adequately designed to offer the student a FAPE for the 2023-24 and 2024-25 school years.

D. Relief

Notwithstanding the adequacy of the IEPs, as described above the IHO determined that the district's failure to fully implement the student's recommended related services during the 2022-23, 2023-24. and 2024-25 school years resulted in a denial of a FAPE to the student (IHO Decision at pp. 14-15).  As relief, the IHO ordered the district to implement all components of the student's IEP and to reconvene a CSE to determine an appropriate educational program based on new behavioral data that had been obtained by the parent but not shared with the CSE (id. at p. 20).  The IHO ordered the district "to fund a bank of compensatory education" to include 52 hours each of speech-language therapy, OT, and PT to be used over a period of two years (id. at p. 21).  Additionally, the district was directed to fund a comprehensive independent neuropsychological evaluation consistent with the requirements for an initial evaluation to include an assessment of the student's behaviors and communication to be conducted by private evaluators of the parent's choosing (id.).  The IHO further ordered the district to conduct a social history, observation of the student, and an assistive technology evaluation (id.).  The IHO directed the parent to provide documentation of a physical examination for consideration by the CSE (id.).  The IHO also directed the CSE to reconvene within 10 days of receiving the parent's independent neuropsychological evaluation and "combine the social history, classroom observation and assistive technology assessment report, to determine an appropriate educational program and related services in accordance with the [s]tudent's programming needs" (id. at p. 22).  Finally, the IHO dismissed without prejudice any other compensatory education requests that were "not specifically programmed" to allow for consideration of the ordered evaluations (id.).

1. Compensatory Education

With respect to equitable relief, the parent argues on appeal that the IHO erred in denying compensatory education in the form of ABA services because the parent already obtained two months of ABA through insurance.  Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).  Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]).  In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b];[1] 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]).  The Second Circuit has held that compensatory education may be awarded to students who are ineligible for services under the IDEA by reason of age or graduation only if the district committed a gross violation of the IDEA which resulted in the denial of, or exclusion from, educational services for a substantial period of time (see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 n.15 [2d Cir. 2015]; French v. New York State Dep't of Educ., 476 Fed. App'x 468, 471 [2d Cir. 2011]; Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071, 1078-79 [2d Cir. 1988], aff'd on reconsideration sub nom. Burr v. Sobol, 888 F.2d 258 [2d Cir. 1989]; Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]).

Here the parent's allegation of error is incorrect.  The IHO merely discussed when district learned of new information, finding that "[o]nce [the] [p]arent determined that ABA, specifically, was medically necessary, based on the evaluations administered from March 2024 to September 2024, and subsequent to this complaint, the [d]istrict was aware of the need for ABA services" (IHO Decision at p. 13).[23]  From this finding, it can be reasonably inferred that the IHO concluded that at the time of the development of the IEPs there was insufficient information that the student required home-based ABA (id.; see C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, at *13 [S.D.N.Y. Dec. 23, 2013] [stating that in addition to districts not being permitted to rehabilitate a defective IEP through retrospective testimony, "[t]he converse is also true; a substantively appropriate IEP may not be rendered inadequate through testimony and exhibits that were not before the CSE about subsequent events and evaluations that seek to alter the information available to the CSE"]; L.S. v. Union Free Sch. Dist. of the Tarrytowns, 2024 WL 1859970, at *17 [S.D.N.Y. Apr. 29, 2024]).  The IHO decision references two ABA assessments: reassessment and treatment plan in which the initial assessment was conducted from August 22, 2023 through September 5, 2023; the reassessment that was conducted from February 29, 2024 through March 10, 2024; and a SETSS-ABA assessment dated September 1, 2024 (see generally Parent Exs. G; J).[24]

Moreover, although the IHO did not order compensatory ABA services, as described above, she instead ordered the district to reconvene a CSE "to determine an appropriate educational program and related services in accordance with the [s]tudent's needs based on new behavioral data secured by [the] [p]arent" (IHO Decision at p. 20).  Furthermore, the IHO stated that both the district and parent can share "behavioral data" obtained through assessments to determine whether additional evaluations were needed and the student's "need for home-based ABA services" (id.).

2. Assistive Technology

As previously described above, the parent asserts that the district failed to provide the student with assistive technology, but the parent does not explain what need would be addressed by assistive technology.  To the contrary, the parent testified that she did not know what assistive technology was for and thought it might be something to help the student communicate but was not able to identify which assistive technology devices, if any, would benefit the student (Oct. 16, 2024 Tr. p. 51).  Such speculation on the part of the parent was sufficient to award relief.  Instead, the IHO ordered the district to conduct an assistive technology evaluation, which was not appealed by either party (see IHO Decision at p. 21).[25]  Once the assistive technology evaluation is conducted and the CSE reviews the evaluation, it is the obligation of the CSE to determine whether and what assistive technology devices and services, if any, may be required for the student.  Thereafter, if the parent remains dissatisfied with the CSE recommendations, she may pursue her due process rights.

3. IEE

Next, the parent claims that the IHO erred in refusing to grant her requested IEE assessments.[26]  The IHO reasoned that the parent should not be granted relief in the form of an IEE when the denial of FAPE was based upon the district's failure to implement all of the services listed in the IEP.  While the IHO denied the parent's request for an IEE as equitable relief, the IHO specifically ordered the district to fund a comprehensive independent neuropsychological evaluation consistent with the requirements for an initial evaluation to include an assessment of the student's behaviors and communication to be conducted by private evaluators of the parent's choosing (IHO Decision at p. 21).  The IHO further ordered the district to conduct a social history, observation of the student, and an assistive technology evaluation (id.).  The IHO directed the parent to provide documentation of a physical examination for consideration by the CSE (id.).  The IHO also directed the CSE to reconvene within 10 days of receiving the parent's independent neuropsychological evaluation and "combine the social history, classroom observation and assistive technology assessment report, to determine an appropriate educational program and related services in accordance with the [s]tudent's programming needs" (id. at p. 22).

The parent does not further specify in her requested relief which IEE she is seeking and instead requests that the district "fund each and every assessment in the requested [i]ndependent [e]ducational [e]valuation, because the [p]arent has an automatic entitlement to it based on the [d]istrict's inaction" (Req. for Rev. at p. 10).

Pursuant to the regulations, the parent is only entitled to one IEE at a public expense each time the district conducts an evaluation with which the parent disagrees (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g]).  The IHO determined that the student was "entitled to a comprehensive triennial evaluation" (IHO Decision at p. 18).

In D.S. v. Trumbull Board of Education, the Second Circuit discussed the idea of a comprehensive evaluation or reevaluation of a student forming the basis of an IEE request, as opposed to a single assessment (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 162-68 [2d Cir. 2020]; see also T.P. v. Bryan County Sch. Dist., 792 F.3d 1284, 1291 n.13 [11th Cir. 2015] [discussing the awkwardness of referring to individual assessments as IEEs when "evaluation" is used in the IDEA to refer to the entire process of determining a student's needs]). 

While the IHO also determined that the student was entitled to a neuropsychological evaluation, she noted that "the assessments within the neuropsychological [evaluation] do not need to be repeated as separate evaluations (e.g., behavior)" and opined that "[t]he incessant battery of assessments to a four- year-old d[id] not seem productive toward the end of securing FAPE. At some point discussions around [the s]tudent as a human have to precede the isolated evaluator recommendations that are neither feasible in time and human capacity, nor necessary for FAPE programming" (IHO Decision at p. 18).  The IHO found that what was appropriate relief for the failure to implement the August 2023 and March 2024 IEPs was a reevaluation "to include a comprehensive neuropsychological evaluation inclusive of all assessments for areas of suspected disability" (id.).

The IHO's findings with regard to the parent's request for an IEE was not error.  As described above, there was no error in the process of developing the student's IEPs, including the evaluation of the student. It was not necessary for the IHO to order an IEE at public expense due to the district's failure to implement all  of the services listed in the student's IEPs.

Based on the foregoing, the IHO did not err in denying all of the parent's requested assessments from independent evaluators at public expense.  After the completion of the reevaluation of the student ordered by the IHO, the parent may request an IEE at public expense if she disagrees with the district's reevaluation.

In light of my findings above, the parent's request for prospective relief in the form of a prospective placement and/or home-based ABA is not appropriate equitable relief under the circumstances of this case.[27]

Lastly, I find that the parent's argument that the IHO erred in dismissing the parent's "requests for relief without prejudice" is flawed.  Specifically, in discussing a remedy of compensatory education, the IHO found that the parent's "compensatory requests for other services, not specifically programmed, are dismissed without prejudice to allow for evaluative data" (IHO Decision at pp. 19, 22).  Therefore, if, after a CSE meeting has been held to consider the reevaluation of the student, the parent has new disagreements related to the provision of sufficient special education services, the parent can avail herself of her right to due process and seek compensatory education services.

VII. Conclusion

Having determined that the evidence in the hearing record supports the IHO's determination that the design of the student's IEPs did not deny the student a FAPE for the 2023-24 and 2024-25 school years and that the IHO's order of compensatory education relief was sufficient to remedy the district's failure to fully implement the August 2022, August 2023 and March 2024 IEPs, the necessary inquiry is at an end and the parent is not entitled to additional relief.

I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations above.

THE APPEAL IS DISMISSED.