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 to be reimbursed for their son's tuition at the Quad Preparatory School (Quad Prep) for the 2024-25 school year.  The appeal must be dismissed.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  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 consequently, a detailed recitation of the student's educational history is not necessary.  Briefly, for the 2023-24 school year the student attended Quad Prep as a fifth grade student (Dist. Ex. 1 at p. 1).  On January 26, 2024, the parents signed a "2024-25 Re-Enrollment Contract" with Quad Prep (Parent Ex. F).[1]  On January 29, 2024, a CSE convened, found the student eligible for special education services as a student with autism, and recommended that he receive: 15 periods per week of integrated co-teaching (ICT) services in English language arts (ELA); 10 periods per week of ICT services in math; five periods per week of ICT services in social studies; five periods per week of ICT services in science; one 30-minute session per week of individual counseling services; one 30-minute session per week of group occupational therapy (OT); one 30-minute session per week of individual (OT); one 30-minute session per week of individual physical therapy (PT); and two 30-minute sessions per week of group speech-language therapy (Dist. Ex. 1 at pp. 21-22).  In addition, the CSE indicated that the student required a behavioral intervention plan (BIP) and recommended he receive the support of a full-time paraprofessional in a group setting for behavior (id. at pp. 5, 22).  The CSE also recommended that the student's parents receive one 60-minute session per month of group parent counseling and training (id. at p. 21).

In a prior written notice and a school location letter, both dated July 26, 2024, the district summarized the recommendations of the January 2024 CSE and notified the parents of the particular public school site to which the student was assigned to attend for the 2024-25 school year (Dist. Exs. 4; 5).  On August 8, 2024, the parents visited the assigned public school (Parent Ex. D at pp. 2-3).

In a 10-day notice letter dated August 15, 2024, the parents, through their attorney, advised the district that the February 2024 IEP was not appropriate to meet the student's unique needs (Parent Ex. B at p. 1).  The parents asserted that the district failed to offer the student a free appropriate public education (FAPE) and notified the district of their intention to unilaterally enroll the student at Quad Prep for the 2024-25 school year and seek public funding for the cost of the student's attendance at Quad Prep (id. at pp. 1-2).[2]  Along with the 10-day notice letter, the parents provided a copy of a private neuropsychological evaluation, which reflected that the student had been assessed by a private evaluator over multiple dates in June and July 2024 (id. at p. 3; see Parent Ex. E at pp. 1-12).

In a letter dated September 3, 2024, the parents notified the district of their concerns about the recommended placement following their tour of the assigned school (Parent Ex. D at pp. 2-3).  Specifically, the parents stated that the assigned school site could not implement the IEP based on the number of available related service providers located at the assigned school site, and that the student would not be appropriately grouped, which would have a negative impact on the student (id. at p. 2).  The parents also voiced safety concerns with an alleged physical altercation that occurred two years prior to the parents' visit to the assigned school site (id.).  The parents were also concerned that the proposed school setting would not offer the student academics he required as a "twice-exceptional" student, that a significant number of students in the ICT classes would be two years below grade level academically, and that any accelerated classes at the school were not offered within the ICT setting (Parent Exs. A at p. 5; D at pp. 2-3).  The parents also noted that only half of the student's classroom periods would be staffed by a special education teacher and asserted that the student required a full-time special education setting with a qualified instructor (id.).  Lastly, the parents were also concerned that the lunch period was too short and there was "very limited staff support during the lunch period: no teachers and only support staff" (Parent Ex. D at p. 3).

A. Due Process Complaint Notice

In a due process complaint notice dated August 30, 2024, the parents listed 97 separate claims alleging that the district failed to offer the student a FAPE for the 2024-25 school year, and that the proposed program set forth in the January 2024 IEP was not "reasonably calculated" to provide meaningful educational benefits to the student (Parent Ex. A).[3]  In particular, the parents asserted that the district did not conduct adequate and appropriate evaluations of the student and failed to conduct a triennial evaluation (id. at p. 12).  Further, the parents maintained that the student's last IEP meeting was conducted on January 29, 2024, eight months prior to the start of the 10-month 2024-25 school year and did not accurately reflect the student's present levels of performance and goals (id. at p. 4).  In addition, the parents asserted that while the January 2024 IEP described some of the student's challenges and needs, it failed to provide adequate and appropriate goals to address those challenges (id. at p. 8).  Moreover, students in the proposed classroom were not similar to the student in academic or educational achievement and/or learning characteristics, social development, physical development, and management needs (id. at p. 10).  Further, the parents maintained that the services and supports provided by Quad Prep were appropriate for the student and were consistent with the neuropsychological evaluation shared by the parents (id. at p. 14).  As relief, the parents sought an order directing the district to fund and/or reimburse: the tuition and costs of Quad Prep for the 2024-25 school year; the costs of the private neuropsychological evaluation; and the costs of bus transportation for the student to and from Quad Prep (id.).

The district filed a response to the due process complaint notice dated October 11, 2024, generally denying the allegations set forth in the due process complaint notice and asserting several affirmative defenses (Dist. Response to Due Process Compl. Not.).

B. Impartial Hearing Officer Decision

After a prehearing conference on October 15, 2024, an impartial hearing convened on October 28, 2024 and concluded on November 4, 2024 before an IHO with the Office of Administrative Trials and Hearings (OATH) (Oct. 15, 2024 Tr. pp. 1-9; Tr. pp. 1-118).[4]^, [5]  In a "Corrected" decision dated January 6, 2025, the IHO first determined that the parents' allegation that the district failed to provide a timely IEP and placement offer was not supported by the evidence (IHO Decision at pp. 6-7).[6]  The IHO concluded that the district scheduled an annual CSE meeting with the parents and the district provided a prior written notice and student location letter on July 26, 2024, prior to the start of the 10-month 2024-25 school year (id.).  The IHO stated that while the parents would have preferred to have the CSE meeting closer to the start of the school year, the district was only required to review the student's IEP annually and have an IEP in place prior to the start of the school year (id. at p. 7).

Next, the IHO found that the parents' allegation that the district failed to develop an appropriate IEP for the student was not supported by the evidence at the hearing (IHO Decision at p. 7).  As to the parents' assertion that the IEP was inappropriate because the district lacked sufficient data and input including the results of a triennial evaluation of the student, the IHO concluded that based on the evidence in the record "it [wa]s unclear whether the school district was required to conduct their triennial evaluations" (id.).  The IHO found that even if the district had failed to do so, it was a procedural violation that did not rise to the level of a denial of a FAPE to the student, as the CSE relied on the student's progress reports, classroom observations from Quad Prep, and report cards (id.).

In addition, the IHO acknowledged the parents' disagreement with the recommendation for ICT services (IHO Decision at p. 7).  The IHO concluded that while the parents' desire for a smaller classroom was understandable, the CSE considered a smaller classroom size, but rejected a 12:1 special class setting as the student was excelling academically but struggled with focus (id.).  The CSE recommended ICT services for peer modeling (id. at p. 8).  The IHO noted that the district psychologist, who also served as the district representative at the January 2024 CSE meeting, acknowledged in her written testimony that although ICT services would be delivered in a larger setting of students, the special education teacher had the ability to create small break out groups based on the individual needs of the student (IHO Decision at p. 3; Dist. Ex. 11 ¶¶ 7, 16).  The IHO also acknowledged that the CSE recommended an individual behavior support paraprofessional to assist the student with redirection in order to keep the student on task and assist with difficulties during transition (IHO Decision at p. 3).[7]  The IHO concluded that while the student may have been successful in the smaller class size provided at Quad Prep, districts were not required to replicate the identical setting used in the private school (id. at p. 8).  Based on the foregoing, the IHO found that the district developed an appropriate IEP for the student for the 2024-25 school year (id.).

The IHO further concluded that the district recommended an appropriate assigned school site for the student (IHO Decision at pp. 7-9).  The IHO determined that the parents' assigned school claims were speculative (id. at p. 9).  Specifically, the IHO noted that the parents asserted their belief that the number of service providers at the assigned school site were insufficient to service the students and that the student would not be appropriately grouped with peers (id. at p. 9).  The IHO concluded that in order for such challenges to be based on more than speculation, the parents were obligated to allege that the school was "factually incapable" of implementing the IEP (id.).  Based on all of the foregoing, the IHO concluded that the district offered the student a FAPE for the 2024-25 school year (id.).

Finally, the IHO concluded that there was insufficient evidence in the hearing record to suggest that the parents were entitled to reimbursement for an independent educational evaluation (IEE) at public expense (IHO Decision at p. 9).  The IHO found there was no evidence that the parents provided their private neuropsychological evaluation report to the CSE or requested that the CSE reconvene to consider the report prior to the filing of the due process complaint notice, nor did the parents request an IEE in the due process complaint notice (id. at p. 5).  The parents only asked for reimbursement for their private neuropsychological evaluation after the fact (id.).  Based on the foregoing, the IHO dismissed the parents' due process complaint notice with prejudice (id. at p. 10).

IV. Appeal for State-Level Review

The parents appeal, alleging that the IHO erred in finding that the district offered the student a FAPE for the 2024-25 school year citing to the district's failure to conduct the student's triennial reevaluation and its reliance upon the three-page fall Quad Prep progress report and "oral reports," which were not applicable to a district school and were stale by the time the 2024-25 school year began.  The parents further assert there was nothing in the January 2024 IEP that reflects the students significant intellectual gifts.  The parents claim that because the district  failed to evaluate the student for numerous years, the parents obtained a private neuropsychological evaluation for the student, which was performed in June and July of 2024.  The neuropsychological evaluation revealed that the student was in the extremely high range of cognitive functioning and that his level of academic achievement would not be replicated in a large classroom without adequate supports.  In addition, the parents assert that there was no evidence at the impartial hearing that the CSE's recommendations could support the student's needs.  The parents maintain that the evidence established that the assigned school site was large, would be overwhelming for the student, and would be unsupportive and frightening to the student, especially during unsupervised lunch periods.  In addition, the parents argue that the IHO erred in failing to determine that Quad Prep was an appropriate unilateral placement for the 2024-25 school year, and that equitable considerations warranted an award of full funding for the cost of the student's attendance at Quad Prep.  As additional equitable relief, the parents argue that they are entitled to reimbursement for the cost of a private neuropsychological evaluation due to the district's failure to reevaluate the student for many years.

In its answer, the district argues that the IHO's decision should be upheld as the district offered the student a FAPE for the 2024-25 school year, and that equitable considerations did not favor an award of full funding for the cost of the student's attendance at Quad Prep.

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.  After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).  "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404).  The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).  Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[8]

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

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

VI. Discussion

A. FAPE - 2024-25 School Year

Turing to the substance of the parents' appeal, upon careful review, the hearing record reflects that the IHO, in a well-reasoned and well-supported decision, correctly reached the conclusion that the district offered the student a FAPE for the 2024-25 school year (IHO Decision at pp. 8, 10).  The IHO accurately recounted the facts of the case (id. at pp. 2-6), identified the issues to be resolved (id. at pp. 6-7), set forth the proper legal standard to determine whether the district offered the student a FAPE for the 2024-25 school year (id. at pp. 7-8), and applied that standard to the facts at hand (id. at pp. 7-9).  The decision shows that the IHO carefully considered the documentary evidence presented by both parties and, further, that she weighed the evidence and properly supported her conclusions.  Furthermore, an independent review of the entire hearing record reveals that the impartial hearing was conducted in a manner consistent with the requirements of due process and that there is not a sufficient basis presented on appeal to modify the determinations of the IHO (see 20 U.S.C. § 1415[g][2]; 34 CFR 300.514[b][2]).  Thus, while my reasoning may have differed from the IHO's in some respects, the conclusions of the IHO are hereby adopted.

Briefly, with respect to the parents' assertion that the January 2024 CSE failed to evaluate the student in all areas of suspected disability and failed to consider sufficient evaluative information in the development of the January 2024 IEP, the evidence in the hearing record supports the IHO's determination that the CSE considered sufficient evaluative information at the January 2024 CSE meeting and developed an appropriate IEP for the student for the 2024-25 school year (IHO Decision at p. 7).[9]^, [10]

The IHO found that the January 2024 CSE properly relied on input from the parents, as well as progress reports, classroom observations, report cards, and input from the staff of Quad Prep to determine the student's needs and present levels of educational performance (Tr. pp. 39-40; Parent Ex. J; Dist. Exs. 1 at pp. 1-4; 4 at p. 2).  The IHO further determined that any alleged failure to conduct a triennial evaluation of the student was a procedural violation of the IDEA that did not rise to the level of a denial of a FAPE.

Consistent with the IHO's findings, the October 29, 2023 Quad Prep progress report detailed the student's areas of academic strength and areas for academic growth in ELA, reading, social studies, and math, (Parent Ex. J).  The progress report indicated that in ELA, the student's areas of strength were his ability to form a topic sentence, spelling, and his understanding of sentence structure, including subject, predicate, predicate expanders, and subject describers (id. at p. 1).  The student's areas for academic growth in ELA included paragraph writing, where the student required significant support to structure his responses using provided outlines, and turning sentence fragments into full sentences, where the student struggled to add in the necessary words to make full sentences to make sense (id.).  In terms of reading, the progress report indicated the student demonstrated strengths in reading fluency and decoding and reading comprehension of nonfiction passages (id. at p. 2).  The report estimated that the student was at a grade four independent reading level and a grade five instructional reading level (id.).  Areas for academic growth in reading included the student's understanding of character traits, where the progress report indicated he struggled to use complex character traits and stuck to more basic terms; retention and recall of details from a text, where the student struggled to add to class discussions because he couldn't recall characters or events; and determining the purpose of informational texts (id.).  Turning to math, the progress report identified application of the order of operations, ability to solve expressions for a variable, and place value as areas of strength for the student (id.).  In contrast, the student's areas for growth in math included use of the distributive property, interpretation of word problems, and attention to precision and use of 7-9 and 12 multiplication/division facts (id.).  With regard to social studies, the progress report noted the student demonstrated the ability to research geographical information, construct a visual representation of geographic location, and form an opinion based on maps (id.).  The student's areas for growth in social studies related to his ability to use grade appropriate vocabulary to describe geographical features, formation of inferences about geographical regions, and the ability to make connections between geography and its impact on society (id.).

The present levels of performance of the student's January 2024 IEP included additional information regarding the student's abilities and needs, reported by his teachers and father.  The IEP stated that according to the student's reading teacher, the student was performing at a fifth grade level in reading (Dist Ex. 1 at p. 1).  However, the IEP also indicated the student had trouble remembering reading material over time, thus leading to an inconsistent ability to answer questions related to the text (id.).  The IEP noted that the student's ability to perform well in class was impacted by the classroom environment as the student was easily distracted by loud noises and stimulating surroundings (id.).  In addition, the student had difficulty participating in group discussions (id.).  The IEP indicated that according to the student's writing teacher, with support the student performed at a fourth grade level (id.).  The teacher reported the student was a good speller, used appropriate punctuation, and had good sentence structure but tended to write in a simple style and had trouble putting things into his own words, which led to the creation of fragmented sentences (id.).  As reflected in the IEP, the student's teacher further reported that he did not express his thoughts clearly, sometimes his comprehension was insufficient, and at times his word choice/vocabulary did not relate to his writing (id.).  The IEP noted the student did not like to write by hand but was good at typing (id.).  Next, the present levels of performance included information from the student's math teacher who indicated the student was performing at a fifth- to-sixth grade level in math (id. at p. 2).  According to the IEP, the student could isolate variables, knew the operation to use for a given problem, and was "good with" algebraic word problems, determining decimal places, distribution, and fraction operations (id.).  According to the IEP, during the CSE meeting, it was noted that the student needed help with math facts, persevering when problem-solving, requesting help when needed, and following instructions (id.).  The IEP stated the student was prone to making errors when he did math in his head (id.).  As detailed in the IEP, the student's father agreed with the teachers' description of the student's academic needs (id.).

Turning to the student's social development, the IEP included a summary of an oral report provided by Quad Prep (Dist. Ex. 1 at p. 2).  As detailed in the IEP, the report indicated the student liked his independence and liked being treated as an adult (id.).  He received counseling services once per week for 30 minutes and his counseling goals targeted his ability to build relationships, engage in perspective taking and increase flexibility skills, and identify and express emotions (id.).  Based on the oral report, the IEP indicated the student struggled to tolerate frustration if things did not go his way or if he was asked to do a non-preferred task (id.).  According to the IEP, the student was friendly with peers but preferred to interact with adults, and his difficulty with understanding another person's perspective could lead to disrespectful language and behavior (id.).  The IEP further indicted, as reported orally, that the student struggled with organization and needed support with executive functioning skills and with transitioning from activities and class (id. at pp. 3-4).  During non-preferred tasks and moments of frustration, the student demonstrated behaviors that caused concern, including yelling, pushing back, and disrespectful language (id. at p. 3).  As noted in the IEP, Quad Prep indicated the student exhibited concerning behaviors up to 10 times per day, and once per week the student's behavior reportedly escalated to require a more intensive intervention and adult support was needed (id.).  According to the IEP, the student did not have an individualized behavior plan, but the Quad Prep school team used the same language and supports as the school-wide behavior plan (id.).

The January 2024 IEP also included information regarding the student's related services needs.  More specifically, the IEP indicated the student received one 30-minute session of OT per week in a group social integration class that was taught in conjunction with the speech-language therapy provider (Dist. Ex. 1 at p. 3).  In addition, the student received push-in services as needed (id.).  According to the IEP, the student demonstrated strengths in fine motor skills and typing (id.).  In contrast, the student had difficulty with transitions and could become overwhelmed by loud spaces and visual distractions (id.).  The IEP indicated that the student was working on generalizing his gross motor skills to unfamiliar activities, as he could be reluctant to engage in gross motor activities in movement or "OT class" (id.).  The IEP noted that depending on the activity, the student enjoyed listening to music while learning, benefited from using fidgets or other fine motor tasks to increase motivation and attention, and also benefited from 1:1 support (id.).  The IEP further noted that the student benefited from co-regulation strategies as well as tone of voice and facial expressions, time to process directions, and explicit directions provided one at a time (id.).

Turning to the student's speech-language needs, the January 2024 IEP indicated that during therapy the student was working on perspective taking and identifying what others think/feel (Dist. Ex. 1 at p. 3).  As detailed in the IEP, the student was working on flexible thinking in collaborative problem solving, accepting others' opinions without arguing back, and participating in non-preferred activities and roles (id.).  It was reported that the student needed assistance with using humor appropriately and that he struggled with managing time and transitioning between activities (id.).  The IEP noted that the student benefited from visual supports when generating a plan (id.).  The IEP indicated that the parent was in agreement with the school speech-language therapy and OT reports (id.).

With regard to the student's behavior, the January 2024 IEP indicated the student had a behavior plan when he attended the public school "that yielded a low-level of success" (Dist. Ex. 1 at p. 4).  The IEP stated that the student "responded to messages being delivered to him in a specific way" but noted that at home he could become frustrated and physical toward his brother and that this behavior extended to other settings including summer camp (id.).  Although the special factors box related to the student's need for a behavioral intervention plan was checked "'yes" in the January 2024 IEP, the IEP includes a narrative explaining why the student did not need a BIP at that time (id. at pp. 4, 6).  According to the IEP, the CSE discussed behavior considerations and determined the student did not require a functional behavioral assessment (FBA) or BIP as the then-current supports were adequate to address the student's needs (id.).  The IEP identified the resources needed to address the student's management needs including, in addition to those detailed above, preferential seating, breaks, teacher rapport, graphic organizers and checklists, and support with social interactions (id. at p. 5).

Based on the foregoing, the hearing record supports the IHO's determination that the failure to reevaluate the student constituted a procedural violation, and that the violation did not impede the student's right to a FAPE, as the January CSE considered sufficient evaluative information in developing the January 2024 IEP.  The January CSE relied on evaluative information provided by the student's then-current providers and teachers at Quad Prep as well as information provided by the student's father during the January 2024 CSE meeting.

In their request for review, the parents also argue that the IHO relied on retrospective evidence to find the CSE developed an appropriate IEP, and further allege that the assigned school site could not support the student's needs.  The parents assert that the IHO shifted the burden of proof to the parents and erred in finding their assigned school claims were speculative.  In support of their argument that the January 2024 IEP was not appropriate, the parents continue to assert that the district's failure to evaluate the student resulted in the development of an inappropriate IEP.  The parents claim that there were no strategies to address the student's interfering behaviors, that the group paraprofessional was unsupportive and there was no sound basis for the recommendation of ICT services.  Notably, the parents have not articulated a need that was not identified by the evaluative information that was considered by the January 2024 CSE, which would warrant additional assessment.  However, contrary to the parents' claims and as described above, the January 2024 IEP included detailed information documenting the student's behavioral needs specific to his present levels of performance in the academic, social/emotional and related services domains (Dist. Ex. 1 at pp. 1-5).

With regard to the recommendation for ICT services, the parents argue that a general education classroom located in the assigned school site would be overwhelming and overstimulating, which the IHO correctly rejected as speculative.  Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88).  The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (id. at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B., 589 Fed. App'x at 576).[11]  However, a district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y. 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]).  The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP" (M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 5-6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. Mar. 16, 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. Dec. 30, 2015]).  Such challenges must be "tethered" to actual mandates in the student's IEP (see Y.F. 659 Fed. App'x at 5).  Additionally, the Second Circuit indicated that such challenges are only appropriate, if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244).  In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP (see M.E. v. New York City Dep't of Educ., 2018 WL 582601, at *12 [S.D.N.Y. Jan. 26, 2018]; Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]).  Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate (K.F. v. New York City Dep't of Educ., 2016 WL 3981370, at *13 [S.D.N.Y. Mar. 31, 2016]; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016]).

The parents claim that the IHO improperly relied on the written testimony of the district's school psychologist—who acted as the district representative at the January 2024 CSE meeting—when considering the appropriateness of the recommendation for a group paraprofessional.[12]  According to her testimony, the rationale for the recommendation was that the student's behavioral needs at Quad Prep did not warrant a BIP, and the student's providers reported that he was easily redirected (Dist. Ex. 11 ¶¶1, 7, 14).  The school psychologist further testified that the January 2024 CSE determined that an individual paraprofessional was not necessary (id. ¶14).  The school psychologist also testified that depending on the make-up of the classroom, the student's group paraprofessional "could also potentially be an individual if there [we]re no other students in the classroom that require[d] behavioral support" (id.).  The parents allege that the IHO solely relied on this aspect of the school psychologist's testimony in finding that the January 2024 IEP addressed the student's behavioral needs.  The parents' allegation does not accurately reflect the IHO's decision.  The IHO found that "[t]he CSE also recommended a behavioral paraprofessional to address attentional and behavioral needs and left the option for the paraprofessional to service the [s]tudent on a one-on-one basis" (IHO Decision at p. 8).  The IHO did not determine that the student required an individual paraprofessional, nor did the IHO rely on retrospective evidence.

In this instance, the parents' objections to the district's recommended assigned school site are impermissibly speculative as there is no evidence that the assigned school site could not meet the student's needs and implement the IEP (Tr. p. 228; see, e.g., N.M. v. New York City Dep't of Educ., 2016 WL 796857, at *8 [S.D.N.Y. Feb. 24, 2016] ["[A] claim based on what a school 'would not have' done—as opposed to a claim based on what the school could not do—is speculative and barred under R.E. and M.O."]).  Next the parents point to their private neuropsychological evaluation, which revealed that the student was in the "extremely high range" of cognitive functioning and assert that the CSE's recommendations would impede the student's level of academic achievement without adequate supports.  To the extent the parents' argument can be construed as a claim that the student would not be educated with a suitable or functional peer group, the information gleaned by the parents during their visit to the assigned school does not overcome the speculative nature of such a claim where the student never attended the proposed school placement (M.C. v. New York City Dep't of Educ., 2015 WL 4464102, at *7 [S.D.N.Y. July 15, 2015]; R.B. v. New York City Dep't of Educ., 15 F. Supp. 3d 421, 436 [S.D.N.Y. 2014], aff'd, 603 Fed. App'x 36 [2d Cir. Mar. 19, 2015]; B.K. v. New York City Dep't of Educ., 12 F. Supp. 3d 343, 371 [E.D.N.Y. 2014]; N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 590 [S.D.N.Y. 2013]; see J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *11 [S.D.N.Y. Feb. 20, 2013] [noting that the "IDEA affords the parents no right to participate in the selection of . . . their child's classmates"]).  Even assuming that the parents' understanding of the school's student body was accurate, there is no basis in the hearing record to find that the student would not have been grouped with other students consistent with State regulations, which require students to be grouped by similarity of needs, or that such a violation would impede the student's ability to receive a FAPE (8 NYCRR 200.6[a][3][h][2]).

Notwithstanding the fact that the parents' July 2024 private neuropsychological evaluation was not available to the January 2024 CSE, the parents claims that the IEP did not address the student's academic giftedness are also unavailing.  To the extent the July 2024 private evaluation recommended a different peer group for the student over and above the requirements of State regulation, the CSE did not incorporate this recommendation into the IEP,[13] and, therefore, any allegation that the school did not embody the private evaluator's recommendation represents an impermissible challenge to the appropriateness of the January 2024 IEP because such a claim would not be sufficiently tethered to an actual recommendation contained in the IEP (see N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *6 [S.D.N.Y. Feb. 11, 2016] [noting that "[t]o be a cognizable claim, i.e., one that triggers the school district's burden of proof, the 'problem' with the placement cannot be a disguised attack on the IEP; in other words, if the student ought to be placed in a school with particular characteristics, programs or services, then they should be set forth in the IEP and may not be raised as a challenge to the school placement"]).

 Furthermore, special education in this State is not designed to address a student's intellectual giftedness, rather 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]).[14] Accordingly, while it is understandable that the parents wished for the student to be placed in an environment with peers who resembled him more, particularly in regards to his higher cognitive functioning, I must review the district's recommendations in light of the district's responsibilities, which as noted above are to address the student's unique needs that result from the student's disability and to keep the student in his LRE.[15]

Based on the foregoing, there is no basis in the hearing record to disturb the IHO's conclusion that the student was offered a FAPE for the 2024-25 school year.

B. Reimbursement for Neuropsychological Evaluation

The parents next allege that as a result of the district's failure to sufficiently evaluate the student in all areas of suspected disability, they are entitled to reimbursement for their private neuropsychological evaluation as a form of equitable relief.  Having found that the district offered the student a FAPE for the 2024-25 school year, the parents are not entitled to any of their requested relief.[16]

VII. Conclusion

Based on the foregoing, I find that the evidence supports the IHO's finding that the January 2024 IEP was reasonably calculated to enable the student to receive educational benefits in light of the student's circumstances.  I further find that the parents' assigned school claims were impermissibly speculative (Endrew F., 137 S. Ct. at 1001; Gagliardo, 489 F.3d at 112; Frank G. v. Board of Educ., 459 F.3d 356, 364-65 [2d Cir. 2006]).  Having found that the district offered the student a FAPE, I need not reach the issues of whether Quad Prep was an appropriate unilateral placement for the student or whether equitable considerations supported the parents' requests for relief and the necessary inquiry is at an end (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).

THE APPEAL IS DISMISSED.