I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's tuition at the Manhattan Star Academy (MSA) 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 student reportedly received a diagnosis of autism at age three (Dist. Ex. 5 at p. 2).  He received bilingual early intervention and preschool special education services (Parent Ex. W ¶¶ 8, 11).  The student has attended MSA, funded by the district, since November 2017 (Parent Ex. W ¶ 17).[1]

A CSE convened on October 27, 2023 for the student's annual review and found the student continued to be eligible for special education as a student with autism (see Dist. Ex. 1).[2]^, [3]  The CSE recommended the student attend an 8:1+1 special class in a district specialized school and participate in three periods per week of adapted physical education (id. at pp. 25-26).  For related services, the CSE recommended the student receive one 30-minute session per week of individual counseling services, one 30-minute session per week of group counseling services, two 30-minute sessions per week of individual occupational therapy (OT), three 30-minute sessions per week of individual speech-language therapy, and one 30-minute session per week of group speech-language therapy (id. at p. 25).  In addition, the CSE recommended the student receive special transportation and the parent receive one 60-minute session per month of parent counseling and training (id. at pp. 25, 30).  The student was recommended for all of the above services on a 12-month basis (id. at pp. 25-26).

On May 21, 2024, the parent signed an enrollment contract with MSA for the student's attendance during the 12-month 2024-25 school year (see Parent Ex. F).[4]

In a prior written notice and a school location letter, both dated June 11, 2024, the district summarized the recommendations of the October 2023 CSE and notified the parents of the particular public school site to which it assigned the student to attend for the 2024-25 school year (Dist. Exs. 2-3).

In a letter dated June 14, 2024, the parent notified the district of her intent to unilaterally enroll the student at MSA for the 12-month 2024-25 school year (see Parent Ex. A).  The parent asserted that the district failed to offer the student a free appropriate public education (FAPE) by failing to offer him a school placement for the 2024-25 school year, failing to develop an IEP that was reasonably calculated to enable him to make meaningful progress, and failing to evaluate the student in his home language (id. at p. 1).  More specifically, the parent contended that the assigned school did not have a seat available in July 2024; the CSE recommended the same inappropriate program it had in previous years, a district 8:1+1 special class without any evidence-based approach to instruction; and failed to administer a bilingual psychoeducational assessment to the student (id. at pp. 2-3).  The parent indicated that she would be seeking district funding for the student's placement at MSA (id. at p. 3).[5]

A. Due Process Complaint Notice

In a due process complaint notice dated July 1, 2024, the parent alleged that the district denied the student a FAPE for the 2024-25 school year (see Parent Ex. B).  The parent asserted that the October 2023 IEP was "procedurally and substantially inappropriate" (id. at p. 2).  More particularly, the parent claimed that the district failed to appropriately evaluate the student as the evaluations were not conducted in the student's native language and the student's speech-language and OT needs had not been evaluated since 2017 (id. at pp. 2-3).  Moreover, the parent alleged that the IEP contained several errors regarding the identity of the student, and therefore, it was unclear whether the IEP was developed for the student (id. at p. 3).  The parent contended that, despite the recommendations of the student's then-current teacher, the district failed to adopt the class ratio the student attended at MSA and instead recommended an 8:1+1 special class in a district specialized school (id. at p. 2).  Additionally, the parent argued that the district failed to recommend appropriate methodologies on the IEP (id.).  Lastly, the parent asserted that the assigned school was not appropriate, which she had previously communicated to the district, and further the school did not have an open seat for the student (id. at p. 3).

The parent asserted that MSA was an appropriate unilateral placement and that equitable considerations weighed in favor of her request for relief (Parent Ex. B at p. 4).  The parent requested funding for the 12-month 2024-25 school year at MSA inclusive of transportation services and school meals (id.).  The parent also requested funding for a bilingual neuropsychological evaluation at the rate of $8,000, a private bilingual speech-language evaluation at the rate of $2,500, and a private OT evaluation at the rate of $2,500 (id. at pp. 4-5).[6]

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on August 20, 2024 and concluded on November 15, 2024, after three days of proceedings, inclusive of a prehearing conference (Pre-Hr'g Conf. Tr. pp. 1-12; Tr. pp. 1-118).  In a decision dated January 10, 2025, the IHO found that the district offered the student a FAPE for the 2024-25 school year (IHO Decision at pp. 12-15).  Specifically, the IHO held that bilingual evaluations were unnecessary as the student was predominantly taught in English and spoke English in school (id. at p. 14).  The IHO found that it was appropriate for the district to evaluate the student in English and that there were no indications that the student could not understand the testing he was provided (id.).  In addition, the IHO determined that the district properly identified the student's needs and created annual goals based on those needs (id. at pp. 12-13).  The IHO noted that the parent did not contest any of the academic goals and that a review of the IEP showed that it "included the required components" (id. at p. 13).  Moreover, the IHO determined that applied behavior analysis (ABA) was not a necessary methodology as the student did not exhibit any "behavioral challenges according to the record" (id.).  Regarding the alleged errors in the IEP, the IHO held that these were typographical errors that did not render the IEP substantively deficient (id.).  Overall, the IHO found that the IEP contained "detailed information about the Student's strengths, weaknesses, management needs and appropriate goals and objectives" (id. at pp. 13-14).  The IHO found that the IEP would have provided the student with an opportunity to make progress in light of his circumstances (id. at p. 14).

Lastly, the IHO held that the hearing record demonstrated that the assigned school had "the tools, personnel, and resources to implement the IEP" and noted that, absent non-speculative evidence to the contrary, it was presumed that the IEP could be implemented (IHO Decision at p. 14).  Based on these findings, the IHO dismissed the parent's due process complaint notice (id. at p. 15).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding that the district offered the student a FAPE for the 2024-25 school year.  The parent argues that the IHO did not sufficiently consider the impact of the copy of the IEP provided to the parent, which was only partially translated to the parent's language and was "rife with errors."  The parent also contends that the IHO incorrectly found that the district's evaluation of the student was sufficient notwithstanding that the psychoeducational was only conducted in English and the district did not conduct a neuropsychological evaluation or updated evaluations for the student's speech-language and OT needs.  In addition, the parent argues that the IHO erred in finding the October 2023 IEP to be reasonably calculated to enable the student to receive educational benefits in the least restrictive environment (LRE).  The parent asserts that the district failed to produce any evidence to support the CSE's recommendation for an 8:1+1 special class setting for the student in light of information that the student had been making progress in a 10:1+2 special class at MSA.  The parent further claims that the IHO erred by finding that ABA was not necessary for the student to receive educational benefit.  With respect to the assigned school, the parent argues that the October 2023 IEP could not be implemented because the student was a 12-month student, and her attorney was informed by the assigned school that it did not have a place for the student until September.  The parent contends that the district did not take any action to address this misunderstanding.  The parent asserts that, even if the school was available, it would not have the capacity to implement the IEP because it did not offer adapted physical education.

The parent contends that MSA was an appropriate unilateral placement and that equitable considerations weigh in favor of her request for relief.  As relief, that parent requests district funding for the costs of the student's tuition at MSA, in addition to funding for transportation. The parent also seeks district funding for a private bilingual neuropsychological evaluation from a specific evaluator "as well as all recommendations flowing therefrom," and private bilingual speech-language and OT evaluations from a specific agency.

In an answer, the district responds to the parent's material allegations and argues that the IHO's decision should be upheld in its entirety.[7]

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 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. Parent's Copy of IEP

To the extent that parent argues that the lack of a complete translation of the IEP into her native language impeded her ability to participate in the CSE process, the IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. §1415[b][1]).  Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]).[9]

A district is also responsible for "ensuring that a copy of the IEP is provided to the student's parents" (8 NYCRR 200.4[e][3][iv]; see 34 CFR 300.322[f]).  However, a district's failure to provide a parent with a copy of an IEP does not always rise to the level of a denial of FAPE (see Cerra, 427 F.3d at 192-94; Application of the Dep’t of Educ., Appeal No. 13-032 [failure to deliver IEP prior to start of school year did not rise to the level of a denial of a FAPE because parents had actual notice of the contents of the IEP and rejected it prior to the time that the district would have been required to implement it]).

With respect to the translation of documents into the parent's native language, both federal and State regulations require that a district ensure that consent and procedural notices are provided in the parents' native language, and provide an interpreter at all times during the impartial hearing process (see, e.g., 20 U.S.C. § 1415[b][4], [d][2]; 34 CFR 300.9[a]; 300.503[c], 300.504[d]; 8 NYCRR 154-1.3[b], 200.1[l][1], 200.4[a][9][ii]; [g][2][ii], 200.5[a][4], [f][2], [j][3][vi]).  There is no IDEA requirement for translating evaluations into a parent's native language; however, State regulations specify that a district must ensure that "the results of [an] evaluation are provided to the parents in their native language or mode of communication, unless it is clearly not feasible to do so" (8 NYCRR 200.4[b][6][xii]).  Neither the IDEA nor federal or State regulations require that a district provide parents with a copy of the IEP in their native language (Letter to Boswell, 49 IDELR 196 [OSEP 2007] [noting that while "[t]here is no requirement in IDEA or in its accompanying regulations that all IEP documents must be translated," districts are required to provide parents with full information, in their native language, of all information relevant to activities for which consent is sought]; see 34 CFR 300.9[a], 300.320; 8 NYCRR 200.1[l][1], 200.4[d][2]).[10]

In this case, it is undisputed that the native language of the parent is Spanish.  The parent presented a copy of the October 2023 IEP into evidence, which she asserts was the copy the district provided to her (Parent Ex. Y).[11]  The cover letter included with the parent's exhibit states that the attached document was a "requested translation" of the student's IEP and "should be used for reference only" and that "[i]n the event of a discrepancy, the document that prevails is the original English" (id. at p. 1).  The letter further advises that, if the parent had "questions or concerns regarding the content of th[e] document," she should contact the CSE or the student's school (id.).  The copy of the IEP attached to the letter was not fully translated into Spanish; rather only a few pages of the IEP are translated (see, e.g., id. at pp. 22, 51, 56, 61, 63).[12]  Moreover, some pages of the document have differences from the original including formatting differences, odd phrasing, and additional check boxes checked, which may reflect some errors occurred when the translation was attempted (compare Dist. Ex. 1 at pp. 4-5, 28-29, 32, with Parent Ex. Y at pp. 10, 60, 67).

As noted in the authority above, there is no State or federal requirement that an IEP be translated into the parent's native language.  However, even if the district's provision to the parent of an inadequately translated IEP constituted a procedural violation, this would not rise to the level of a denial of a FAPE because the evidence in the hearing record reflets that the parent had an opportunity to participate in the CSE process (see MB v. City Sch. Dist. of New Rochelle, 2018 WL 1609266, at *11 [S.D.N.Y. Mar. 29, 2018] [finding that the district's failure to translate all documents considered or issued by the CSEs did not deprive the student of a FAPE where the parent had the opportunity to participate in the development of the IEPs]; Y.A. v. New York City Dep't of Educ., 2016 WL 5811843, at *14 [S.D.N.Y. Sept. 21, 2016] [finding the district's "unresponsiveness to [the parent's] language barrier" deprived the parent of the opportunity to participate in the decision-making process]).

Here, the parent testified that she was able to participate in the October 2023 CSE meeting with a translator (Parent Ex. W ¶ 35).  She indicated that she did not agree with the CSE placement recommendation and expressed her disagreement at the CSE meeting (id.).   The parent also received the prior written notice and school location letter in Spanish (see Dist. Exs. 2-3).  Therefore, the evidence in the hearing does not support a finding that any translation inconsistencies or errors contained in the parent's version of the IEP in evidence, even if they were construed in toto to constitute a procedural error by the district, impeded the parent's ability to participate in the development of the student's IEP.  Likewise, the parent does not assert that any of the errors or inconsistencies in the copy of the IEP submitted into evidence by the parent, including the aforesaid translation errors, affected the parent's understanding of the CSE's program and placement recommendations for the student or her ability to voice her concerns or otherwise participate in the development of an IEP for the student for the 2024-25 school year.  Accordingly, there is no reason to disturb the IHO's findings that "the pieces of the IEP from a copy produced by the Parent that appear to be typographical errors do not render it substantively deficient" (IHO Decision at p. 13).

To the extent the parent relies on the errors in Parent Exhibit Y to allege that the assigned school would not have been able to implement the student's program, as noted above, the cover letter accompanying the "translated" IEP states that, if there was a discrepancy, the original document would prevail (Parent Ex. Y at p. 1).  The version of the IEP that the district presented as evidence does not include the discrepancies that the parent raises (see Dist. Ex. 1).  Accordingly, there is no merit to the parent's claim in this regard.  The parent's other allegations pertaining to the assigned school's capacity to implement the October 2023 IEP are discussed further below.

B. Sufficiency of Evaluative Information

With respect to the sufficiency of evaluations before the October 2023 CSE, regulations require that a district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]).  A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).  Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see S.F., 2011 WL 5419847 at *12 [S.D.N.Y. Nov. 9, 2011]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).  In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]).  A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]).  An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

The school psychologist, who also served as the district representative for the student's October 2023 CSE meeting, testified that a special education teacher and the parent were present at the meeting (Tr. pp. 34-35; see Dist. Ex. 1 at p. 33).  The June 11, 2024 prior written notice indicated that the CSE used an October 2023 psychoeducational evaluation and updated social history to develop the student's IEP, and the IEP itself indicated that the CSE reviewed a 2023 teacher report, a 2023 therapeutic goals report, and a September 2023 psychoeducational evaluation (Dist. Exs. 1 at p. 1; 2 at p. 2).[13]  Further, the school psychologist testified that the teacher report and psychological evaluation were reviewed at the CSE meeting (Tr. pp. 36-37).

The hearing record includes an August 2023 progress report from MSA, the narrative of which is reflected in the October 2023 IEP (compare Dist. Ex. 6, with Dist. Ex. 1 at pp. 4-9).  The progress report provided general information regarding the student's participation in art, music therapy, and adapted physical education, and noted that the student's academics and related services during the summer focused on maintenance of skills (Dist. Ex. 6 at pp. 1-15).  With regard to math, the MSA progress report stated that during the summer session the student worked on number sense with three-digit numbers, addition and subtraction, money management, time management, measurement, and word problems (id. at p. 5).  As related to reading, the progress report indicated instruction during the summer session addressed decoding, and also comprehending a chapter book, which included summarizing the story, identifying problems and solutions, making predictions, analyzing characters, taking characters perspectives, offering opinions, determining the main idea, determining the author's message, making inferences, and making connections (id. at pp. 5-6).  The MSA progress report specified that, in writing, the student continued to work on typing two paragraph opinion pieces when provided a graphic organizer, oral brainstorm, and teacher model, and continued to work on increasing confidence with spelling abilities (id. at p. 6).  The progress report also indicated that, as related to daily living skills, the student continued to independently follow his individual schedule, "transition to and from therapies," and complete classroom routines independently, benefited from the use of classroom timer to complete tasks, and was working on answering written and verbal questions regarding personal information (id. at p. 7).

The August 2023 MSA progress report provided information regarding the student's related services of counseling, speech-language therapy, and OT (Dist. Ex. 6 at pp. 6-15).  In counseling, the progress report indicated that the student had worked on improving advocacy by working with peers, making choices, and problem solving (id. at p. 9).  The student also worked on implementing coping skills during anxiety provoking situations through role play and group work (id.).  As related to speech-language therapy, the progress report noted that the student benefited from movement breaks, verbal redirection, and "brain in the group" supports before beginning structured and unstructured tasks (id. at p. 11).  According to the progress report, speech-language interventions during summer session focused on facilitating the student's skill maintenance in receptive, expressive, and pragmatic language as well as his phonological skills (id. at p. 12).  The progress report stated the student maintained his skills level from June 2023 with regard to his ability to understand idioms, express opinions, and auditory discrimination, and progressed in areas related to conversational skills and effective communication (id.).  The progress report also indicated the student engaged in social interactions with peers and adults with minimum supports (id.).  The progress report noted future goals should target implementing specific communication repair strategies such as sharing clarifying details and background information (id.).  As related to OT, the progress report stated the student continued to make slow steady progress toward many OT goals and had learned to tie his shoelaces during the prior reporting period and continued to practice this skill during the summer session (id. at p. 14).  In addition, the report stated the student continued to practice computer skills through functional activities such as typing emails and recipes and playing speed games (id. at p. 15).  Further, the student engaged in fine motor activities to improve hand strength and showed slow steady progress in his ability to open containers (id.).  The MSA progress report also noted that, in OT, an area of focus included improved independence during community outings such as maintaining attention to tasks to retrieve items needed for outings (id.).  As noted above, information from the August 2023 MSA progress report was reflected within the present levels of performance section of the student's October 2023 IEP (compare Dist. Ex. 1 at pp. 4-9, with Dist. Ex. 6).

The MSA progress report also provided general information as related to behavior and communication supports provided at MSA and included the student's 2023 summer schedule (Dist. Ex. 6 at pp. 16-18).  The August 2023 report further provided information regarding the 10:1+3 ratio of the student's class and listed the names and credentials of the providers including the student's special education teacher, speech-language pathologist, counselor, and occupational therapist at MSA (id. at p. 1).

Next, the October 2023 psychoeducational evaluation report reviewed by the October 2023 CSE stated that the evaluation was a reevaluation, conducted as part of a mandated review, to determine if the student continued to be eligible for special education services and, if so, to determine the services he needed to meet his educational needs (Dist. Ex. 4 at p. 1).  The initial section of the report included background information that the student had a classification of autism per the then most recent November 2021 IEP and was recommended for placement in an 8:1+1 special class as well as related services (id.).  The October 2023 psychoeducational evaluation report included behavior observations of the student during testing that characterized him as "easygoing and cooperative" and noted that he "spoke using simple sentences and answered questions when asked, but . . . did not sustain reciprocal conversation" (id.).  The school psychologist who evaluated the student reported that during testing the student appeared motivated to do well, attempted all tasks, appeared to put forth effort in responses, often asked "[i]s this right?," and responded positively to encouragement (id.; see Dist. Ex. 7 at p. 12).  The evaluator concluded that the student's attention and focus were within normal limits and results of the psychoeducational evaluation were a valid representation of the student's functioning (Dist. Ex. 4 at p. 1).  On the Wechsler Intelligence Scale for Children – Fifth Edition (WISC-V), the student obtained a full-scale intelligence quotient (FSIQ) of 68, in the extremely low range of cognitive functioning (id. at pp. 1-2).  According to the evaluation report, the student's performance across cognitive domains ranged from very low to extremely low (id. at pp. 2-3, 4, 5).  The student's academic achievement was assessed using the Woodcock Johnson Tests of Achievement – Fourth Edition (WJ-IV ACH) on which the student performed in the very low range on the reading cluster, very low range on the mathematics cluster and, low range on the written language cluster (id. at p. 5).  On the WJ-IV ACH cluster tests in reading, mathematics and written language, the student received standard scores of 62, 43, and 70, respectively (id. at pp. 3-4).  More specifically, in the area of reading, the student received standard scores of 70 in letter-word identification and 53 in passage comprehension; in mathematics, the student received standard scores of 44 in applied problems and 50 in calculation; and, in written language, the student received standard scores of 67 in spelling and 81 in writing samples (id.).

In the area of social/emotional assessment, the October 2023 psychoeducational evaluation stated that the student reported generally feeling happy, identified his favorite activities such as playing with blocks and toy vehicles, and noted gym to be his favorite class (Dist. Ex. 4 at p. 3).  The evaluation further reported the student shared his struggles with math and stated someday he wanted to become a firefighter (id.).  In relation to peers, the student reported that his best friend smiled and played tag with him, and he denied any social struggles (id.).  The October 2023 IEP incorporated information from the October 2023 psychoeducational evaluation report in the present levels of performance as it related to evaluation results, academics, and social development (compare Dist. Ex. 1, with Dist. Ex. 4).

The hearing record also includes an October 2023 social history update reviewed by the October 2023 CSE (see Dist. Ex. 5).  According to the update, the parent shared that, since the last social history conducted in 2017, the student "[wa]s more independent, [wa]s following directions more frequently, and ha[d] made a lot of progress" (id. at p. 1).  As related to academics, the social history update reflected the parent's report that the student could read and write, although struggled writing on the line, could add and subtract in math, and followed classroom routines well (id.).  Additionally, the updated social history provided health related information including the student's diagnosis of autism at age three, as well as parent report of renewed concerns with the student's obsession with cleanliness, inability to write within the lines, distractibility and attention issues, and recent engagement in repetitive movements (id. at p. 2).  The social history indicated the student got along well with his teacher and peers at school and had learned to initiate interactions with peers (id. at p. 1).  Further, the social history report stated teachers described the student as humane, peaceful, calm, respectful, and a good kid with "no behavior concerns reported," with a similar report of the student's behavior at home (id.).  This information was reflected within the student's October 2023 IEP in areas related to academics, social development, and physical development (compare Dist. Ex. 1 at pp. 6-9, with Dist. Ex. 5).

Taking into account the foregoing, the evidence in the hearing record reflects that the CSE had information before it related to the student's academic and cognitive needs gleaned from the October 2023 psychoeducational evaluation, as well information related to the student's functioning at his private school in academics and related service areas of speech-language therapy, OT, and counseling.

The parent asserts that the CSE failed to adequately assess the student, specifically by failing to conduct a bilingual neuropsychological evaluation or bilingual speech-language and OT evaluations.  In arguing that the IHO erred in finding the district's evaluation of the student to be adequate, the parent claims that the IHO failed to consider the difference between a psychological evaluation and neuropsychological evaluation.  While the private neuropsychologist and MSA hearing coordinator both testified that a bilingual psychoeducational evaluation would be beneficial to an assessment of the student's abilities and deficits (Tr. pp. 67-70, 96) neither individual participated in the October 2023 CSE meeting (Dist. Ex. at p. 33), and there was no indication in the information available to the October 2023 CSE that additional evaluations of the student were warranted.[14]  Not does the parent identify specific areas of need that were not sufficiently evaluated due to the lack of a neuropsychological evaluation; rather, she relies on the conclusory testimony of the private neuropsychologist that a neuropsychological evaluation was more appropriate for students with a diagnosis of autism (Tr. pp. 70-71).  While the parent may have felt that related service evaluations as well as a neuropsychological evaluation would have been the best sources to determine the student's functioning, "[t]he IDEA does not compel a school district to perform every sort of test that would arguably be helpful before devising an IEP" (Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 373 F. Supp. 2d 292, 299 [S.D.N.Y. 2005]), and the district's failure to conduct these evaluations does not render the IEP legally inadequate in light of the full description of the student's needs set forth in the IEP (see Phillips v. Banks, 2024 WL 1208954, at *2 [2d Cir. Mar. 21, 2024]).

As a final matter, the parent also contends that the IHO erred in finding that the psychoeducational evaluation as conducted in English was appropriate, even though multiple sources indicated the student's native language was Spanish.  Evaluations must be "provided and administered in the student's native language or other mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to so provide or administer" (8 NYCRR 200.4[b][6][i][a]; see 34 CFR 300.304[c][ii]; see also 8 NYCRR 200.1[bb] [defining an individual psychological evaluation]).  State regulation defines native language "[i]f used with reference to an individual of limited English proficiency, [as] the language normally used by that individual, or, in the case of a student, [as] the language normally used by the parents of the student, except that, in all direct contact with a student (including evaluation of the student), native language means the language normally used by the student in the home or learning environment" (8 NYCRR 200.1[ff][1] [emphasis in the original]).[15]

Although, the parent shared that Spanish was her primary language and that the student spoke "both Spanish and English" in the home (Parent Ex. W ¶ 6), the hearing record reflects that the student received instruction at MSA in English since his initial attendance at MSA beginning in November 2017 of his kindergarten school year (Tr. pp. 66, 91-92; Parent Exs. B at p. 2; T ¶ 57; W ¶ 19).[16]  Further, the October 2023 IEP states that his "language of service" for purposes of his special education and related services was English, and the parent has not challenged that designation (Dist. Ex. 1 at p. 25).  As such, the hearing record supports a finding that the student normally used English in the learning environment and, therefore, the October 2023 psychoeducational evaluation was not inappropriate for having been conducted in English.

C. October 2023 IEP

1. 8:1+1 Special Class

Turning next to the parties' dispute over the IEP's proposed setting for the student, State regulations provide that a special class placement with a maximum class size not to exceed eight students, staffed with one or more supplementary school personnel, is designed for "students whose management needs are determined to be intensive, and requiring a significant degree of individualized attention and intervention" (8 NYCRR 200.6[h][4][ii][b]).  Management needs, in turn, are defined as "the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction" and shall be determined in accordance with the factors identified in the areas of academic achievement, functional performance and learning characteristics, and social and physical development (8 NYCRR 200.1[ww][3][i][d]).

The CSE recommended instructional strategies to address the student's management needs.  Specifically, the IEP indicated the student required minimal visual and auditory distractions; a visual schedule; small group size; explicit verbal and visual directions; limited distraction in work environments; verbal and visual prompts to stay on task; extra time to complete written tasks; teacher modeling and guided practice activities; preferential seating at the front of the room; and, extra time to complete written task (Dist. Ex. 1 at p. 9).  The October 2023 IEP recommended the student's placement in an 8:1+1 special class (Dist. Ex. 1 at p. 25).  According to the June 2024 prior written notice, and as reported in the October 2023 IEP, the CSE considered a 6:1+1 special class setting and a State-approved nonpublic school for the student; however, it rejected both of these options as the student did "not need such intensive specialized instruction to address his educational needs" (Dist. Exs. 1 at p. 33; 2 at p. 2).

In addition to the 8:1+1 special class, the October 2023 IEP recommended the student receive adapted physical education along with related services of counseling, OT, and speech-language therapy (Dist. Ex. 1 at p. 25).  The October 2023 IEP provided a goal that addressed increasing the student's independence in navigating the school environment with minimal support as observed by the student's teacher, as well as providing social/emotional development goals to be addressed by the school counselor (see id. at pp. 15-18).  Further, the IEP included speech language therapy goals to apply strategies to improve social competencies, communications skills, self-advocacy skills, repair communication breakdowns and sustain conversational exchanges to enhance the student's social communication skills (see id. at pp. 19-20).

At the impartial hearing, the district school psychologist testified that the October 2023 CSE recommended an 8:1+1 special class for the student as he functioned on a second-grade level in reading and math and knew letters and numbers and the CSE felt the class would be a good match for the student (Tr. pp. 38-39).  The school psychologist reported that students found in a district 8:1+1 special class were usually on the autism spectrum or multiply disabled and had some sense of academics and a little language (id.).  Further, the school psychologist reported the CSE "felt [the student] could succeed in that class" (id.).  The school psychologist explained that an 8:1+1 special class would be beneficial for the student because it provided a 4:1 student-to-staff ratio and the student would get "the academics and get the social skills with the counseling, OT and speech . . . for that program" (Tr. pp. 39-40).

In asserting that an 8:1+1 special class was not appropriate, the parent argues that the student was thriving in a 10:1+2 special class setting and "no longer need[ed] the support of a more restrictive setting" (Parent Mem. of Law at p. 11).  The parent shared that, when the student began at MSA, he attended a class with an 8:1+2 ratio but that, "[a]s he progressed, he . . . advanced to a class of 10 students in 2022" (Parent Ex. W ¶ 32).  Further, the hearing coordinator at MSA testified that the student made progress academically, socially and emotionally at MSA and, therefore, he was moved from a 10:1+3 special class to a 10:1+2 special class with peers that served as positive peer models and were more independent and did not require the support of three teaching assistants (Parent Ex. T ¶ 35).[17]

Initially, while the parent preferred that the special class ratio as well as the specific peer grouping provided at MSA, districts are not required to replicate the identical setting used in private schools (see, e.g., M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *28 [S.D.N.Y. Sept. 28, 2018]; Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, at *6 [N.D.N.Y. June 19, 2009]; Watson v. Kingston City Sch. Dist, 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004]).  Moreover, to the extent the parent argues that the 8:1+1 special class recommended by the CSE was more "restrictive" than the 10:1+2 special class at MSA, this conflates the degree of adult support per disabled student within a classroom compared to the student's placement in the LRE, the latter which relates to the disabled student's opportunities to interact with nondisabled peers (see R.B. v. New York Dep't of Educ., 603 Fed App'x 36, 40 [2d Cir. Mar. 19, 2015] [stating that "[t]he requirement that students be educated in the least restrictive environment applies to the type of classroom setting, not the level of additional support a student receives within a placement"; T.C. v. New York City Dep't of Educ., 2016 WL 1261137 at *13 [S.D.N.Y. Mar. 30, 2016] [finding that the IHO's application of LRE requirement to a ratio dispute was improper, stating that "[a] less restrictive environment refers to the ratio of special education to general education students in the same classroom, not the ratio of special education students to teachers"]).  Finally, both the 8:1+1 special class and a 10:1+2 special class reflected a ratio of three to four students per adult in the classroom, representing a comparable level of adult support available in the classroom.

Accordingly, based on the above, I find there to be sufficient evidence in the hearing record that the October 2023 CSE's recommendation for an 8:1+1 special class, in addition to related services, was reasonably calculated to provide the student with educational  benefits to meet his individual needs.

2. Methodology

I will next address the parent's allegation that the IHO erred in finding that it was not necessary for the October 2023 CSE to recommend ABA.  Generally, an IEP is not required to specify the methodologies used with a student and the precise teaching methodologies to be used by a student's teacher are usually a matter to be left to the teacher's discretion—absent evidence that a specific methodology is necessary (Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 [2d Cir. Oct. 29, 2014]; A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 [2d Cir. July 29, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 192-94; M.H., 685 F.3d at 257).  As long as any methodologies referenced in a student's IEP are "appropriate to the [student's] needs," the omission of a particular methodology is not necessarily a procedural violation (R.B., 589 Fed. App'x at 576 [upholding an IEP when there was no evidence that the student "could not make progress with another methodology"], citing 34 CFR 300.39[a][3] and R.E., 694 F.3d at 192-94).  Indeed, a CSE should take care to avoid restricting school district teachers and providers to using only the specific methodologies listed in a student's IEP unless the CSE believes such a restriction is necessary in order to provide the student a FAPE.  However, when the use of a specific methodology is required for a student to receive an educational benefit, the student's IEP should so indicate (see, e.g., R.E., 694 F.3d at 194 [finding an IEP substantively inadequate where there was "clear consensus" that a student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee" of the use of this methodology]).  If the evaluative materials before the CSE recommend a particular methodology, there are no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member (i.e. school psychologist) to rely on a broader approach by leaving the methodological question to the discretion of the teacher implementing the IEP (A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017]).  The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate the "clear consensus" (R.E., 694 F.3d at 194).

Here, although the parent makes a general assertion that the student requires ABA as an instructional methodology, the information before the October 2023 CSE did not present a clear consensus that the student required ABA to be placed on the IEP.  The parent argues that the student was receiving benefit from instruction at MSA that used ABA "as a core component of instruction" and that, therefore, the CSE should have adopted the same approach in the student's IEP (Parent Mem. of Law at p. 18).  However, the evidence in the hearing record demonstrates that MSA was an eclectic program that borrowed from diverse methodologies rather than strictly adhering to ABA methodology to the exclusion of others, which tends to undermine the parent's view that the October 2023 CSE should have recommended ABA methodology for the student, to the exclusion of other approaches, based on the reports from MSA.

In particular, the MSA hearing coordinator explained that to "support [MSA's] students' behavioral needs, [the school] employ[ed] Applied Behavioral Analysis ('ABA'), TEACCH [Treatment and Education of Autistic and Related Communication Handicapped Children], and Floortime models depending on the student's individual needs" (Parent Ex. T ¶ 18).  The hearing coordinator reported that MSA had a Board Certified Behavior Analyst (BCBA) and a behavioral assistant on staff "to monitor, evaluate, intervene, train, and support our students and staff" (id.).[18]  The August 2023 MSA progress report stated that behavioral support was provided at MSA for all students and staff members and that support included having a BCBA and behavioral assistant on staff who were also certified in "crisis management" (Dist. Ex. 6 at p. 16).

According to affidavit testimony, the MSA hearing coordinator specified that "[the student wa]s taught with ABA methods so that tasks [we]re broken . . . down into simple steps" (Parent Ex. T ¶ 55).  She noted that the student required repeated exposure to a target to master a skill, and he benefited from repetition and consistency (id.).  The August 2023 progress report included a general statement that the BCBA and behavioral assistant on staff provided support that included daily check-ins and visits with the classroom team, attending all classroom team meetings and facilitating staff professional development, and training staff in behavioral techniques during real-time scenarios across a multitude of different areas (Dist. Ex. 6 at p. 16).  The progress report further indicated that the BCBA and behavioral assistant provided outside support in collaboration with outside service providers, facilitating parent support groups and providing workshops and training to caregivers (id.).  The progress report also indicated that "all students [we]re provided with universal proactive and reactive support that addresse[d] all reasons they may be engaging in behaviors of concern" (id.).[19]

However, neither the progress report nor hearing coordinator's testimony shed light on how the BCBA or behavioral assistant planned for or instructed the student or consulted with his teacher.  In addition, other than breaking tasks down into simple steps and providing the student with repeated exposure, there is nothing in the parent's evidence that explains how basic behavioral practices were applied or systemic data tracking methods were employed when working with the student– the primary elements of ABA as defined by the MSA hearing coordinator (see Parent Ex. T ¶ 19; see generally Dist. Ex. 6).  Rather, while the special education and related service providers may have provided some of the general/universal proactive and reactive behavior supports within the classroom setting as listed by the BCBA such as movement breaks, the providers reported supports provided for targeted goals not included on this general list such as scaffolding, teacher-led discussion supports, verbal redirection and teacher modeling, demonstrating that the direct providers did not exclusively or primarily rely on ABA to support the student in the classroom (see Dist. Ex. 6 at pp. 5-7, 11, 14-15, 16-17).  Further, the hearing record lacked evidence related to  the student's response to the ABA methodology, and the progress reports included updates from specialists without ABA certification which did not indicate that the student needed ABA in order to access his educational program.  These reports, provided by the student's special education teacher, counselor, speech-language pathologist, and occupational therapist, detailed progress in math, reading, writing, daily living skills, social skills, emotional regulation, language skills, and fine motor skills, along with goals met without referencing the use of ABA (Dist. Ex. 6).

Moreover, the October 2023 IEP incorporated several of the MSA general behavior classroom supports identified in the August 2023 progress report as strategies to address the student's management needs and as incorporated into the student's related services goals including: use of a daily schedule, promoting opportunities for social communication, and ensuring complex tasks were broken down into simpler components (compare Dist. Ex. 1 at pp. 9, 12-13, 16-20, with Dist. Ex. 6 at p. 16).

Accordingly, upon review of the evidence, I find that the hearing record does not include evidence that the student needed a specific methodology to address his educational needs or that there was a general consensus that the student needed ABA in order to obtain educational benefit.

D. Assigned School

Turning to the parent's claims about the assigned school's capacity to implement the October 2023 IEP during the 2024-25 school year, 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" (R.E., 694 F.3d 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. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]).  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, 6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. 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 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., 2016 WL 3981370, at *13; 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]).

Here, the parent alleges that the assigned school would not have been able to implement the student's IEP for the 2024-25 school year (Req. for Rev. ¶ 12).  In support of this allegation, the parent indicates that her "advocate" called the assigned school and was told that there was no seat for the student until September 2024 (see Parent Ex. W ¶ 37).  The parent also cites to the June 11, 2024 prior written notice, which she asserts indicated the student was recommended for a ten-month placement, starting in September and ending in June.  However, a careful read of the prior written notice shows that it also reflected the CSE's recommendation for extended school year services for July and August (Dist. Ex. 2 at pp. 1-2).

The district assistant principal at the assigned school testified that the school had a seventh grade 8:1+1 special class and for the 2024-25 school year the class had three paraprofessionals assigned in addition to the teacher (Tr. p. 57).  The assistant principal further testified that the special class had a seat available to the student in July 2024, and at the time of her testimony in November 2024 still did, as the class was not full, with four seats available (id.).  The assistant principal reported there were two 8:1+1 special classes for the 2024-25 school year with students functioning between kindergarten and fourth grade so that one class had students that functioned at the kindergarten to second grade level, and the other from second to fourth grade level (Tr. p. 58).  The assistant principal testified that the teacher ensured work was differentiated based on the students' functioning levels and ensured that students' IEP goals were followed (Tr. p. 57).  Further, the assistant principal testified that the school offered related services as indicated on students' IEPs and the school program also had a gardening program, as well as cooking and swimming programs (Tr. pp. 57-58).  Moreover, the assistant principal testified that providing 1:1 instruction for students was part of the 8:1+1 special class program (Tr. p. 58).

Based on the above information, notwithstanding the hearsay testimony of the parent regarding her "advocate's" conversation with the assigned school, the weight of the evidence supports a finding that the assigned school had space available for the student as of the beginning of the 12-month school year.

The parent also alleges that the assigned school did not offer adapted physical education.  The student's IEP mandated three periods per week of adapted physical education with the location being "Other Facility Gym" (Dist. Ex. 1 at p. 25).  Consistent with this recommendation, the district assistant principal testified that, although the assigned school did not offer adapted physical education at the "main site," it did have "another location" and the school would have been able to implement the student's IEP (Tr. pp. 60-61).

Based on the foregoing, the hearing record supports a finding that the assigned school had the capacity to implement the student's IEP.

VII. Conclusion

Having found that the district offered the student a FAPE for the 2024-25 school year, the necessary inquiry is at an end, the necessary inquiry is at an end and there is no need to reach the issues of whether MSA was an appropriate unilateral placement for the student or whether equitable considerations support an award of tuition funding (Burlington, 471 U.S. at 370). 

THE APPEAL IS DISMISSED.