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.  Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request for compensatory education related to the 2024-25 school year.  The district cross-appeals from that portion of the IHO's decision which required the district to provide pendency services after the IHO's decision was issued.  The appeal must be sustained in part.  The cross-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, the student has a history of speech-language, social/emotional, and behavioral difficulties and was originally found eligible for special education as a preschool student with a disability (Parent Exs. E; F; G at pp. 1-3).  In 2021, the student transitioned to a private school for kindergarten where she received special education itinerant teacher (SEIT) services and related services (Parent Ex. G at p. 4).[1]  A CSE convened on May 15, 2024, and found the student eligible for special education as a student with autism (Parent Ex. CCC).[2]  The CSE developed an IEP for the student and recommended she receive 10 periods per week of integrated co-teaching (ICT) services in both math and English language arts; three periods per week of ICT services in both social studies and sciences; related services consisting of two 30-minute sessions per week of individual counseling, two 30-minute sessions per week of individual occupational therapy (OT), two 30-minute sessions per week of individual physical therapy (PT), and four 30-minute sessions per week of individual speech-language therapy, as well as the support of full-time individual paraprofessional services (id. at pp. 25-26).  In addition, the CSE recommended that the parents receive monthly one-hour sessions of parent counseling and training (id. at p. 26).

On June 14, 2024, the parents, through their attorney, notified the district that they disagreed with the May 2024 IEP and intended to place the student at a nonpublic school (Parent Ex. C).  The parents also informed the district that they intended to obtain special education and related services for the student and seek reimbursement from the district for the 2024-25 school year (id.).  According to the student's father, the parents did not receive a "substantive response" to their letter but subsequently received a school location letter on June 25, 2024 (Parent Ex. AAA ¶¶ 36-37).

The parents executed an "Agreement for Services" with a provider of "BCBA Parent Training and Counseling," which indicated it was "[e]ffective July 1, 2024" (Parent Exs. CC; AAA ¶ 56).  The parent executed an agreement with Kids Domain Childcare Center (Kids Domain) for the provision of special education services, applied behavior analysis (ABA) services, Board Certified Behavior Analyst (BCBA) services, speech-language therapy, OT, PT and counseling services to the student, which indicated it was "effective as of September 1, 2024" (Parent Exs. DD, AAA ¶ 54).  The parent executed another agreement with a provider of counseling services, which indicated it was effective on October 1, 2024 (Parent Exs. BB; AAA ¶ 57).

A. Due Process Complaint Notice

In an amended due process complaint notice dated October 18, 2024, the parents alleged that the district denied the student a FAPE for the 2024-25 school year (Parent Ex. A).[3]  Specifically, the parents asserted that the CSE was not properly composed, relied on outdated evaluative data, developed present levels of performance that did not adequately describe the student's needs, did not mandate an ABA professional for the student, and did not recommend a 12-month extended school year or sufficient annual goals (id. at pp. 3-6).  The parents further alleged that they did not receive a prior written notice from the district, but did receive a school location letter. (id. at p. 7).  The parents asserted that they toured the assigned school in September 2024 and found it to be inappropriate to meet the student's needs (id. at pp. 7-8).  The parents' requested relief included a continuation of services recommended in a prior IHO decision related to the 2022-23 school year as well as the continuation of pendency for the same services including a request for compensatory services for any services not provided during pendency (id. at p. 10).  Additionally, the parents requested tuition reimbursement or direct funding of the student's nonpublic school placement during the 2024-25 school year (id.).

B. Impartial Hearing Officer Decision

After two pre-hearing conferences held on October 8, 2024 (Oct. 8, 2024 Tr. pp. 1-16) and November 25, 2024 (Nov. 25, 2024 Tr. pp. 1-18), an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on December 18, 2024 (Dec. 18, 2024 Tr. pp. 19-65).  The district did not appear at any of the hearing dates.

In a decision dated January 5, 2025, the IHO found that the district failed to meet its burden to prove that it offered the student a FAPE for the 2024-25 school year in that it failed to demonstrate its compliance with the procedural requirements of the IDEA and failed to demonstrate it developed an IEP "reasonably calculated to enable the student to receive educational benefits" for the 2024-25 school year (IHO Decision at p. 3).  The IHO then determined that the parents failed to meet their burden of demonstrating that their unilateral program was appropriate to meet the student's needs (id. at pp. 4-5).  Initially, the IHO noted that the parents withdrew their request for tuition funding and the IHO determined their request for ABA and related services "[was] more akin to an order directing that the IEP be amended to reflect the program set forth by the parent" (id. at p. 4).  The IHO noted that the parents did not present a witness from the student's nonpublic school and questioned whether this was because of scheduling or because it would not have been supportive of the parents' claims (id.).  The IHO then reviewed the presented evidence and determined there was a lack of explanation as to how the current providers were supporting the student in his academics, noting that the unilaterally obtained services focused on "methodology, specifically, ABA," rather than specific "academic programming" (id. at p. 5).  The IHO determined that, although the parents asserted a need for 40 hours per week of push-in ABA services, 15 hours per week of SEIT services, and 10 hours per week of  afterschool ABA services, there was no evidence as to how the services supported the student in the classroom, further noting the hearing record did not include a school schedule or a description of the day-to-day structure of the student's program (id.).  Moreover, the IHO gave little weight to the testimony provided by the parent's witnesses as they "appear[ed] to be structure[d] to prove the parent[s'] case rather than present an accurate reflection of the student's needs" (id.).  The IHO expressed concern with the daily time commitment and number of services the parents sought noting it was not evident such an intense and rigorous program was appropriate or could even be completed by the student (id. at pp. 5-6).  The IHO faulted the parents' providers for making individual recommendations and not showing how the individual services coordinated with each other (id.).

The IHO declined the parents' request to direct the district to implement a specific program, and instead directed the district to conduct an "updated neuropsychological" evaluation and reconvene a CSE to develop a new IEP based on the most recent evaluations (IHO Decision at p. 6).  Finally, in consideration of the parents' request for compensatory education for the alleged failure of the district to implement a prior pendency program, the IHO held that an IHO does not have authority to enforce a pendency order and that the student was only entitled to pendency beginning from the initiation of the instant matter on September 5, 2024 (id. pp. 6-7).  The IHO held that there was no evidence in the hearing record that the district denied reimbursement for services sought under pendency (id. at p. 8).  The IHO denied the parents' request for funding but directed the district to reevaluate the student, reconvene a CSE to develop a new IEP, and continue providing pendency services until the CSE was reconvened (id. at p. 9).

IV. Appeal for State-Level Review

The parents appeal, alleging the IHO erred in finding that the parents failed to meet their burden to prove the appropriateness of the student's unilateral program and in denying compensatory education as relief for the district's failure to fully implement the student's pendency services.  More specifically, the parents assert that the IHO erred in finding that they were responsible for demonstrating the district's failure to provide the student with a FAPE in failing to implement pendency, failing to consider the student's assistive technology (AT) needs, and in making certain credibility findings as they relate to witness affidavit testimony regarding the appropriateness of the unilaterally obtained services.

In an answer with cross-appeal, the district argues that the IHO's determination was supported by the record and cross-appeals from the IHO's order that required the district to provide pendency services beyond the conclusion of the administrative proceedings.

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]).[4]

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

Initially, neither party appeals from the IHO's determination that the district denied the student a FAPE for the 2024-25 school year nor the determination that implementation of pendency prior to September 5, 2024 was outside the scope of the hearing.  Furthermore, neither party has appealed from the IHO's directive that the district be required to conduct necessary evaluations, including a neuropsychological evaluation, and reconvene the CSE to consider the results of those evaluations.  Accordingly, these findings have become final and binding on the parties and will not be further discussed (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

A. Unilateral Placement

At the outset, neither party is disputing the IHO's application of the "Burlington/Carter" framework in evaluating the parents' unilateral placement (see Req. for Rev.; see also Answer with Cross-Appeal).  The parents' main contention is that the IHO erred in discrediting the testimony of the providers who delivered the student's services as part of finding that the parents failed to meet their burden of proving that the unilaterally obtained services were 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. Student's Needs

The student's needs are not in dispute, however, a review thereof will provide the background necessary to evaluate the appropriateness of the services provided to the student by the unilaterally obtained providers during the 2024-25 school year.

With regard to the student's intellectual functioning, the results of a neuropsychological evaluation, conducted in August 2022, indicated the student's overall intelligence, as measured by the Wechsler Preschool and Primary Scale of Intelligence – Fourth Edition (WPPSI-IV), "tested within the [a]verage range" as did all of her domain scores including those in the verbal comprehension, visual spatial, fluid reasoning, working memory, and processing speed domains (Parent Ex. F at p. 8).

Reports completed by the student's private providers at the end of the 2023-24 school year identified the student's needs for the following school year.  A May 2024 special education teacher support services (SETSS) progress report, completed by a certified reading specialist, indicated the student was significantly below grade level in reading and writing and that she demonstrated behaviors that hindered her academic progress (Parent Ex. N at p. 1).  According to the progress report, when presented with a difficult task the student would shut down, refuse to do work, would not ask for help, and when asked if she needed help would not respond (id.).  With respect to reading, the progress report indicated the student was an emerging reader who could read CVC words but struggled with blends and long vowel sounds (id.).  The report stated that the student performed best with short sentences and became overwhelmed and fatigued with longer sentences and paragraphs (id.).  According to the report, the student knew her upper- and lowercase letters, but used incorrect letter formation when writing and mixed-up letters such as b and d (id.).  The report noted the student had difficulty with correct sentence structure, including capitalization and punctuation, and difficulty spelling (id.).  Although the student was showing greater independence completing short written questions with only one answer, she had difficulty with open-ended questions or questions that required longer responses (id.).  The student was resistant to teacher feedback (id.).  The progress report indicated that, in math, the student struggled with reading instructions and word problems (id. at p. 2).  In addition, she was easily distracted, found excuses to avoid completing her work, especially if it was challenging, and required repeated prompts and redirection to stay on task (id. at p. 1).  A second SETSS report, from May 2024, indicated the student had difficulty with reading fluency and responded well to structured lessons, but needed prompting and redirection to complete all tasks (Parent Ex. O at p. 2).  The second SETSS report noted the student could identify all letters and knew her sounds, knew short and long vowel sounds, could decode simple CVC words, and sometimes decoded words with blends and digraphs (id.).  In addition, the student was sometimes able to retell a story and answer comprehension questions and when she did not remember the details, she looked at the pictures before answering (id. at p. 3).  In terms of writing, the second SETSS report indicated the student often used incorrect letter formation, started her sentences with uppercase letters and, with prompts, used ending punctuation, and could spell simple words and short sentences with minimal mistakes, but struggled with and avoided more complex writing tasks (id.).

A speech-language therapy report, completed in May 2024, indicated the student demonstrated delays in literacy including difficulty sounding out words and blending sounds to achieve reading fluency (Parent Ex. R at p. 2).  In addition, the student's decoding and comprehension difficulties carried over to math, specifically with regard to solving word problems (id.).  The therapy report indicated the student demonstrated clear production of all speech sounds but noted that, at times, she could be inarticulate due to weak articulatory contacts, soft and high pitch vocal intensity, and a quick rate of speech (id.).  Turning to the oral expression of metalinguistic skills, the May 2024 speech-language therapy report indicated the student had difficulty understanding and explaining multiple word meanings, expressions, and the language of humor (id.).  The therapy report indicated the student tended to have a simplified understating and use of language and reduced language expression when asked to formulate a narrative (id. at pp. 2-3).  According to the speech-language therapy report, the student was unable to write short paragraphs in response to questions (id.).

Turning to the student's physical development, a May 15, 2024 OT annual review progress report indicated the student presented with low muscle tone, along with upper body and hand weaknesses that resulted in fine motor and coordination delays (Parent Ex. P at p. 1).  According to the OT progress report, the student was able to copy/write short sentences with fair to good legibility on triple-lined paper, but her legibility decreased when writing on single-lined paper, which affected her ability to complete classwork and homework (id. at p. 2).  The student's writing was also difficult to read because it was "extremely small" (id.).  The OT progress report indicated the student worked at a slow work pace and required frequent redirection to stay on task (id.).  The progress report noted the student needed to improve bilateral coordination skills (id. at p. 2).  It further noted the student had a low tolerance for frustration and difficulty controlling her emotions (id. at p. 1).  Lastly, the progress report indicated the student demonstrated poor body awareness, presented with delays in sensory processing, and exhibited difficulty maintaining attention to task (id.).

A June 2024 counseling progress report indicated the student exhibited behavioral challenges, such as noncompliance and disruptive behavior, and presented with social skills deficits, such as using inappropriate language and engaging in inappropriate social interactions with peers (Parent Ex. Q at p. 1).  The counselor reported that an "intensive" motivational system was needed to help the student to remain on task and comply with directions and indicated that the student was responsive to the motivational system when the terminal reinforcer was of high preference but when she was less interested in the reinforcer higher levels of passive and active refusal were seen (id.).  According to the counselor, the student would follow simple directions independently especially those related to a preferred or neutral activity; however, the student had difficulty following more complex directions or those related to a less preferred activity (id.).  With regard to maintaining appropriate boundaries, the counselor indicated that, although improved, the student continued to engage in unwanted touching of peers and touched adults (attempting to sit on lap) without asking (id. at p. 2).  With regard to peer interaction, the counselor reported the student had difficulty understanding other people's perspective, engaged in attention seeking behavior with peers, and had difficulty understanding the reciprocity needed to form meaningful friendships (id.).  In terms of labeling and expressing emotions, the counselor reported the student could express positive emotions, such as happiness and excitement, without support but had difficulty expressing "'big'" emotions such as anger, disappointment, and sadness (id.).  The counseling report noted the student shut down or engaged in disruptive behaviors such as yelling and screaming when upset (id.).  Notably, the student had difficulty accepting disappointment and adjusting to when things did not go as anticipated (id.).

A June 2024 ABA program summary provided additional information regarding the student's functioning at the beginning of the 2024-25 school year (Parent Ex. S).  While the summary echoed much of the information provided by the student's other service providers regarding her academic, social/emotional, and behavioral needs, it also identified learning and language acquisition barriers faced by the student (id. at p. 5).  According to the summary, these barriers included behavior problems, instructional control, social skills deficits, prompt dependency, weak motivators, response requirement weakening motivators, reinforcer dependency, obsessive-compulsive behavior, hyperactive behavior, failure to make eye-contact, and sensory defensiveness (id.).  Based on the Assessment of Basic Language and Learning Skills – Revised (ABLLS-R), the June 2024 ABA summary report described the student's skill level as related to cooperation and reinforcer effectiveness, requests, play and leisure, social interaction group instruction, and classroom routines (id. at pp. 8-10).  With regard to cooperation and reinforcer effectiveness, the summary indicated the student exhibited a dependency on reinforcers, especially when task demands were high, which resulted in the need for stronger reinforcers to maintain her engagement (id. at p. 6).  According to the summary, the student quickly became satiated from reinforcement, did not respond well to multiple instructors and needed a long time to build trust and comfort, and task completion alone did not serve as a reinforcer for the student (id.).

In terms of requests, assessment by the ABLLS-R showed the student requested what she wanted gesturally but struggled to do so verbally (Parent Ex. S at p 7).  In addition, the student was inconsistent in making her wants and needs known and only made requests with preferred people and verbal prompts (id.).  According to the report, the student used basic sentences for requests (id.).  Turning to play and leisure and social interactions, the ABA program summary noted the student's play and engagement with others was inconsistent (id. at p. 8).  The student struggled to let others touch her toys, did not spontaneously initiate or return greetings, and had difficulty maintaining eye contact (id.).  She used visual cues, such as gestures, to ask for peers but did not verbalize (id.).  The summary indicated the student also joined activities initiated by peers and participated in them but without verbal interaction (id.).  The student's topics of conversation were limited, and she interrupted others before a conversation ended (id. at p. 9).  With regard to group instruction, the ABA progress summary indicated the student struggled to sit in a group without displaying maladaptive behaviors and required constant redirection to attend (id.).  According to the program summary, the student was able to independently raise her hand and answer questions (id.).  Lastly, the program summary indicated the student was able to follow daily routines but occasionally engaged in non-compliance (id.).  The student had difficulty with transitions and, although she could wait in line, she often pushed and touched her peers in a silly manner (id. at p. 10).

2. Special Education and Related Services

In review of the IHO's decision, the IHO found that the parents failed to meet their burden of proving the appropriateness of the nonpublic school the student attended for the 2024-25 school year because the parents did not present a witness from the nonpublic school and the school referred the student for further evaluations due to concerns about the student at the school (IHO Decision at p. 4).  Additionally, the IHO found that the witness affidavits presented by the parents were "conclusory and incredible" noting that the affidavits were uniformly structured and produced by providers who had an interest "in continuing to bill for the extensive services that they have recommended for the student" (id. at pp. 4-5).  More relevant to the IHO's ultimate finding, the IHO specifically noted that the parents did not "provide[] any evidence corroborating the provider's coordination with the school in implementing the student's program, the student's academic progress, and how the services support the student on a daily basis" (id. at p. 5).  In terms of specific evidence that the IHO found to be contradictory, the IHO contrasted the parents' claim that the class recommended by the district, with a ratio of 30 student to two teachers and the support of a full-time individual paraprofessional, was inappropriate to the BCBA's testimony that the student was appropriately placed in a class, with a ratio of 28 students to one teacher, along with the student's other supports, at the nonpublic school (id.).

On appeal, the parents primarily contend that the IHO erred in making credibility determinations based on the submitted affidavits and that she inappropriately based her decision on conjecture instead of the evidence in the hearing record.[5]  In terms of the IHO's finding as to the lack of evidence of the appropriateness of the unilateral placement, the parents contend that the IHO erred in indicating that the student's nonpublic school referred the student for evaluations, asserting that the evaluation reports show that the parents referred the student for the evaluations.  Additionally, the parents assert that the evaluators recommended supports to enable the student to function in a mainstream setting.  With respect to the IHO's determination that the parents did not provide any evidence regarding the student's nonpublic school, the parents assert that the student's BCBA provided "eye witness testimony establish[ing] the necessary facts."  Finally, the parents contend that the IHO mistook the parents' concerns about the public school in comparing the class ratios, asserting that the problem was not the size of the class but the environment in the public school.

Turning to the student's programming, the hearing record reflects that the parents placed the student at a nonpublic school and arranged for services, including SEIT services, school-based ABA services, home-based ABA services, supervision by a BCBA, counseling, and speech-language therapy (Parent Ex. AAA ¶¶ 35, 39-40, 52, 54, 56-58; see Parent Exs. BB-DD).  The student's nonpublic school placement consisted of a class of 28 students with one teacher (Parent Ex. VV ¶ 31).  The parents obtained most of the student's special education services during the 2024-25 school year through pendency, either as part of this proceeding or as part of a prior proceeding for the summer portion of the school year (Parent Ex. AAA ¶¶ 39, 54-58).  According to the student's father, the parents were unable to obtain OT or PT services for the student during the 2024-25 school year and counseling services, after October 1, 2024, were provided as part of a compensatory education award from a prior proceeding, rather than through pendency (id. ¶¶ 57, 59-61).  Invoices show that the student was provided with approximately three hours per week of speech-language therapy services, paid for by the parent, during the summer portion of the school year as well as from September 6, 2024 through November 27, 2024 (Parent Exs. GG-II).  Overall, the student's program pursuant to pendency during this proceeding consisted of approximately 79 hours of direct, individual services each week consisting of 20 hours of SEIT services, 50 hours of ABA services (40 hours of push in services at school and 10 hours of home), and slightly over 9 hours of related services (180 minutes of counseling, 180 minutes of speech-language therapy, 135 minutes of OT, and 60 minutes of PT) (Parent Ex. BBB at p. 1).[6]

Initially, although the parents' contract with Kids Domain indicated it was effective as of July 1, 2024, the hearing record only includes invoices for services delivered by Kids Domain beginning September 2, 2024 (Parent Exs. DD; JJ-NN).  For the summer portion of the 2024-25 school year, the hearing record includes invoices from a different agency, EdZone, LLC (EdZone), showing delivery of SEIT services, ABA services, BCBA supervision, and case management services, although at a frequency and duration less than the student's identified program (Parent Exs. OO-RR).  Invoices from Kids Domain show that the student was provided with SEIT services delivered in the student's home, home-based ABA services, school-based ABA services, BCBA supervision, and BCBA services between September 2, 2024 and November 28, 2024 (Parent Exs. JJ-NN).  Overall, invoices show that the student received approximately 40 hours per week of school-based ABA services and up to 10 hours per week of home-based ABA services from September 4, 2024 through November 28, 2024 (Parent Exs. KK; LL).  The invoices further show the delivery of approximately four hours per week of BCBA supervision and two hours per week of BCBA services between September 2, 2024 and November 26, 2024 (Parent Exs. MM; NN).  In addition, invoices show the student received 12 hours of SEIT services in September 2024 and six hours of SEIT services in November 2024 with the service delivered at night or on weekends (Parent Ex. JJ).

Turning to the parents' appeal of the IHO's finding that a referral of the student for an evaluation by the nonpublic school was an indication that the school was not an appropriate placement for the student, a review of the evaluation reports cited by the IHO shows that, in the report of testing conducted on August 19, 2022, the evaluator noted the parents requested the evaluation due to concerns that the student was having a hard time communicating with others and was "performing poorly within the school setting" and, according to the report of the neuropsychological evaluation conducted in August 2022, the evaluation was requested by the student's school because the student "exhibited behaviors which required additional supports in the classroom" (Parent Exs. E at p. 1; F at p. 6).  At the time of the August 2022 neuropsychological report, the student was attending the same nonpublic school and was receiving 10 hours per week of SEIT services pushed into the school day, the support of full-time 1:1 paraprofessional services, and related services consisting of speech-language therapy, OT, PT, and counseling (Parent Ex. F at p. 1).  The report recommended, among other things, the continuation of full-time 1:1 paraprofessional services and 20 hours per week of 1:1 instruction, with the addition of ABA services consisting of 40 hours per week at school, and an additional 10 hours per week at home, along with related services including four hours per week of speech-language therapy, two hours per week of counseling, and continuation of OT and PT services (id. at pp. 9-13).  Accordingly, although the report did indicate concerns with the student's performance at the nonpublic school, it also recommended an increase in services, which is an indication that the evaluator believed, at that time, that the nonpublic school itself could have been made appropriate with increased services.

I next turn to the parents' contention that the testimony presented during the hearing supports finding that the student was able to make progress with the in-school ABA support and additional services (Req. for Rev. at p. 6; see Parent Exs. TT at p. 3; UU at p. 5; VV at pp. 2-6, 8).  Review of the testimony shows that the only witness who observed the student at school was the BCBA who provided the student's supervision and case management, as she testified she saw the student two to three times per week in the school and at home (Parent Ex. VV ¶¶ 7, 14, 16; see Parent Exs. TT-AAA).  However, neither the student's teacher nor the providers who delivered the student's in-school ABA services provided testimony for the hearing (see Parent Ex. VV ¶11; Parent Exs. TT-AAA).  The BCBA testified that her BCBA supervision included observation of the student in school, demonstrating how to implement the student's behavior plan, providing feedback, reviewing data and collection methods with the provider, and determining if modifications needed to be made to the student's program, as well as providing "direct services" to the student in her classroom and at home (Parent Ex. VV ¶¶ 14, 16).  However, the only other mention of "direct" services in her affidavit was an explanation that she worked with the student to help the ABA provider implement the student's behavior plan, which was also included as part of her explanation of supervision (id. ¶¶ 7, 14).  Nevertheless, the BCBA testified that she collaborated daily with the student's ABA providers, weekly with her teacher, and monthly with the school principal, as well as regularly with the student's counselor and parent trainer, the student's parents, and other members of the student's team (id. ¶¶ 16, 17).  Accordingly, the witness should have been able to describe how the student was functioning within the school setting.  However, as discussed below the testimony and documentation are insufficient to overturn the IHO's determination that the parents did not meet their burden of proving the appropriateness of the unilaterally obtained program for the 2024-25 school year, taking into account the totality of the circumstances.

The BCBA testified that, during the 2024-25 school year, the student's providers implemented ABA methodologies with the student, including breaking down tasks into smaller steps, use of positive reinforcement, use of prompts, teaching replacement behaviors, and generalization training (Parent Ex. VV ¶¶ 21, 23).  The BCBA specifically noted that the ABA providers collected and analyzed data consistently in order for the BCBA to make adjustments to the student's intervention plan (id. ¶¶ 22, 23).

However, there are some questions as to the student's programming during the 2024-25 school year that are not sufficiently answered in the BCBA's testimony.  According to the BCBA, she reviewed an end of year assessment completed by EdZone, spoke with the parents, observed the student at home and in school, and set up scenarios to probe the student's skills in order to determine what skills the student needed to work on for the 2024-25 school year (Parent Ex. VV ¶ 19).  The BCBA testified that, at the start of the school year, the student exhibited deficits in communication, socialization, executive functioning, and academic skills and struggled with task avoidance, frequent shutdown behaviors, and difficulty with social interactions (id. ¶ 20).  According to the BCBA, baseline data indicated that the student was at zero percent mastery for most of her targeted goals (id.).  The BCBA described that the student's school-based services emphasized integrating the student into a structured classroom setting, promoting social interactions, and support during transitions and group activities (id. ¶ 26).  Additionally, the BCBA testified that teachers addressed the student's behaviors using strategies outlined in the student's behavior intervention plan (BIP) (id. ¶ 27).  According to the BCBA, the student's teachers implemented reinforcement strategies, followed prompting hierarchies, and used behavioral momentum techniques as recommended (id.).

The hearing record includes the EdZone ABA program summary as of June 2024, which included the completion of an ABLLS assessment with reported scores on the assessment and explanations as to the student's then functioning across cooperation and reinforcer effectiveness, requests, social play and leisure, social interactions, group instruction, and classroom routines (Parent Ex. S at pp. 5-11).  The report also identified targets for the student, including mastered targets, in treatment targets, and targets for the upcoming reporting period (id. at pp. 11-14, 16-27).  For the in-treatment targets, the EdZone report included tracking data from September 1, 2023 through June 6, 2024 (id. at pp. 16-27).  Although the BCBA testified that she reviewed the EdZone end of year assessment, it is worth noting that the assessment was completed in June 2024 and EdZone continued to provide the student with services in July and August 2024 prior to the BCBA and Kids Domain beginning services with the student in September 2024 (see Parent Exs. S; OO-RR; VV ¶¶6, 19).

The BCBA testified that she had recently completed a midyear progress report for the student (Parent Ex. VV ¶ 24; see Parent Ex. U).[7]  A comparison of the Kids Domain mid-year progress report with the EdZone end of year assessment shows that the same goals were identified in both reports in the areas of communication, academics, and adaptive skills; with the Kids Domain report providing more defined targeted skills in the same behavior and socialization goal areas as the EdZone report (compare Parent Ex. S at pp. 12-14, with Parent Ex. U at pp. 11-15).  As noted above, the BCBA testified that, at the beginning of the school year in September 2024, baseline data indicated that the student was at zero percent mastery for most of her targeted goals (Parent Ex. VV ¶ 20).  However, there is no explanation as to why that was the case, given that, over the summer, the student was receiving SEIT services, ABA services, BCBA supervision, and case management services (Parent Exs. OO-RR).  In making her recommendation for continuing the student's ABA program for the 2024-25 school year, the BCBA both in her mid-year progress report and in her testimony relied on the premise that baseline data indicated the student was at zero percent mastery for most of her targeted goals, which "highlight[ed] the need for intensive ABA services" and showed that the student was making progress with the provision of ABA (Parent Exs. U at pp. 22, 24; VV ¶ 20).

Turning to the mid-year progress report, according to the BCBA, she completed an ABLLS-R assessment with the student to evaluate the student's skills across domains and found that the student had strengths in responding to reinforcers, completing tasks with praise, and making requests for desired items; however, the student had challenges with maintaining consistent eye contact, responding to variable reinforcement schedules, and using descriptive language (Parent Ex. VV ¶ 25).

With regard to adaptive ABA goals, the ABA progress report indicated the student was working on taking out appropriate materials during transitions between classes and transitioning between academic subjects and class activities without social conflict behaviors (Parent Ex. U at p. 3).  Her baseline performance in September 2024 on adaptive goals was zero percent, and as of November 2024 she had made incremental progress, achieving 30-35 percent mastery, respectively (id. at p. 4).  According to the progress report, continued intervention was needed to increase consistency and achieve mastery (id.).  In terms of communication goals, the ABA progress report indicated the student demonstrated incremental progress related to her ability to make verbal requests, engage in social turn-taking, and express frustration (id. at pp. 7, 23, 24).  Between September 2024 and November 2024, the student moved from a baseline mastery of zero on all of her communication goals to mastery levels between 15 and 30 percent (id. at pp. 5-7, 23).  With regard to socialization goals, the progress report noted the student was making progress toward skills such as maintaining eye contact, initiating interaction and engaging with peers, and sharing materials, and had advanced from a baseline level of zero percent mastery in September 2024 to mastery levels between 20 percent and 40 percent in November 2024; however, the report noted the student still required support to generalize these skills and navigate complex social scenarios (id. at pp. 8-10, 23, 24).[8]  Behaviorally, the progress report indicated the student made progress in reducing maladaptive behaviors, such as shutdowns and task avoidance, although the behaviors persisted (id. at pp. 13-16, 24).  The progress report indicated the student's level of mastery on her behavior goals had increased from zero percent in September 2024 to between 15 and 55 percent in November 2024 (id. at pp. 13-15).

While the mid-year progress report shows progress in terms of percentage increases towards the student's targeted goals, it is worth noting that many of the targeted goals, specifically the academic goals, were vague and undefined making the percentages fairly meaningless (see Parent Ex. U at pp. 11-12).  For example, a number of the student's targeted goals in academics simply call for the student to "improve" in various areas, such as comprehension while reading, comprehension while listening, her written articulation skills, reading math problems, reading instructions independently, answering open ended questions, speed in completing writing tasks, and independence during academic tasks (id.).  The summary of the student's progress in academics is similarly vague, describing the student as having made "some progress in areas such as reading fluency, reading accuracy, writing, and comprehension," but she was "still below grade level and continue[d] to need the support" (id. at p. 10).  With slightly more specificity, the report noted that the student "struggle[d] with reading math word problems, writing with proper punctuation and capitalization, and completing academic tasks independently" (id.).  However, overall, the report does not provide specific information with respect to the student's academics during the 2024-25 school year.

Relevant to the above, in discussing progress in her affidavit testimony, the BCBA twice noted that the student's progress was monitored through consistent data collection, which was analyzed to make necessary adjustments to the student's intervention plan (Parent Ex. VV ¶¶ 22, 23).  Accordingly, it would be expected to see data points tracking the student's targeted skills over time; however, review of submitted ABA treatment graphs shows straight diagonal lines across all of the student's targeted goals, with no fluctuations, raising suspicion that the only data points were September 1, 2024 and November 28, 2024, the same day as the mid-year progress report (see Parent Ex. W).[9]

In addition to the above, a BIP was included in the mid-year progress report (Parent Ex. U at pp. 16-19).  According to the BIP, the student had three targeted behaviors: shutdown behavior, task avoidance, and distraction by external stimuli (id.).  For each targeted behavior the plan included a topography of the behavior, an interpretation and analysis of the function of the behavior, identification of proactive strategies for addressing the behavior, identification of replacement behaviors, and reactive/de-escalation strategies to be used with the student (id.).  The November 2024 ABA progress report indicated that behavioral methods to be used with the student included, but were not limited to, most-to-least/least-to-most prompting, behavioral momentum, shaping, chaining, modeling, role play, contingency contracts, and various differential reinforcement procedures (id. at p. 15).  The shutdown behavior was described as one of the most prominent of the student's challenges (id. at p. 2), and the hearing record does include tracking data for this behavior (Parent Ex. X at pp. 1-3).[10]  The student's shutdown behavior was described as the student "ceasing all work, appearing disengaged or refusing to participate, typically triggered by task difficulty or frustration" and having a function of escape or avoidance (Parent Ex. U at pp. 16-17).  Similar to the shutdown behavior, the student's task avoidance behavior was described as the student "delaying or refusing to begin tasks or escaping tasks when they are perceived as difficult" and as having an escape or avoidance function (id. at p. 17).  As reported in the mid-year progress report, pursuant to that data, progress has been made towards a reduction in the student's shutdown behavior (Parent Exs. U at pp. 16, 23-24; X at pp. 1-2).  The BCBA noted, in her report, that a reduction in the student's behavior has "allowed [the student] to engage more consistently in classroom routines and social interactions" (Parent Ex. U at p. 24).

However, a review of the report of the ABLLS from June 2024 and the ABLSS-R in November 2024 show remarkable consistency in the student's functioning with respect to group instruction and classroom routines (compare Parent Ex. S at pp. 9-10, with Parent Ex. V at pp. 5-6).  Overall, the student exhibited challenges in participating in group instruction, she struggled to sit in a group without exhibit maladaptive behaviors, and she exhibited inconsistent attention; however, she was able to raise her hand, answer questions, and take turns (Parent Exs. S at p. 9; V at p. 5).  The student was also capable of acquiring skills within a group setting, but often needed individual support to master skills (Parent Exs. S at p. 9; V at p. 5).  With respect to classroom routines, the student was able to follow daily routines, but occasionally engaged in noncompliance, particularly during nonpreferred tasks (Parent Exs. S at p. 10; V at p. 6).  The student found it challenging to wait appropriately; she was described as generally waiting for her turn but also engaging in pushing or touching behaviors (Parent Exs. S at p. 10; V at p. 6).  The student transitioned smoothly for preferred tasks but cooperation decreased for nonpreferred tasks (Parent Exs. S at p. 10; V at p. 6).  The student also had difficulty working independently on academic tasks without 1:1 support and needed prompts to retrieve or put away her educational materials and to bring her completed tasks to the teacher (Parent Exs. S at p. 10; V at p. 6).

In addition to the above, the hearing record also includes reports regarding the additional services delivered to the student outside of school.  A July 29, 2024 EdZone SEIT progress report indicated that, at the time it was written, the student was in the second grade and received 20 hours of one-to-one SEIT instruction weekly to address her academic and social/emotional delays (Parent Ex. T at p. 1).[11]  The SEIT report indicated that the student's reading skills were at an end of first-grade level and math skills at a second-grade level (id.).  The SEIT report described the student's academic needs including her weaknesses in letter-sound relationships, phonemic awareness, and comprehension; struggle to generate coherent and cohesive sentences; and difficulty completing math word problems (id. at pp. 1-2).  The progress report also noted her difficulty with attending to class instruction and interacting with peers (id. at pp. 1-3).  The July 2024 SEIT progress report included goals that targeted the student's task completion; ability to initiate conversations with peers, read and recognize sight words, read grade level books, write more legibly, use proper capitalization and punctuation, and use descriptive adjectives in writing; and her need to improve her ability to read instructions independently and solve math word problems (id. at p. 4).

A midyear progress report, dated December 5, 2024 and completed by a special education teacher who specialized in reading instruction and worked under Kids Domain, indicated the student was "mandate[d]" to receive 20 one-hour sessions of SETSS with at least three hours dedicated to reading instruction (Parent Ex. AA at p. 1; see Parent Ex. WW at p. 4).  The progress report indicated the student's services were delivered by multiple providers (Parent Ex. AA at p. 1).  In terms of recent progress, the reading specialist reported that four months into third grade the student's reading level had progressed from an emerging reader to that of a student entering or midway through second grade (id. at p. 2).  The reading specialist reported the student performed best when presented with one short sentence at a time and explained that when words became more difficult for the student or too many words were presented at a time, the reading specialist used positive reinforcement and prizes to encourage the student to cooperate (id.).  According to the reading specialist, the student's reading comprehension was limited when reading independently (id.).  The reading specialist reported that she addressed the student's reading deficits through sight word practice, word building, and content reading with comprehension questions (id.).

Next, the reading specialist indicated the student's writing skills were delayed and that she struggled with spelling and sentence construction, but she also indicated the student had shown improvement with support (Parent Ex. AA at p. 2).  To assist the student with writing tasks, the reading specialist reported she worked on breaking questions and tasks into multiple steps that the student could manage, a method that was instrumental in the student's ability to successfully articulate and express her thoughts (id.).  Turning to math, the reading specialist stated that math was a relative strength for the student but that reading deficiencies affected her ability to solve word problems as she could not read, comprehend, or complete them independently (id. at p. 3).  However, when problems were read aloud, she completed them accurately (id.).  According to the reading specialist, the student frequently misread directions, which led to errors in simple problems that she would otherwise complete correctly (id.).

With regard to attention and behavior, the reading specialist reported the student was easily distracted and exhibited a short attention span (Parent Ex. AA at p. 3).  The reading specialist noted the student frequently moved in her seat, played with objects, or got up during sessions (id.).  Moreover, challenging tasks exacerbated these behaviors, requiring frequent prompts and redirection (id.).  In some instances the student shut down completely, becoming unresponsive, although overtime these behaviors had decreased in frequency and duration (id.).  The reading specialist reported the student had a hard time accepting criticism, and she reacted negatively to having to make corrections, particularly in her writing, and often refused to make them (id.).  She also displayed task avoidance tendencies (e.g., leaving to use the restroom or putting her head down) (id.).  According to the reading specialist, at times the student would get agitated to the point of closing or crumbling her work or throwing down her pencil (id. at p. 4).  The reading specialist noted that positive reinforcement and reward systems had helped the student increase her endurance for tasks she found taxing and she had become more responsive to prompts to refocus her attention (id.).

A November 27, 2024 counseling midyear progress report indicated the student received three 60-minute individual counseling sessions per week for the 2024-25 school year (Parent Exs. Z at p. 1).  Beginning on October 1, 2024, the student's counseling services were provided by the psychologist who performed the neuropsychological evaluation of the student in 2022 and who had previously consulted on the student's case (compare Parent Ex. F at p. 12, with Parent Ex. Z at p. 1; see Parent Ex. BB).  The counseling progress report noted that the student had made progress in social and emotional skills but continued to need support, particularly in executive functioning and academic performance (Parent Ex. Z at p. 1).  According to the psychologist, during counseling sessions, the student displayed a lack of discrimination in social interactions and variable interest in activities, focusing better when engaged in hands-on tasks (id.).  She could identify emotions in pictures but struggled to create stories explaining them, often resorting to silliness when unable to elaborate (id. at pp. 1-2).

According to the psychologist, the student exhibited noncompliance and engaged in inappropriate social interactions, however, she responded well to redirection and naturalistic reinforcers (Parent Ex. Z at p. 2).  The psychologist reported that she employed a social thinking model when working with the student and provided her with the option of saying "'I don’t know'" or "'I don't want to answer that,'" along with limited choices in order to prevent "shutdown behavior" (id.).  The psychologist identified strategies and interventions that had been effective in instructing the student, including the use of a motivational system using positive reinforcement for compliance, flexibility, and appropriate social interactions; use of differentiated attention in which inappropriate behaviors were ignored and appropriate behaviors resulted in positive attention; use of differential reinforcement of appropriate behavior to reinforce prosocial activity; use of shaping to strengthen small steps toward desired behaviors and to systematically increase the response requirement; and direct instruction so that skills could be broken down and taught systematically with repeated opportunities for modeling and practice (id. at pp. 4-5).  According to the November 2024 progress report, the psychologist  anticipated that she would continue to work on goals related to the student's ability to follow directions, maintain boundaries, interact appropriately with peers, express emotions, and increase flexibility (id. at pp. 3-4).

Turning to the student's speech and language needs, the hearing record included a December 5, 2024 speech-language midyear progress report that described the speech-language therapy services delivered to the student during the 2024-25 school year (Parent Ex. Y).  The speech-language pathologist who authored the report indicated she provided the student with three 60-minute sessions of speech-language therapy per week, consistent with the student's pendency mandate (id. at p. 1).  According to the speech-language therapy progress report, the student's therapy focused on improving speech articulation; improving reading in decoding, comprehension, and fluency; improving expressive language skills; improving writing skills including spelling, and improving metalinguistic skills (id. at pp. 1-3).  The report further indicated the student had shown progress in decoding but struggled with fluency and multisyllable words, requiring reminders not to guess (id. at p. 1).  The report noted that the therapist employed PROMPT strategies and reviewed decoding rules with the student to help facilitate accurate decoding (id.).  In addition, the therapist used word lists for drill practice with a focus on segmenting and blending (id. at pp. 1-2).  According to the progress report, the student's articulation had improved, but she still needed reminders to use compensatory strategies during conversations (id. at p. 2).  The progress report stated the student was resistant to writing tasks but had shown interest in typing narratives, and an assistive technology device was recommended to aid her communication and academics (id.).

Based on the above, and considering the totality of the circumstances, although the hearing record includes a wealth of information regarding the services delivered to the student outside of school, the hearing record does not support departing from the IHO's finding that the student's educational program, including placement at the nonpublic school, was not an appropriate placement for the student.  Specially designed instruction is defined as "adapting, as appropriate to the needs of an eligible student . . . , the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).  As described above, the hearing record does not include sufficient evidence of the instruction that the student received while attending the general education nonpublic school.  In particular, as partially noted by the IHO, there was insufficient evidence corroborating the providers' coordination in implementing the student's program with the nonpublic school the student attended during the 2024-25 school year, the student's progress related to academics and classroom functioning, or how the services supported the student in school on a daily basis. As way of an example, the hearing record contained some unexplained inconsistencies in the student's functioning within the general education classroom, with reports indicating the student was able to independently raise her hand and answer questions and was also capable of acquiring skills within a group setting, but she had difficulty working independently without 1:1 support (Parent Exs. S at p. 9; V at p. 5).  Additionally, the function of the student's behaviors was primarily escape and avoidance, with the student's shutdown behavior triggered by task difficulty or frustration and her task avoidance behavior explained as the student avoiding tasks that were challenging or anxiety-provoking (Parent Ex. U at pp. 16-17).  These types of behaviors call into question the appropriateness of the classroom setting and, although the behaviors improved during the school year at issue, there is insufficient explanation as to how they were being addressed within the classroom setting due to the lack of a description of the student's functioning in school.

Overall, given that, by definition, specially designed instruction is the adaptation of instruction to allow a student to access a general education curriculum so that the student can meet the educational standards that apply to all students (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]), the evidence in the hearing record is insufficient to demonstrate that the student's program was appropriate to meet her needs.[12]

B. Compensatory Pendency Services

The parents appeal from the IHO's decision and seek compensatory services for services the district did not implement pursuant to pendency during this proceeding.

Initially, the IHO addressed the parents' request for compensatory services during summer 2024 as a request for implementation of a pendency determination in a prior proceeding and determined that, as there was insufficient evidence that the prior matter was pending in summer 2024, there was insufficient basis to determine that the district had a pendency obligation at that time (IHO Decision at p. 7).  The parents have not challenged the IHO's determination in this regard.  Accordingly, this finding has 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]).

Turning to the parents' appeal of the IHO's decision as to pendency in this matter, as noted above, on October 8, 2024, the IHO issued a pendency decision, which indicated that an unappealed July 18, 2023 IHO decision formed the basis for the student's pendency services during this proceeding (IHO Ex. IV).  According to the IHO decision, the student's pendency program consisted of: 20 hours per week of individual SEIT services, 40 hours per week of individual, school-based ABA services, 10 hours per week of individual, home-based ABA services, four hours per week of BCBA supervision, two hours per week of parent counseling and training by a BCBA, two hours per week of case management services by a BCBA, three hours per week of individual counseling services, three hours per week of individual speech-language therapy services, three 45-minute sessions per week of individual OT, two 30-minute sessions per week of individual PT, with all services to be delivered as part of a 12-month school year and all related services to be delivered after school or on weekends, along with assistive technology equipment including a Microsoft Surface 3 and 36 hours of assistive technology training (IHO Exs. IV).  The district subsequently authorized the provision of 20 hours per week of SEIT services, 40 hours per week of individual ABA-based services in school, four hours per week of BCBA supervision, and two hours per week of BCBA case management services (Parent Ex. SS at pp. 4-6).  The district directed the parents to submit invoices under pendency in this matter for services provided from September 5, 2024 through June 30, 2025 (id. at p. 4).  The district subsequently authorized payment for 10 hours per week of home-based ABA services and two hours per week of parent counseling and training services (id. at pp. 1-3).

Overall, according to the student's father, the parents obtained the student's special education services through pendency (Parent Ex. AAA ¶¶ 39, 54-58).  However, the parents were unable to obtain OT or PT services for the student during the 2024-25 school year and counseling services, after October 1, 2024, were provided as part of a compensatory education award from a prior proceeding, rather than through pendency (id. ¶¶ 57, 59-61).  Additionally, invoices show that the student was provided with approximately three hours per week of speech-language therapy services, paid for by the parent, during the summer portion of the school year as well as from September 6, 2024 through November 27, 2024 (Parent Exs. GG-II).  The parents' attorney submitted a letter laying out the parents' request for compensatory pendency services, requesting 20 hours per week of individual SEIT services, three hours per week of speech-language therapy services, three 45-minute sessions per week of individual OT services, and two 30-minute sessions per week of individual PT services (IHO Ex. VII at p. 1).  Overall, the parents requested compensation for services missed from July 1, 2024 through December 18, 2024 consisting of 33.75 hours of OT, 25 hours of PT, five hours of speech-language therapy services, and 145.17 hours of SEIT services (id. at pp. 1-2).

Here, the IHO erred to the extent that she tied the parents' request for compensatory education due to missed pendency services to the standard for compensatory education to make up for a denial of a FAPE.  Initially, it is worth noting that "[P]endency placement and appropriate placement are separate and distinct concepts" (Mendez v. New York City Dept. of Educ., 2025 WL 2793755, at *6 [S.D.N.Y. Oct. 1, 2025], citing Bd. of Educ. Of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 459 [S.D.N.Y. 2005]).  More specifically, the Second Circuit has held that where a district fails to implement a student's pendency placement, students should receive the pendency services to which they were entitled as a compensatory remedy (E. Lyme, 790 F.3d at 456 [directing full reimbursement for unimplemented pendency services awarded because less than complete reimbursement for missed pendency services "would undermine the stay-put provision by giving the agency an incentive to ignore the stay-put obligation"]; see Student X, 2008 WL 4890440, at *25, *26 [ordering services that the district failed to implement under pendency awarded as compensatory education services where district "disregarded the 'automatic injunction' and 'absolute rule in favor of the status quo' mandated by the [IDEA] and wrongfully terminated [the student's] at-home services"] [internal citations omitted]).

However, to the extent the parent requests compensatory SEIT services, during the course of the hearing, the parent requested district funding for 20 hours per week of SEIT services provided by Kids Domain, the parents contracted with Kids Domain for the delivery of this service, and the district agreed to fund the service (Parent Exs. DD; SS at p. 4).  Additionally, the parents provided the student with speech-language therapy services during the course of the hearing, with invoices showing the delivery of speech-language therapy services by the same provider from July 1, 2024 through November 27, 2024 (Parent Exs. GG; HH).  Having arranged for and agreed to the delivery of the SEIT and speech-language therapy services by private providers, the parents elected to carry the responsibility for ensuring the delivery of those services, with the district remaining responsible only for funding the services so delivered.

Turning to the parents' request for compensatory OT and PT services, the hearing record shows that the district did not provide those services during the pendency of the proceeding and the parents did not contract for the delivery of those services.  Accordingly, an award of compensatory OT and PT services for services missed during the pendency of the proceeding is warranted.  However, although the parents identified the specific number of missed services during the hearing, the parents combined their pendency request for services missed during the pendency of this proceeding with services missed during the pendency of a prior proceeding (IHO Ex. VII).  Additionally, to the extent that services have been missed pursuant to pendency since the conclusion of the hearing, the parents have not provided a set amount of missed services on appeal.  Accordingly, the district is ordered to compute the amount of OT and PT services missed during the pendency of this proceeding and provide equivalent compensatory OT and PT services to those missed.

The parents also appeal from the IHO's denial of their request for compensatory counseling services, asserting that the counseling services delivered to the student during the pendency of this proceeding were delivered using a prior compensatory education award.  In this context, the student was entitled to counseling services during the pendency of the proceeding (IHO Ex. IV).  Accordingly, to the extent that a prior award of compensatory counseling services were not being used to remedy the past denial of a FAPE to the student, but were instead being used to provide the student's pendency program during the pendency of this proceeding, the parents are entitled to additional compensatory counseling services.  As with the OT and PT services, the district is directed to determine the amount of counseling services the student was entitled to during this proceeding and which were provided through a prior award of compensatory education and provide equivalent compensatory counseling services.

Finally, turning to the parents' request for a different assistive technology device from the one identified in the pendency decision, the parents assert that their request is not a request for enforcement of the prior IHO decision because the ordered device is no longer available for purchase.  However, review of the timelines does not support the parents' position.  Specifically, the parents contend that the end of service date for the Surface 3 device, ordered as part of the unappealed July 18, 2023 IHO decision that formed the basis for the student's pendency services during this proceeding, was November 13, 2021.  Review of the parent's evidence does show that end of servicing date for the Surface 3 was in fact November 13, 2021 (see Parent Ex. FF at p. 4).  However, the unappealed July 18, 2023 IHO decision was issued well over a year after the end of service date.  Accordingly, the parents' recourse was to appeal from the relief awarded in the July 2023 IHO decision and there has not been any change in circumstances since the issuance of the IHO decision that would warrant any modification as to pendency.

With respect to the district's cross-appeal of the IHO's directive for the district to continue the student's pendency program through the date of a reconvene of the CSE, the district is correct in asserting that the pendency provision only requires the district to fund the student's last agreed upon placement through the completion of the proceeding (see T.M., 752 F.3d at 152, 170-71 [the purpose of the pendency provision is "to maintain the educational status quo while the parties' dispute is being resolved," and it "therefore requires a school district to continue funding whatever educational placement was last agreed upon for the child until the relevant administrative and judicial proceedings are complete"]).

VII. Conclusion

In summary, the IHO's determination that the district failed to offer the student a FAPE for the 2024-25 school year is final and binding.  Additionally, the hearing record supports the IHO's finding that, taking into account the totality of the circumstances, the parents did not meet their burden of proving that the student's educational program, including placement at the nonpublic school, was appropriate for the 2024-25 school year.  However, the parents are entitled to have the student's last agreed upon placement implemented during the pendency of this proceeding and the district is obligated to provide compensatory services for services it was responsible for providing and which were missed.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO decision dated January 5, 2025, is modified by reversing that portion which found that the parents are not entitled to compensatory education for OT, PT, and counseling services missed during the pendency of this proceeding, and

IT IS FURTHER ORDERED that the district shall provide compensatory PT, OT, and counseling services for services missed during the pendency of this proceeding in accordance with the body of this decision; and

IT IS FURTHER ORDERED that the IHO decision dated January 5, 2025, is modified by vacating that portion which required the district to continue to provide pendency services until
the district reconvened a CSE.