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 the decision of an impartial hearing officer (IHO) which denied her request to be reimbursed for her son's tuition costs at the Big N Little: Ziv Hatorah School (Ziv Hatorah) for the 2022-23 and 2023-24 school years.  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

The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail.

Briefly, a Committee on Preschool Special Education (CPSE) convened on April 11, 2022, found the student was not eligible for special education as a preschool student with a disability (Parent Ex. P at pp. 1, 6).  By 10-day written notice letter dated August 18, 2022, the parent stated that the student's academic, social and behavioral needs could not be met in a general education classroom and requested that the district reevaluate the student "and place him in a full-time special education classroom" for the 2022-23 school year (Parent Ex. B at p. 2).  The parent further stated that if "these issues [we]re not timely addressed, [she] intend[ed] to unilaterally place [the student] in a private special education program" for the 2022-23 school year, and seek tuition funding and/or reimbursement from the district (id.).

On September 7, 2022, the parent signed a "student contract" enrolling the student at Ziv Hatorah for the 10-month, 2022-23 school year (Parent Ex. D at pp. 1, 3).  On September 29, 2022, the parent sent a "follow up 10-day notice" letter, reiterating her belief that the student's needs could not be met in a general education classroom (Parent Ex. C at p. 2).  The parent stated that she had previously requested that the district evaluate the student and place him in a full-time special education classroom for the 2022-23 school year and that the student had "not received a proper or adequate educational and school placement" for the 2022-23 school year (id.).  The parent also notified the district that she was unilaterally enrolling the student at Ziv Hatorah for the 2022-23 school year and would "commence proceedings to seek tuition funding and/or reimbursement from the [d]istrict" (id.).

The hearing record reflects that the student attended Ziv Hatorah from September 8, 2022 through June 16, 2023 (Parent Ex. G).  By 10-day notice letter dated May 30, 2023, the parent again asserted that the student's academic, social and behavioral needs could not be met in a general education classroom (Parent Ex. I at p. 2).  The parent also requested that the district reevaluate the student, convene a CSE meeting, and place the student in a "full-time special education classroom for the upcoming twelve-month" 2023-24 school year (id.).  The parent further stated that if "these issues [we]re not timely addressed, [she] intend[ed] to unilaterally place [the student] in a private special education program for the extended" 2023-24 school year, and seek tuition funding and/or reimbursement from the district (id.).

The parent executed a "student contract" with Ziv Hatorah on June 30, 2023 to enroll the student at Ziv Hatorah from July 2023 through June 2024 (Parent Ex. K at p. 1).  According to the hearing record, the student was referred to the CSE by the parent and the district conducted a June 30, 2023 speech-language therapy evaluation and a July 14, 2023 psychoeducational evaluation (Parent Ex. S at pp. 1-9; IHO Ex. I at pp. 1-6).[1]

A CSE convened on August 4, 2023, found the student eligible for related services as a student with an emotional disability, and developed an individualized education services program (IESP) with a projected date of implementation of September 7, 2023 (Parent Ex. Q at pp. 1, 6, 9).[2]^, [3]  The August 2023 CSE recommended 10-month services consisting of  one 30-minute session per week of individual counseling services, and one 30-minute session per week of group counseling services (id. at p. 1).

By letter dated August 7, 2023, the parent sent a "follow up" 10-day notice, stating that she had previously requested that the district reevaluate the student, convene the CSE, and recommend placement in a full-time special education classroom (Parent Ex. J at p. 2).  The parent asserted that the district had "still not evaluated [the student], provided him with an IEP, nor offered him any placement" (id. at p. 2).  The parent stated that she was "again requesting" that the district provide the student with an IEP, 12-month services, and "place [the student] in a full-time special education classroom" for the 2023-24 school year (id.).  Lastly, the parent stated that "unless this issue c[ould] be resolved," she intended to unilaterally enroll the student at Ziv Hatorah for the extended 2023-24 school year and "commence proceedings to seek tuition funding and/or reimbursement from the [d]istrict" (id.).  For the 12-month, 2023-24 school year, the student attended Ziv Hatorah from July 3, 2023 through June 19, 2024 (Parent Ex. N).

A. Due Process Complaint Notice

In a due process complaint notice dated June 6, 2024, the parent alleged the district denied the student a free appropriate public education (FAPE) for the 10-month, 2022-23 and 12-month, 2023-24 school years (Parent Ex. A at pp. 1-3).

The parent challenged the April 2022 CPSE's determination that the student was not eligible for special education and related services and challenged the August 2023 CSE's recommendation because the proposed placement was inappropriate. (Parent Ex. A at pp. 1-2).

For the 2022-23 school year, the parent asserted that the student required placement in a full-time special education classroom to address his cognitive, social/emotional, and behavioral deficits and for the 2023-24 school year, the parent argued that the student continued to need a full-time special education program to meet his needs and prevent regression in the areas of communication, attention, and academics (Parent Ex. A at pp. 1-2).  The parent alleged that she made multiple requests to the district to evaluate the student and recommend placement in a special education classroom, and that she notified the district of her intention to unilaterally enroll the student in a nonpublic school and seek public funding if the district did not recommend an appropriate program for the student (id. at pp. 2, 3).

As relief, the parent sought direct funding for the costs of the student's tuition at Ziv Hatorah for the 10-month, 2022-23 school year, and the 12-month, 2023-24 school year (Parent Ex. A at p. 3).

B. Impartial Hearing Officer Decision

An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on August 21, 2024 (Tr. pp. 14-114).[4]  During the introduction of proposed exhibits, the district indicated that it had submitted the incorrect documents for the impartial hearing, withdrew all of the proposed exhibits and offered an opening statement (Tr. pp. 20, 24).  In its opening statement, the district indicated that no witnesses would be presented and that the district would not be defending FAPE for the 2022-23 or 2023-24 school years (Tr. p. 24).

In a decision dated January 2, 2025, the IHO made findings regarding whether the district offered a FAPE for "SY23" and "SY 24" and while not entirely clear, these two designations appear to relate to the 2022-23 and 2023-24 school years respectively.[5]  The IHO appeared to make conflicting findings regarding "SY23" and determined that the district failed to offer a cogent explanation of the programming determinations for SY24 (IHO Decision at pp. 6-8). Next, in  findings that appear to blend the two school years, the IHO concluded that the parent failed to sustain her burden to establish the appropriateness of the student's unilateral placement at Ziv Hatorah (IHO Decision at pp. 8-10).  Regarding the appropriateness of Ziv Hatorah, the IHO reasoned that the representative from the private school refused to answer questions and provided conflicting testimony that was not credible, the school provided the student with inadequate access to nondisabled peers, and that the intensity of services was not justified and was exacerbating the student's needs rather than providing him with opportunities to progress (IHO Decision at pp. 8-10).

In addition, the IHO found that equitable considerations did not support an award of full funding to the parent insofar as the parent was not justified in unilaterally enrolling the student in a full-time special education program (id. at p. 11).  Consequently, the IHO denied the parent's request for reimbursement or funding of the costs of the student's tuition at Ziv Hatorah for both the 2022-23 and 2023-24 school years (id. at pp. 11-12).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred by finding that Ziv Hatorah was not an appropriate unilateral placement for the student for the 2022-23 and 2023-24 school years.  The parent argues that the IHO's characterization of the testimony offered by Ziv Hatorah's program supervisor as not credible was unsupported by the hearing record.  The parent alleges that the program supervisor did not refuse to answer questions about the student's needs; explained that Ziv Hatorah continuously monitored the student's development through structured data collection; utilized behavioral intervention plans (BIPs); and adjusted instruction to meet the student's needs.  The parent also contends that the program supervisor described the student's struggles and deficiencies and that his deficits necessitated structured intervention beyond speech-language therapy services. The parent also points to the program supervisor's testimony regarding the student's progress while attending Ziv Hatorah.

With regard to the student's specific learning needs, the parent asserts that the IHO erred by mischaracterizing the program supervisor's testimony.  Where the IHO found inconsistencies, the parent alleges that the program supervisor's testimony demonstrated that the student received instruction throughout the day from a special education teacher and that the student's teaching assistants changed based on the content of instruction.  In addition, the parent argues that the testimony related to the student's biting behavior was not inconsistent, and that the student's behavioral challenges were well documented, including his difficulties with self-regulation and aggressive behaviors.  Next, the parent claims that the IHO also mischaracterized the program supervisor's testimony regarding the student's primary behavioral concerns, which consisted of executive functioning, language use, and impulse control.  The parent argues that the IHO incorrectly considered the student's "lying" behavior as an isolated issue, rather than as a component of his difficulty with distinguishing fact from fiction and appropriately interacting with peers.  The parent further asserts that the IHO mischaracterized the program supervisor's testimony regarding the student's interaction with general education peers, and that the student was provided with multiple opportunities to engage with general education peers for peer modeling and generalization purposes.

Concerning the student's need for 12-month services for the 2023-24 school year, the parent alleged that the IHO mischaracterized the program supervisor's testimony and erred in finding that there was no data, which indicated that the student exhibited regression.  The student's BIPs and quarterly progress reports documented the necessity of continued intervention and the student's ongoing need for structured reinforcement.  The parent also asserts that the hearing record included extensive documentation of the student's progress, including FBAs, individualized instruction tracking, and quarterly updates through Ziv Hatorah's data collection system.

Lastly, the parent alleges that IHO erred in concluding that the program supervisor's testimony that the student received "low scores across the board" was not supported by the hearing record.  The parent claims that the program supervisor was referring to the student's behavior and language skills and that the student was appropriately placed in a 12:1+1 special class.  The program supervisor further testified to the student's meaningful progress in key areas such as improved impulse control, decreased elopement, and gains in receptive and expressive language.

With regard to equitable considerations, the parent argues that the IHO erred in finding that she was not justified in unilaterally enrolling the student at Ziv Hatorah.  The parent contends that the IHO misconstrued her testimony when she stated that the student did not have a disability and just required services.  The parent argues that she was stating the result of the CSE meeting and not testifying to her own position on the CSE's determination.  The parent also states that she cooperated with the CSE and there are no equitable considerations that would warrant a reduction in the amount of tuition funding she is seeking.  As relief, the parent requests tuition reimbursement for the 2022-23 school year and for the 12-month, 2023-24 school year.

In an answer, the district responds to the parent's allegations and generally argues to uphold the IHO's decision in its entirety.  The district asserts that the hearing record demonstrated that Ziv Hatorah was an overly restrictive unilateral placement that did not provide specially designed instruction to meet the student's needs.  In addition, the district contends that the IHO's equitable consideration determination should be upheld.

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]

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

Although unclear from the IHO's decision, both parties now agree on appeal that the district failed to offer the student a FAPE for the 2022-23 and 2023-24 school years, and I will hold the district to that concession.

A. Challenges to the IHO's Determinations

Before turning to the merits of the parent's appeal, a brief discussion of the IHO's decision is warranted.  In her analysis of the appropriateness of Ziv Hatorah, the IHO discussed the student's access to nondisabled peers and his progress (IHO Decision at pp. 9-10).[7]  While the IHO included a section in her decision with the heading "Student Needs," it was a discussion of the quality of the parent's evidence of the student's needs, rather than a recitation of the student's needs based on the evaluative information in the hearing record (id. at pp. 8-9).  The IHO found that the Ziv Hatorah program supervisor "presented with extreme credibility challenges," stating that she "refused to answer directly about working with [the s]tudent," that she "would not answer direct questions about [the s]tudent's needs, despite repeated inquiry," and that "she offered conflicting testimony about [the s]tudent's learning needs" (id. at p. 8).[8]  It is from these findings, that the parent appeals, arguing that the IHO's characterization of the testimony offered by Ziv Hatorah's program supervisor as not credible was unsupported by the hearing record.  The parent asserts that the program supervisor's testimony was consistent with the documents in the hearing record, that she answered questions about the student's needs and the specialized instruction provided by Ziv Hatorah, and about the student's progress during both school years.  In determining that Ziv Hatorah was not an appropriate unilateral placement, the IHO found that there was little to no evidence in the hearing record of the student's biting behaviors, that the student's struggles with transitions were exacerbated by the use of six teaching assistants, that the student's lying behavior undermined the existence of speech-language needs, and that critical data collected by Ziv Hatorah was omitted from the hearing record (id. at pp. 8-9).  Notably, the district did not challenge or refute the program supervisor's testimony about the student's needs by eliciting contrary testimony during cross-examination, and in its closing statement the district argued that Ziv Hatorah was not appropriate only due to the student's lack of progress (Tr. pp. 37-39, 41-51, 105).

During the impartial hearing, the district did not attempt to refute the parent's description of the student's needs and to the extent the IHO faulted the parent for not identifying the student's current needs, such a rationale has been found to improperly switch the responsibility for identifying the student's needs from the district to the parent (see A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]).  In addition and as discussed more fully below, the testimony of the program supervisor was consistent with documentary evidence in the hearing record.[9]

B. Unilateral Placement

Having determined that the IHO correctly found that the district failed to offer the student a FAPE for the 2022-23 and 2023-24 school years, the next inquiry focuses on whether the parent's unilateral placement of the student at Ziv Hatorah was appropriate.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129).  Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits.  Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs.  To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential.  They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

1. 2022-23 School Year

The hearing record includes a document on the form of a district CPSE IEP, which according to the accompanying notice dated April 11, 2022 was "an evaluation summary describing [the student]'s present level of functioning" (CPSE meeting summary) (Parent Ex. P at p. 6).  The notice further indicated that the April 2022 CPSE determined that the student did not require preschool special education services (id.).  The April 2022 CPSE evaluation results section of the meeting summary did not specify any assessment dates but indicated that the student's scores on multiple assessments placed him within the normal range of functioning in the areas of cognitive ability, socialization, communication, motor skills, daily living skills, and receptive and expressive language (id. at p. 2). The CPSE meeting summary indicated that the student could sometimes be hard to understand and in response he would "act up and get frustrated" (id. at p. 3).  With regard to the student's social development the meeting summary indicated he "ha[d] tantrums about one or two times per day when he d[id] not get his way" and the tantrums included "screaming (most of the time) and occasionally dropping to the floor or flailing about," which was rare (id.).  According to the CPSE meeting summary, the student had recently begun to bite others in the classroom (id.).

An August 26, 2022 psychoeducational evaluation report reflected that the student was privately assessed on August 24, 2022 and August 25, 2022 (Parent Ex. R at pp. 1, 6).  According to the August 26, 2022 psychoeducational evaluation report, administration of Wechsler Preschool and Primary Scale of Intelligence-Fourth Edition (WPPSI-IV) yielded a full-scale IQ of 94, which fell in the average range of intellectual functioning (id. at p. 3).  The private evaluator reported that the student demonstrated a relative strength in working memory and relative weaknesses in verbal comprehension and processing speed (id. at pp. 3-5).

The evaluation report also reflected that the student's academic skills were assessed using the Wechsler Individual Achievement Test-Fourth Edition (WIAT-4) (Parent Ex. R at pp. 2, 5).  The student's scores on the WIAT-4 placed him within the very low range of academic skill (id.).  The student's scores in word reading skills fell in the very low range, and his alphabet writing fluency and math problem solving skills fell in the low average range (id. at p. 2).

The evaluator also administered the Vineland Adaptive Behavior Scales, Third Edition (Vineland-3) to the student's teacher to assess his adaptive functioning (Parent Ex. R at p. 3).  Based on the teacher's responses, the student received an adaptive behavior composite score of 23, which indicated his overall adaptive functioning was in the low range (id. at p. 5).  According to the private evaluator, the student's functioning was "far below average" in the socialization domain, and in the maladaptive behavior domain the student scored in the "elevated range" for internalizing and externalizing behaviors (id.).  The evaluator noted that, reportedly, the student "disobey[ed] those in authority," broke rules due to peer pressure, and was "more active than others his age" (id.).

The Ziv Hatorah program supervisor reported the student entered the program with delays in social/behavioral, cognitive, and academic domains (Parent Ex. U ¶¶ 12-14).  The program supervisor further reported that the student demonstrated poor muscle tone, struggled with bilateral coordination, and had difficulty with gross motor tasks, balance, and coordination (id. ¶ 13).  She also noted the student exhibited language delays (Tr. pp. 37-38).

Information prepared by Ziv Hatorah regarding the 2022-23 school year indicated that the student's primary problem areas were communication, socialization, maladaptive behaviors, cognitive skills, and academic skills (Parent Ex. H at pp. 11-16).  Regarding communication, the treatment plan indicated that the student "presented with delays in his expressive and receptive language skills, had limited vocabulary words and used basic minimal speech" (id. at p. 11).  The treatment plan further noted that the student struggled to "use the words he kn[e]w[] for functional purposes," struggled to "mand" for his needs and wants and would become aggressive or cry instead of asking for help (id.).  The student was unable to "mand" for attention properly and would engage in attention seeking behaviors (id.).  The treatment plan noted the student did not initiate or join conversations with peers, and when directed with a question, he provided short responses (id.).  The student was reportedly unable to maintain conversation for multiple exchanges and he did not volunteer information or share details about his days with others (id.).  The treatment plan indicated the student had difficulty using gestures in his communication, struggled to follow two-step directions independently, and had difficulty answering "WH" questions (id.).  In addition, the student "display[ed] latency when given a transition," and struggled to consistently respond when others entered or exited his setting (id.).

The September 2022 treatment plan also reflected that the student had significant delays in socialization, lacked functional play skills and struggled to use play material properly (Parent Ex. H at p. 11).  The student reportedly wandered around the room during leisure time, was unable to maintain play for longer than a two-minute interval, and struggled to join peer play (id.).  The student would imitate peer behaviors when attempting to gain their attention (id.).  According to the treatment plan, the student also demonstrated difficulty following the rules of a game, sharing possessions, engaging in cooperative play, and maintaining personal boundaries, and he touched others inappropriately to gain their attention (id.).

The student's maladaptive behaviors as reported in the September 2022 treatment plan consisted of attention seeking behaviors such as laying on the floor pretending to be dead, touching others inappropriately, and eloping from structured and play activities (Parent Ex. H at p. 11).  The student reportedly became aggressive, hitting others and throwing items (id.).  The student would cry when given a non-preferred demand and "display[ed] latency when given a demand" (id.).  The student walked aimlessly around the room (id.).

Cognitively, the treatment plan reported that the student's delays impeded his ability to function across all settings (Parent Ex. H at p. 11).  The treatment plan reported that the student was unable to recall or retain information, was extremely prompt dependent, would not begin a task unless he was being guided step by step, and that he waited for prompts and redirection while he was in the middle of a task (id.).  With regard to attention, the treatment plan indicated the student struggled to maintain joint attention and "[i]nstead, he wander[ed] around the classroom and elope[d] the area when he los[t] focus" (id. at p. 12).  The student was reportedly distracted by any environmental stimuli (id.).

Academically, the treatment plan noted that in math, the student was unable to identify numbers or count, he did not understand the concept of more or less, and "could not compare" (Parent Ex. H at p. 12).  The student did not know shapes and could not classify items based on the size, shape or color (id.).  The treatment plan indicated that in English language arts (ELA), the student reportedly struggled to comprehend stories that were read in group settings, and he was unable to answer "WH" questions (id.).  The student also had difficulty when required to recall or retell any parts of the story (id).  The student was unable to identify the first letter of his name, and expressed no desire to write (id.).  The treatment plan stated that "[w]hile peers attempt[ed] to write, [the student] continue[d] to draw pictures" (id).

Turning to the unilateral placement, the student attended Ziv Hatorah for the 2022-23 school year (Parent Ex. U ¶ 10).  According to the program supervisor at Ziv Hatorah, the student was in a pre-kindergarten class with up to 12 students, all receiving special education services (id. ¶ 15).  The program supervisor testified that the classroom had a special education teacher and an assistant present at all times (id.).  In addition, the program supervisor testified that the student received speech-language therapy, PT, OT, and counseling services (id.).  The program supervisor also stated that the student had a BIP in place, which was frequently monitored to help him replace maladaptive behaviors with functionally-equivalent appropriate behaviors and that a reward system was utilized which motivated the student and helped him improve in various areas (id. ¶ 16).  Additionally, the program supervisor testified that all of the student's providers were "appropriately licensed and certified professionals in their respective fields in the State of New York" (id. ¶ 15).

The student's individual class schedule for the 2022-23 school year indicated that the student received five 15-minute periods per week of social interaction programs (table top interactive play); nine 15-minute periods per week of circle time/ group activity; five 15-minute periods per week of "Physical Education: Music N Movement Group Activity ABA"; five 15-minute periods per week of discrete trial programs in a group; five 75-minute periods per week of group class activity; four 30-minute periods per week of gross fine motor activities/outdoor play; four 30-minute periods per week of social skill interaction with typical peers/sports center; four 30-minute periods per week of related services/1:1 behavior technician; and four 60-minute periods per week of 1:1 behavior technician (Parent Ex. F at pp. 1-2).  The Ziv Hatorah program supervisor's testimony and student attendance record both indicated that the student attended the program from September 2022 to August 2023 (Parent Exs. G; N; U ¶10).  The student's individual daily class schedule also indicated that the student received two 30-minute sessions per week of individual speech-language therapy; two 30-minute sessions per week of individual OT; two 30-minute sessions per week of individual PT; and two 30-minute sessions per week of individual counseling services (Parent Ex. F at p. 2).

To address the student's functional communication and behavioral needs, Ziv Hatorah conducted a September 1, 2022 FBA, a September 8, 2022 BIP, and the above-described September 2022 treatment plan (Parent Ex. H at pp. 1-10; 11-16).  The FBA identified the student's targeted problem behaviors, provided a description of antecedents and consequences, included baseline data and a functional hypothesis (id. at pp. 2-5, 8).  It also identified the student's skill deficits related to the problem behaviors, described the student's interests and noted possible reinforcers, and detailed replacement behaviors which serviced the same function as the targeted behaviors, along with strategies for teaching new behaviors (id. at p. 4-6).  The FBA documented behavioral supports and interventions utilized with the student such as a special education teacher, OT, counseling, and speech-language therapy (id. at p. 5).  According to the Ziv Hatorah program supervisor, the September 8, 2022 BIP and the September 2022 treatment plan included strategies such as the use of visuals, educational videos, engaging classroom materials, coping mechanisms, structured breaks, modified tasks, reinforcement, prompting, a visual schedule, behavior momentum, verbal praise, functional communication training (FCT), small group instruction, Premack principle, token system, social skill training, modeling, prompts, scaffolding, graphic organizers, kinesthetic learning, sensory toys, "DRA," "DRI," role play, sensory breaks, and social stories (Parent Exs. H at pp. 5-6, 8-10; U at ¶18).[10]  The corresponding BIP listed each targeted behavior, identified its function and detailed prevention strategies, outlined an instructional plan for alternate behavior/replacement, behavior management strategies, and data collection/process monitoring procedures (id. at pp. 8-10).

Review of the September 2022 Ziv Hatorah treatment plan shows that it also included annual goals for the student in math, and ELA, which included specific targets for improvement in skills such as counting, determining more and less, comparing shapes, writing numbers and solving addition equations with numbers within 5, explaining the main topic and providing two key details after hearing a grade level, nonfiction text, actively engage in group reading activities, and pointing to uppercase and lowercase letters (Parent Ex. H at pp. 12-13).

The hearing record reflects that contrary to the IHO's findings, the student made progress in academics, communication, motor skills and behavior during the 2022-23 school year (Parent Ex. H at pp. 8, 14-19).

With regard to academics, according to a June 2023 special education teacher progress report, the student was performing at below grade level in ELA, however the student had mastered several skills including recognizing and producing individual sounds in simple words; using basic phrases and vocabulary to express simple ideas; identifying and discussing the main events of a simple story or event; answering basic questions about a story or event; and writing individual letters and simple words (id. at p. 18).  In math, the June 2023 special education progress report indicated that the student's math skills were also "below grade level," however, the student had developed foundational math skills, such as identifying numbers one to five and naming basic shapes (id at p. 17).  The June 2023 report also reflected that the student mastered skills such as recognizing and writing numbers up to 10; basic addition and subtraction concepts with numbers up to five; counting objects up to 20 accurately; identifying and naming basic shapes; and comparing and ordering objects by size, such as longer or shorter (id).  According to the Ziv Hatorah program supervisor, the student advanced in math and was able to count higher, and his reading skills advanced as evidenced by his ability to recognize all letters of the alphabet (Parent Ex. U at ¶ 20).

In terms of communication, the June 2023 special education progress report indicated that the student had mastered language skills such as labeling basic everyday items, animals and activities, however, the report noted that the student continued to struggle with answering "WH" questions related to a story (Parent Ex. H at pp. 18-19).  The Ziv Hatorah program supervisor testified during the impartial hearing that the student increased the number of words used in functional communication and his behaviors decreased in frequency and intensity (Tr. p. 45).  Socially the student mastered goals of increasing functional play with a model, maintaining functional play with the use of a visual timer, and increasing his ability to interpret social cues with personal boundaries and with gestural prompts during social skills and discrete trials (Parent Ex. H at p. 14).  It was also reported that the student exhibited improved expressive and receptive language skills by showing an improvement in calming himself down, communicating his feelings, and following directives (Parent Ex. U ¶20).

Next, while the March 2023 OT progress report, indicated the student continued to exhibit delays in age-appropriate motor skills, the program supervisor testified that the student's focus had improved  and fine motor skills had improved with respect to copying shapes and letters (compare Parent Ex. H at pp. 27, 29, with Parent Ex. U ¶ 20).

Turning to the student's behavior, the September 8, 2022 BIP included a chart that gave baseline data from September 2022 and documented progress through the school year 2023 (Parent Ex. H at p. 8).  The chart described the antecedent, behavior, maintaining consequence/function of the behavior, and replacement behaviors techniques used (id. at p. 11).  According to the BIP chart the student cried to escape a non-preferred demand eight times a day in September 2022 and three times a day in June 2023 (id.).  Attention seeking behaviors such as touching others inappropriately or saying "I am dead" decreased from seven times a day to three times a day (id. at p. 8).  Aggression such as causing intentional damage to objects, self or others went from six times a day to two times a day (id.).  Eloping behaviors went from eight times a day to three times a day (id.).  Latency to transition went from nine times a day to five times a day, and wandering went from eleven times a day to seven times a day (id.). The hearing record also included a July 3, 2023 BIP which documented the student's progress behaviorally and reported that the student had "mastered" targeted behaviors from the September 8, 2022 BIP related to "crying", attention seeking, aggression, and elopement (compare Parent Ex. H at pp. 8-9 with Parent Ex. O at p. 8).

The Ziv Hatorah program director explained that the program "d[id no]t fix children" rather it aimed to "reduce their challenging behaviors one at a time" (Tr. p. 44).  She further explained "we d[id no]t do magic," noting that based on Ziv Hatorah's initial assessment of the student he was far behind and reporting that he was still challenged (Tr. p. 44).  In addition, the program director stated "it wasn't like all of a sudden we took a child who, you know, was crying eight times a day and then [they] didn't cry at all" (Tr. p. 44).  However, she reported the frequency, intensity, and duration of the student challenging behaviors were reduced and there was an increase in the student's functional communication (Tr. pp. 44-45).

Based on the foregoing, the evidence in the hearing record shows that the parent met her burden to prove that Ziv Hatorah identified the student's special education needs, developed goals that addressed those needs, and provided specially designed instruction in programming specifically tailored to the student in which he benefited and demonstrated progress during the 2022-23 school year.

2. 2023-24 School Year

The student continued to attend Ziv Hatorah for the 2023-24 school year and, according to the program supervisor the student attended a 12-month upper kindergarten "Pre1A" special class with up to 12 students (Parent Ex. U ¶ 15).  The program supervisor indicated that the student again received related services through Ziv Hatorah, which included speech-language therapy, PT, and OT (id.).

Ziv Hatorah completed a second FBA on June 26, 2023 and charted the student's progress behaviorally until July 2023 and created a treatment plan for the student dated July 10, 2023 (Parent Ex. O at pp. 8-11, 12-17).  According to the July 2023 treatment plan, the student's communication, language, and vocabulary were below grade level and he struggled to effectively communicate with others (id. at p. 12).  It was reported that the student used foul language and sometimes cursed and shouted at his teachers and peers (id.).  According to the July 2023 treatment plan, the student struggled to express himself and often engaged in problem behaviors such as lying to gain attention or avoid punishment (id.).  The student's receptive language skills were characterized as "lacking" and the treatment plan indicated that he had difficulty following directions and required prompting and redirection to follow all instructions (id.).  According to the treatment plan, the student was "cognitively challenged and struggle[d] to keep up with his classwork" (id.).  The student presented with processing delays and had difficulty focusing, listening and comprehending new content which made learning difficult for him (id.). The treatment plan indicated that the student's ability to follow directions was impaired by his lack of attending skills and reported that the student needed multiple redirections and constant repetition to stay on task and struggled to maintain a calm body during instruction (id.).

Regarding socialization, the July 2023 treatment plan indicated that the student had difficulty engaging in appropriate social interactions, lacked basic social cues, and instigated conflicts (Parent Ex. O at p. 12).  The student was described as impulsive and the plan noted he had difficulty taking turns, self-regulating and controlling his emotions (id.).  The treatment plan reflected the student's maladaptive behaviors, which included difficulty maintaining focus and attention, impulsiveness, wandering around the room, fidgeting, latency, and instigating conflict (id.).

The Ziv Hatorah treatment plan for the 2023-24 school year included behavior, academic, communication, socialization and related services goals that aligned with his described needs (Parent Ex. O at pp. 8-9, 13-25, 34-38).

According to the November 2023 special education progress report, the student "made notable progress in recognizing, writing and counting numbers 1-5, and demonstrate[ed] proficiency in answering questions related to this number range" (Parent Ex. O at p. 18). The November 2023 progress report indicated that the student had difficulty when counting using one to one correspondence with numbers 5-20 and had difficulty counting past 10 (id.). The student also displayed difficulty comparing numbers using terms such as "greater than, equal, and less than" (id.). The student was reported to "lose focus easily but made advancements in his mathematical abilities with consistent support" (id.). The teacher used supports such as small group instruction, multisensory modalities, step-by-step guidance, prompting, and repetitive exercises to help the student retain information (id. 8).  With regard to reading, the November 2023 teacher progress report indicated the student had made "commendable strides" in reading, that he could successfully recognize and form upper and lowercase letters A-I, made "significant progress" in his ability to understand corresponding letter sounds," and was actively working on enhancing his fluency (id. at pp. 18-19).  In writing, the progress report indicated the student demonstrated a "growing proficiency in fundamental writing techniques" (id. at p. 19).  In terms of language, the teacher progress report stated that the student significantly improved his ability to respond to straightforward prompts and showed progress in his ability to articulate his needs and desires (id. at p. 20).  Additional progress in academics and language was reported in a May 2024 Ziv Hatorah teacher progress report (id. at pp. 23-25).

Turning to socialization, the student reportedly mastered goals that targeted his ability to increase social skills by asking for attention functionally; increase functional play skills; increase ability to remain in a group: maintain social boundaries with visual prompts; and improve functional play skills by following rules of the game (id. at pp. 16-17).

Regarding communication the treatment plan reported that during the 2023-24 school year the student had mastered goals related to his ability to increase intraverbal skills and responding to "WH" question using visual choice cards; tact common items presented to him during "DTT"; ask for attention using "FCT" upon verbal prompt; respond to two step direction upon verbal prompt; ask for his wants and needs in an appropriate tone; look at the speaker when his name is called; tact his motions using a chart; increase perspective taking skills and tact emotions in others in contrived settings; listen and follow an instruction heard two minutes prior; and say "okay" when presented with a "no/told to do an[] undesired task" (Parent Ex. O at pp. 14-16).  The Ziv Hatorah treatment plan also indicated that over the course of the 2023-24 school year OT addressed the student's underlying impairments in sensory processing skills, visual spatial skills, visual motor skills, bilateral coordination, gross motor skills, emotional regulation and handwriting (Parent Ex. O at pp. 24-35).  According to the treatment plan that the student made progress in his ability to remain focused, demonstrate awareness of his body in space, manipulate fasteners, visual motor skills, and graphomotor skills (id.).  The treatment plan also provided insight into the student's school counseling sessions (id. at pp. 37-38).  The plan indicated that to address the student's behavior in social settings, the student's school counselor encouraged the student to "speak about what was going on" and assisted the student with processing his perceptions of himself after an incident (id. at p. 37).  Additional interventions included the use of play therapy, social skills training, and role modeling social/positive behaviors (id. at p. 38).  According to the school counselor's progress reports, the student made progress in that he was overall happier, and had improved his ability to calm down after impulsive behavior, communicate his feelings, and follow instructions (id. at pp. 37-38).

Review of the evidence in the hearing record as discussed above shows that the parent met her burden to prove that Ziv Hatorah provided the student with specially designed instruction to meet the student's unique needs during the 2023-24 school year.

3. Findings of Regression

In her decision, the IHO stated that a "[p]arent's unilateral placement selection must be programmed for progress and not regression" (IHO Decision at p. 10).  The IHO opined that Ziv Hatorah had "taken a child that originally only required counseling service, and now program[med] him for a range of intensive services not specifically programmed and seemingly not required based on data. In short, the record reveal[ed] that the more time [the s]tudent spen[t] at [Ziv Hatorah], the worse his 'needs' bec[a]me" (id.).  The IHO noted that the student attended a 10-month program during the 2022-23 school year, and required more intensive intervention during the 2023-24 school year, which included 12-month services (id.).  The IHO stated that "[i]t [wa]s disconcerting that [the s]tudent's program increased in intensity over the two[-]year period with little additional data justifying a more restrictive program" and that "[w]hile private placements need not adhere to LRE as a [d]istrict school would to establish FAPE, the unilateral selection of the private school needs to be reasonably calculated for progress" (id.).[11]  Lastly, the IHO stated that "[i]ncreasing the programmatic intensity of a student who was decertified from services to increasingly stringent levels of support for longer durations raises alarms," and she found that Ziv Hatorah was "not reasonably calculated to ensure progress and not regression" (id.).  As discussed below, the IHO applied flawed legal analysis to the issue of progress.

In this instance, the IHO determined that the student failed to make progress by relying on the Ziv Hatorah program supervisor's description of the student's regression, which testimony was elicited after the IHO questioned why the student required 12-month programming (Tr. pp. 65-72; Parent Ex. U ¶¶ 10, 15, 21; see IHO Decision at p. 10).  A concern for regression over the summer and general findings regarding progress during the school year are not binary extremes in the sense that a finding regarding one necessarily negates the other.  For example, a student may make progress with his or her special education programming during the school year and then may or may not need summer programming depending on the student's individual circumstances.  State regulation provides that, students "shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression" (8 NYCRR 200.6[k][1]).  "Substantial regression" is in turn defined as "student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1[aaa], [eee]).  State guidance indicates that "an inordinate period of review" is considered to be a "period of eight weeks or more upon return to school" (see "Extended School Year Programs and Services Questions and Answers," at p. 3, Office of Special Educ. [Updated Sept. 2024], available at https://www.nysed.gov/special-education/extended-school-year-programs-and-services-questions-and-answers).

In this case, the program supervisor testified that according to data collected during the 2022-23 school year, "any time [the student] was out for a break, whether it was a holiday break or a weekend break, which we had, his data collection showed a regression within the area of behavior or any of his individualized goals" and that "[a]nything that was not mastered within his repertoire, we saw regression that was more intense than -- than his special needs peers" (Tr. pp. 65-66).  Therefore, according to the program supervisor, Ziv Hatorah "determined that he required a comprehensive program of the 12 months in order to prevent further regression from having that additional two months off" (Tr. p. 66).  The program supervisor did not testify to the length of time the student required to regain skills: however, she testified that the student exhibited greater skill loss after a break than his "special needs peers" (Tr. pp. 66, 68, 69; Parent Ex. U ¶ 21).

Here, the IHO did not address whether or not Ziv Hatorah's provision of 12-month services was appropriate, rather the IHO determined that any need for 12-month services during the 2023-24 school year must result in the finding that the student failed to make progress at the unilateral placement during the 2022-23 school year.  However, as explained above, that kind of binary analysis is a false dichotomy.  In this case, there were no findings that the special education interventions being used with the student at Ziv Hatorah were so out of alignment with his needs that he was unlikely to make progress during the 10-month school years in question, or the summers for that matter.  Instead, there was only a concern that if the student's special education instruction ceased for the long break over the summers that he would likely lose some of the skills that he did learn during the 10-month school year. In that instance 12-month services are an appropriate response, which is what the Ziv Hatorah provided the student in the present matter.[12]

To the extent that the IHO's decision may be interpreted as holding that the student failed to make progress at Ziv Hatorah for the 2022-23 and 2023-24 school years and was therefore inappropriate, again that would be a misapplication of the legal standards for determining the adequacy of a unilateral placement.  It is well settled that a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364).  However, while not dispositive, a finding of progress is, nevertheless, a relevant factor to be considered in determining whether a unilateral placement is appropriate (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

Review of the evidence in the hearing record shows that the parent met her burden to prove that Ziv Hatorah provided the student with specially designed instruction to meet the student's unique needs.  Specifically, the evidence reflects that Ziv Hatorah conducted an FBA and a BIP, as well as individual academic, social, physical and communication goals, and provided specially designed instruction to address those goals during the 2022-23 and 2023-2024 school years.  While the student did experience some regression during breaks, that does not automatically mean that the services are inappropriate, especially for students with significant needs, and given the totality of the circumstances, the hearing record shows that the unilateral placement in this case was appropriate for the 2022-23 and 2023-24 school years.

C. Equitable Considerations

Having found that the unilateral placement was appropriate, I next turn to whether equitable considerations warrant an award or reduction of the parent's requested relief.

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.  Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).  With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

As noted above, on appeal, the parent asserts that she cooperated with the district and provided it with several notices in which she requested a public school placement for the student, which the district ignored.  In its answer, the district alleges that there is no proof of transmission of any of the parent's 10-day notice letters.  The district also argues that "the IESP indicated that the [p]arent was only seeking services from the [district] after the date" of the 10-day notice (Answer ¶ 16).

The IHO found that the parent sent the first 10-day notice on May 30, 2023, after which, the district reevaluated the student and again determined that the student's cognitive and academic scores did not warrant intense support (IHO Decision at p. 8; see Parent Ex. I at p. 2).[13]  The August 4, 2023 CSE determined that the student was eligible for special education as a student with an emotional disability, based on behaviors that interfered with his learning and developed an IESP (id.; see Parent Ex. Q at p. 1).[14]  The IHO also found that there was no indication that the parent objected to the August 2023 IESP during the CSE meeting (IHO Decision at p. 8).  The parent sent another 10-day notice letter on August 7, 2023, in which she requested an IEP (Parent Ex. J at p. 2).[15]  The IHO found the parent's actions "questionable" (IHO Decision at p. 8).[16]  In her discussion of equitable considerations, the IHO found the parent "was not justified in privately placing [the s]tudent at a full-time special education school because [the s]tudent, per [the p]arent's own words, d[id] not have a disability, 'He just require[d] services.' In this statement, [the p]arent negate[d] the allegation that [the s]tudent required a full time special education program" (IHO Decision at p. 10).  For those reasons, the IHO determined that equitable considerations "d[id] not favor the [p]arent (id.).

Notably, the district offered neither testimony nor documentary evidence at the impartial hearing and the only equitable factor asserted by the district during its closing statement was the "exorbitant" cost of Ziv Hatorah, which has been abandoned by the district on appeal (Tr. pp. 105-06; see 8 NYCRR 279.8[c][4]).

Turning to the evidence available to the IHO, equitable considerations favor granting the relief requested by the parent.  Firstly, the student's mother participated in the CSE process and contributed information regarding the student's history and behavior at the April 2022 and August 2023 CSE meetings (Parent Exs. P at pp. 3, 4; Q at pp. 2-3).  Next, prior to enrolling the student at Ziv Hatorah for the 2022-23 school year, the parent sent the district a notice of her intention to unilaterally place the student as well as her request for the CSE to reconvene and reevaluate the student (Parent Ex. B at p. 2).  Having no response from the district, the parent sent a follow up notice approximately one month later (Parent Ex. C at p. 2).  On May 30, 2023, in anticipation of the 2023-24 school year, the parent sent the district notice of her intention to once again unilaterally place the student (Parent Ex. I at p. 2).  Then, on August 7, 2023, the parent sent a follow up request alleging that the district had not responded to her notice and requests (Parent Ex. J at p. 2).  Thus, the record reflects that the parent participated in the CSE process and made multiple attempts to raise her concerns with the student's educational programming with the district.

Next, I find that the IHO erred in determining that the parent was unjustified in unilaterally enrolling the student at Ziv Hatorah and seeking public funding for the cost of his attendance based on the parent's statement that the student was not "disabled", but just needed services.  The parent's qualified statement in these circumstances had no bearing on the extent to which she cooperated with the CSE.  Further, the parent's belief did not undermine her request for relief (see C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 [2d Cir. 2014] [holding that the parents' "pursuit of a private placement," even assuming they had no intention to keep the student in public school, was not a basis to deny their request for tuition reimbursement absent a finding that the parents "obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Given this unrefuted evidence of parental cooperation, as well as the district's pattern of non-responsiveness to the parent, I find that equitable considerations weigh against the district and support granting the relief requested by the parent.

VII. Conclusion

The parties do not dispute on appeal that the district failed to offer the student a FAPE for the 2022-23 and 2023-24 school years. The evidence in the hearing record demonstrates that the parent met her burden of proving the appropriateness of the student's unilateral placement at Ziv Hatorah for the 2022-23 and 2023-24 school years.  Further, there are no equitable considerations that justify a reduction or denial of her requested relief.  Accordingly, those portions of the IHO decision regarding the appropriateness of the unilateral placement and equitable considerations must be reversed.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision, dated January 2, 2025, is modified by reversing those portions which determined that the parent failed to meet her burden of proving the appropriateness of Ziv Hatorah for the 10-month 2022-23 school year and the 12-month 2023-24 school year, and that equitable considerations warranted a reduction in funding; and

IT IS FURTHER ORDERED that the district shall reimburse the parent for the full costs of the student's tuition for the unilateral placement at Ziv Hatorah for the 10-month 2022-23 school year, and for the 12-month 2023-24 school year.