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 to be reimbursed for her son's tuition at The Gow School (Gow) for the 2024-25 school year after finding that the district offered the student an appropriate program for the 2023-24 and 2024-25 school years.  The appeal must be dismissed.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]).  First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]).  An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]).  The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]).  A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]).  The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

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

The student attended a district elementary school during the 2022-23 school year (fourth grade), where he struggled to meet grade level standards in reading and had difficulty with recalling verbal information (Parent Ex. B at pp. 1, 6-7).[1]  A CSE convened on December 21, 2022 to determine the student's initial eligibility for special education programs and services (id.).  Finding the student eligible for services as a student with a learning disability, the December 2022 CSE recommended one hour per day in a six-day cycle of integrated co-teaching (ICT) services in English language arts (ELA), one hour per day in a six-day cycle of ICT services in math, 30 minutes per day in a six-day cycle of ICT services in science, and 30 minutes per day in a six-day cycle of ICT services in social studies (id. at pp. 1, 6, 8).[2]  The December 2022 CSE also recommended one 30-minute session per six-day cycle of small group speech-language therapy (id. at p. 8).  The CSE deferred recommendation for 12-month programming during July and August "pending review" (id. at p. 10).

A CSE convened on March 21, 2023 to review the results of additional evaluations of the student (Parent Ex. C).  The March 2023 CSE continued the same recommendations for ICT services (id. at p. 11).  The March 2023 CSE also recommended one 30-minute session per six-day cycle of small group speech-language therapy, and one 30-minute session per six-day cycle of individual speech-language therapy (id.).  The March 2023 CSE did not recommend that the student receive extended school year services during July and August (id. at p. 13).

On June 21, 2023, a subcommittee of the CSE convened for an IEP amendment meeting to "include information from his most recent physical examination," and did not make any changes to the student's ICT services and speech-language therapy program (Parent Ex. V at p. 1; compare Parent Ex. C at p. 11, with Dist. Ex. 9 at p. 11).  The June 2023 CSE included the student's father and mother, the CSE chairperson, and a parent member (Dist. Ex. 9 at p. 1).

A CSE convened on August 9, 2023 for a reevaluation review and created an IEP to be implemented beginning September 8, 2023 for the 2023-24 school year (fifth grade) (see Parent Ex. D).  The August 2023 CSE continued the same recommendations for ICT services (id. at p. 14).  The August 2023 CSE also recommended two 30-minute sessions per six-day cycle of small group speech-language therapy, and one 30-minute session per six-day cycle of individual speech-language therapy (id.).  The August 2023 CSE additionally recommended assistive technology for the student, including access text-to-speech software, speech-to-text (dictation) software, word-prediction software, and headphones, and a quarterly assistive technology consultation for the student, his parents, and school staff (id. at pp. 15-16).  The August 2023 CSE did not recommend that the student receive extended school year services (id. at p. 16).[3]  The student attended a district school for the majority of the 2023-24 school year (fifth grade) (Dist. Ex. 19 at pp. 9-16; see Dist. Ex. 5).

A CSE convened on December 20, 2023 for an annual review of the student's special education program and services and created an IEP to be implemented beginning December 21, 2023 (see Parent Ex. E).  The December 2023 CSE again recommended one hour per day of ICT services in ELA, one hour per day of ICT services in math, 30 minutes per day of ICT services in science, and 30 minutes per day of ICT services in social studies, all on a six-day cycle, with one 30-minute session per six-day cycle of small group speech-language therapy, and one 30-minute session per six-day cycle of individual speech-language therapy (id. at p. 11).  The December 2023 CSE also recommended that the student have access to text-to-speech software, speech-to-text (dictation) software, word-prediction software, and headphones, and an assistive technology consultation (id. at p. 13).  The CSE did not recommend that the student receive extended school year services (id.).

On May 8, 2024, the student was involved in an incident occurring at school for which a Dignity for All Students Act (DASA) report was filed, indicating that the student was the "target" (Parent Ex. R; Dist. Ex. 18).  Effective May 22, 2024, the student was approved for a medical exemption to receive home instruction for the remainder of the school year (Dist. Ex. 5).

By letter dated May 15, 2024, Gow accepted the student for the 2024-25 school year (sixth grade) (Parent Ex. F).[4]  In an email dated July 12, 2024, the parent notified the district that it had failed "to implement and develop an appropriate" IEP for the student, and that unless the district remedied the situation within 10 days, she would be placing the student at Gow for the 2024-25 school year (Parent Ex. I).

A. Due Process Complaint Notice

In a due process complaint notice dated July 29, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 and 2024-25 school years (see Parent Ex. A).  Initially, the parent alleged that the district failed to fulfill its child find obligation under the IDEA to identify, locate, and evaluate the student (id. at p. 11).  With respect to the June 2023 CSE, the parent alleged that the district held a meeting with an improperly constituted committee that lacked necessary members, which she argued contributed to the denial of a FAPE (id. at p. 13).[5]

The parent argued that the district failed to provide the student with an appropriate IEP during the 2023-24 school year, contending that the March 2023, August 2023, and December 2023 CSEs lacked sufficient evaluative information and failed to consider all input from the parent (Parent Ex. A at pp. 9-10).  Further, the parent asserted that the resultant IEPs did not include all of the student's diagnoses or a sufficient statement of the student's present levels of performance, resulting in insufficient programs that did not address the student's specific needs, lacked appropriate or measurable annual goals, and included insufficient related services (id.).  The parent further alleged that the CSE failed to recommend extended school year services despite evidence of the student's regression and lack of academic progress (id. at p. 11).

The parent also asserted that the district failed to "faithfully implement" the student's March 2023, August 2023, and December 2023 IEPs (Parent Ex. A at p. 10).  The parent alleged that the district failed to prevent bullying and ensure the student's safety, which led to a physical assault, and that this failure constituted a denial of a FAPE (id. at p. 12).  The parent argued that, after granting a medical exemption for home instruction, the district failed to provide the mandated online learning instruction, effectively depriving the student of educational instruction (id. at p. 13).

Regarding the 2024-25 school year, the parent again argued that the district failed to develop and implement an appropriate IEP (Parent Ex. A at p. 14).[6]  The parent asserted that the December 2023 CSE did not have sufficient evaluations, failed to evaluate the student in all aspects of suspected disabilities, and failed to consider input from the parent and student's doctors (id.).  Moreover, the parent contended that the CSE failed to recommend an appropriate program, recommended insufficient related services, and failed to develop a sufficient description of the student's present levels of performance and appropriate or measurable goals (id.).  Also, the parent asserted that the district failed to recommend necessary extended school year services, and that the district violated its child find obligations (id. at pp. 15-16).

As a resolution, the parent requested an order for district funding of the student's unilateral placement at Gow for the 2024-25 school year (Parent Ex. A at p. 17).  Further, the parent requested an order for the district to develop a safety plan for transportation in conjunction with her and the student's medical providers (id.).

B. Impartial Hearing Officer Decision

An impartial hearing convened on October 15, 2024 and concluded on November 26, 2024 after nine days of proceedings (Oct. 15, 2024 Tr. pp. 1-249; Oct. 22, 2024 Tr. pp. 1-241; Oct. 29, 2024 Tr. pp. 1-212; Oct. 30, 2024 Tr. pp. 1-128; Nov. 13, 2024 Tr. pp. 1-134; Nov. 14, 2024 Tr. pp. 1-170; Nov. 18, 2024 Tr. pp. 1-114; Nov. 21, 2024 Tr. pp. 1-155; Nov. 26, 2024 Tr. pp. 1-233).  In a decision dated January 22, 2025, the IHO found that the district offered the student a FAPE for the 2023-24 and 2024-25 school years and denied the parent's request for funding for Gow for the 2024-25 school year (see IHO Decision at pp. 28-29).

The IHO found that the district did not violate its child find obligations, noting that, prior to the school years at issue, the student was identified as a child with a disability upon his return to the district from a school district out of state, and a new IEP was created for him in December 2022 (IHO Decision at p. 15).  The IHO held that there was no evidence that the student's special education needs were ignored during this period (id.).  As to the student's IEPs, the IHO determined that the CSEs developed appropriate IEPs for the student, held five meetings, addressed all areas of concern, and modified annual goals and services as requested by the parent (id. at pp. 16-17).  The IHO noted that the parent was satisfied with the IEP with the adjustments made in December 2023 (id.).

The IHO further found the parent's allegations of bullying to be without merit (IHO Decision at pp. 17-18).  In particular, the IHO found that the incident in question was a single altercation between two students, which did not constitute bullying, and that the district conducted a full investigation and offered various supports, which the parent declined (id.).  With regard to implementation, the IHO concluded that the district implemented the IEPs appropriately during the 2023-24 school year and that the student made progress in his academic areas, noting that the issues with staffing in the ICT class were promptly addressed (id. at pp. 18-21).

Although the IHO found that the district offered a FAPE, she continued to consider the appropriateness of the parent's placement at Gow and whether equitable considerations weighed in favor of the parent's requested relief (see IHO Decision at pp. 21-27).  The IHO found that the parent did not demonstrate that Gow was an appropriate placement for the student, noting that the school did not provide speech-language therapy as part of its program, and there was no evidence that Gow could meet the student's individual needs (id. at pp. 21-25).  Further, the IHO concluded that the equities did not weigh in the parent's favor, finding that the parent had decided to place the student at Gow before raising safety concerns and did not cooperate with the district's offers to address her concerns (id. at pp. 25-27).

IV. Appeal for State-Level Review

The parent appeals, arguing that the IHO erred in finding the district offered the student a FAPE and that the IHO impermissibly shifted the burden of proof to "suit her own predetermined, biased outcome."  The parent asserts that the IHO demonstrated bias and predetermined the outcome of the hearing.  In addition, the parent contends that the IHO was not "impartial," specifically regarding the unilateral placement and used an incorrect standard to assess the appropriateness of the unilateral placement.  Further, according to the parent, the IHO failed to maintain a record of the exhibits admitted and demonstrated incompetence throughout the hearing.  Additionally, the parent asserts that the district failed in its child find obligation and the IHO erred by not finding a violation.  For relief, the parent requests that the IHO order be reversed in full, and the district be directed to fund the student's placement at Gow.

In an answer, the district argues that the IHO properly found that a FAPE was offered to the student for both the 2023-24 and 2024-25 school years.  The district also asserts that the IHO applied the proper burden and standards and did not display bias.  The district argues that the parent failed to appeal the IHO's ruling with respect to equitable considerations and that, therefore, the finding should stand and not be considered on appeal.

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]).[7]

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. Scope of Review and FAPE

State regulation provides that an appeal to the Office of State Review "shall clearly specify the reasons for challenging the [IHO's] decision, identify the findings, conclusions, and orders to which exceptions are taken, or the failure or refusal to make a finding, and shall indicate what relief should be granted by the [SRO] to the petitioner" (8 NYCRR 279.4[a]).  Further, the request for review "must conform to the form requirements in section 279.8 of this Part" (8 NYCRR 279.4[a]).  Section 279.8 requires that a request for review set forth "a clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately, and identifying the precise rulings, failures to rule, or refusals to rule presented for review;" as well as "citations to the record on appeal, and identification of the relevant page number(s) in the hearing decision, hearing transcript, exhibit number or letter and, if the exhibit consists of multiple pages, the exhibit page number" (8 NYCRR 279.8[c][2]-[3]).  Generally, the failure to comply with the practice requirements of Part 279 of the State regulations may result in the rejection of the submitted documents or a determination excluding issues from the scope of review on appeal (8 NYCRR 279.8[a]; 279.13; see  Davis v. Carranza, 2021 WL 964820, at *12 [S.D.N.Y. Mar. 15, 2021] [upholding an SRO's conclusions that several claims had been abandoned by the petitioner]; M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *23 [S.D.N.Y. Sept. 28, 2018] [upholding dismissal of allegations set forth in an appeal to an SRO for "failure to identify the precise rulings presented for review and [failure] to cite to the pertinent portions of the record on appeal, as required in order to raise an issue" for review on appeal]).

Here, under the heading "Statement of Issues," the request for review lists five bolded subheadings, alleging that (1) the district failed to provide the student a FAPE and impermissibly shifted the burden of providing a FAPE onto the parent, which the IHO furthered to reach "her own predetermined, biased outcome"; (2) the IHO displayed bias and predetermined the outcome; (3) the IHO lacked competence and failed to maintain an accurate record of the hearing; (4) the district failed in its child find obligation and the IHO erred in not finding such a violation; and (5) the IHO applied an incorrect legal analysis and legal standard to determine that the unilateral placement was not appropriate.

As set forth in the first three bolded subheadings, the parent's request for review sufficiently raises on appeal allegations of IHO bias, incompetence, and predetermination, which issues will be furthered addressed below.  The parent's fourth subheading, that the district violated its child find obligations, is overbroad and conclusory.  The parent does not assert how the district failed in its child find obligations and does not identify any reasons to support the statement that the IHO erred in finding no child find obligation (Req. for Rev. at pp. 7-8).  Mere disagreement with the IHO's finding is not sufficient to preserve an issue for appeal and, while I review the evidence in the hearing record in its entirety, my role does not include making the parent's case for her based upon her overbroad, conclusory allegation.[8]  Lastly, the parent's fifth subheading in her request for review sufficiently challenges on appeal the IHO's additional finding that the parent did not demonstrate the appropriateness of the unilateral placement.

While the parent asserts in her request for review that the district failed to offer a FAPE, and then sprinkles some of the same allegations in the request for review that the parent made during the hearing and in the due process complaint notice of district or CSE errors, the parent fails to separately identify these general allegations of district wrongdoing as issues for review, allege or identify error with the IHO's precise rulings or failures to rule on such issues, or cite the hearing record in support of them in any meaningful way.

For example, in the request for review, the parent broadly alleges that "[t]he district failed to recommend an appropriate program, and [the student] did not make meaningful progress in school" and cites three exhibits reflecting the student's performance on State assessments (Req. for Rev. at p. 2, citing Parent Exs. M-O).  However, the IHO addressed the parent's allegations in this regard and found that the IEPs created by the relevant CSEs were "supported by evaluative material" and "addressed every area of concern related to the IEPs in question including modifying the goals and adding additional services when requested by the parent," noting specific examples related to the CSE adding assistive technology and increasing speech-language therapy services, and referred to the testimony and documentary evidence that reflected the student's progress (IHO Decision at pp. 16-17, 19-20).[9]  The parent makes no reference to the IHO's reasoning or assert that the IHO erred in her findings.[10]

Likewise, the parent alleges that the district "failed to faithfully and consistently implement" the student's IEPs, referring to the removal of a special education teacher from the student's classroom (Req. for Rev. at pp. 2-3) but does not refer to or argue error in the IHO's finding that the classroom was "covered at all times with a general education teacher and a special education teacher" and that issues with the one special education teacher were promptly "remedied" by the district (IHO Decision at pp. 20-21).  Further, in her appeal, the parent alleges that the district failed to prevent bullying of the student (Req. for Rev. at p. 4), but does not allege error in the IHO's specific findings that the single incident at issue did not constitute bullying and that the district conducted a full investigation and offered supports for the student, which the parent declined (IHO Decision at pp. 17-18).

State level review of an IHO's determination is not simply the relitigation of all prior arguments conceivably leveled against a party during an impartial hearing; on the contrary, it is an appellate administrative process in which the allegations must be brought forth by the party and clearly aimed at the findings in the IHO's decision (see 8 NYCRR 279.4[a]; 279.8[c][2]; cf. DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 [S.D.N.Y. 2009] [articulating a similar expectation for objections to a magistrate's report and recommendation]).  While I am tasked with conducting an independent review of the hearing record on appeal, it is not an SRO's role to research and construct the appealing parties' arguments or guess what they may have intended (see, e.g., Gross v. Town of Cicero, 619 F.3d 697, 704 [7th Cir. 2010] [appellate review does not include researching and constructing the parties' arguments]; Fera v. Baldwin Borough, 2009 WL 3634098, at *3 [3rd Cir. Nov. 4, 2009] [a party on appeal should at least identify the factual issues in dispute]; Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 [10th Cir. 2005] [generalized assertion of error on appeal is not sufficient]; see generally Taylor v. American Chemistry Council, 576 F.3d 16, 32 n.16 [1st Cir. 2009]; L.I. v. Hawaii, 2011 WL 6002623, at *9 [D. Haw. Nov. 30, 2011]; Lance v. Adams, 2011 WL 1813061, at *2 [E.D. Cal. May 6, 2011] [the tribunal need not guess at the parties' intended claims]; Bill Salter Advertising, Inc. v. City of Brewton, 2007 WL 2409819, at *4 n.3 [S.D. Ala. Aug. 23, 2007]).

Accordingly, the parent's lack of compliance regarding the requirements for pleading specificity will circumscribe the issues to be addressed in this appeal to those set forth below pertaining to the IHO's alleged bias.

While the parent has not adequately plead her appeal of the IHO's discrete findings relating to the district's offer of a FAPE to the student for the 2023-24 and 2024-25 school years, out of an abundance of caution, I have conducted an independent review of the hearing record, and, even if the parent raised the claims on appeal, 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 2023-24 and 2024-25 school years (IHO Decision at pp. 15-21).  The IHO accurately recounted the facts of the case (id. at pp. 5-14), identified the issues to be resolved (id. at pp. 4-5, 15), set forth the proper legal standard to determine whether the district offered the student a FAPE for the 2022-23 school year (id. at pp. 15) and applied that standard to the facts at hand (id. at pp. 15-29).  The decision shows that the IHO carefully considered the testimonial and documentary evidence presented by both parties and, further, that she weighed the evidence and properly supported her conclusions.  Furthermore, as discussed further below, 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]).

B. IHO Bias

With respect to the parent's allegations that the IHO displayed "implicit and explicit bias,"  to the extent that the parent disagrees with the conclusions reached by the IHO, such disagreement does not provide a basis for finding actual or apparent bias by the IHO (see Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 [2d Cir. 2009] [finding that "[g]enerally, claims of judicial bias must be based on extrajudicial matters, and adverse rulings, without more, will rarely suffice to provide a reasonable basis for questioning a judge's impartiality"]; see also Liteky v. United States, 510 U.S. 540, 555 [1994] [identifying that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion"]; Application of a Student with a Disability, Appeal No. 13-083).

It is well settled that an IHO must be fair and impartial and must avoid even the appearance of impropriety or prejudice (see, e.g., Application of a Student with a Disability, Appeal No. 12-066).  Moreover, an IHO, like a judge, must be patient, dignified, and courteous in dealings with litigants and others with whom the IHO interacts in an official capacity and must perform all duties without bias or prejudice against or in favor of any person, according each party the right to be heard, and shall not, by words or conduct, manifest bias or prejudice (e.g., Application of a Student with a Disability, Appeal No. 12-064).  An IHO may not be an employee of the district that is involved in the education or care of the child, may not have any personal or professional interest that conflicts with the IHO's objectivity, must be knowledgeable of the provisions of the IDEA and State and federal regulations and the legal interpretations of the IDEA and its implementing regulations, and must possess the knowledge and ability to conduct hearings and render and write decisions in accordance with appropriate, standard legal practice (20 U.S.C. § 1415[f][3][A]; 34 CFR 300.511[c][1]; 8 NYCRR 200.1[x]).

Here, the parent points to four statements regarding the unilateral placement made by the IHO to support her claim that the IHO was biased (Req. for Rev. at pp. 5-6).  However, review of these statements does not demonstrate that the IHO was biased or prejudiced against the parent.  A review of the entire exchange between the IHO and the parties, shows that the IHO was confused as to why the student was not yet attending Gow, which the IHO believed went to the relief the parent was seeking (Oct. 15, 2024 Tr. pp. 125-31).  The IHO's opinions regarding Gow not allowing the student to attend the school during the pendency of the hearing does not demonstrate bias, as it does not relate to the issue regarding whether the student was offered a FAPE by the district for the school years in question.  Nor does it show that the IHO had predetermined the outcome of the case.  The parent's failure to identify any other statements or actions by the IHO throughout the course of the nine impartial hearing dates further leads to a finding that the IHO acted properly and impartial  throughout the hearing.

As to the argument that the IHO failed to maintain a proper hearing record, State regulation provides that the IHO "shall exclude any evidence that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious" and "may limit examination of a witness by either party whose testimony the impartial hearing officer determines to be irrelevant, immaterial or unduly repetitious" (8 NYCRR 200.5[j][3][xii][c], [d]).  Generally, unless specifically prohibited by regulation, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]).  At the same time, the IHO is expected to ensure that the impartial hearing operates as an effective method for resolving disputes between the parents and district (Letter to Anonymous, 23 IDELR 1073).  State and federal regulations balance the interests of having a complete hearing record with the parties having sufficient opportunity to prepare their respective cases and review evidence.

Here, the parent points to a discussion between the parties and the IHO during voir dire of a witness about an exhibit (Nov. 26, 2024 Tr. pp. 98-101).  A review of this interaction does not support a finding that the IHO was "belligerent" as asserted by the parent.  Further, a review of the entire hearing record does not support the parent's contention that the IHO's management of the hearing record was incompetent or that she failed to maintain the hearing record.  Although the parent argues that the IHO "was confused as to what exhibits had been admitted into evidence," there is no allegation that the hearing record is incomplete or inaccurate (Req. for Rev. at p. 6).  The hearing record in this instance was voluminous and the hearing spanned nine days, beginning in October 2024 and ending in November 2024.

Based on the foregoing, the parent's assertion that the IHO demonstrated bias, incompetence, or predetermination is unsupported by the hearing record and must be dismissed.

VII. Conclusion

Having found no evidence of IHO bias, incompetence or predetermination and having determined that the evidence in the hearing record supports the IHO's determination that the district offered the student a FAPE for the 2023-24 and 2024-25 school years, the necessary inquiry is at an end and there is no need to reach the issues of whether Gow was an appropriate unilateral placement or whether equitable considerations weighed in favor of the parent's request for relief (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).[11]

THE APPEAL IS DISMISSED.