25-138

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which found that respondent (the district) offered the student appropriate programming and denied their request to be reimbursed for their son's tuition at the Pathway Study Center, Inc. (Pathway) for the 2022-23 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 in this matter began attending Pathway in September 2018 and continued his attendance through the 2022-23 school year (Parent Exs. L ¶ 11; M ¶ 4).[1]

On May 19, 2022, the CSE convened and found the student eligible for special education services as a student with a speech or language impairment (see generally Parent Ex. B).[2], [3]  The May 2022 CSE developed an IEP for the student with an implementation date of September 8, 2022, which recommended a 12:1 special class placement for math, English language arts (ELA), social studies, and science instruction together with related services of one 30-minute session per week of group counseling services, two 30-minute sessions per week of individual occupational therapy (OT), and two 30-minute sessions per week of individual speech-language therapy (Parent Ex. B at pp. 12-13, 17-18).  The May 2022 CSE also recommended testing accommodations and special transportation accommodations/services (id. at pp. 14, 17).  The district sent the parents a prior written notice of recommendation and school location letter dated July 14, 2022 (see Dist. Exs. 2-3).

On August 18, 2022, the parents notified the district of their disagreement with the May 2022 IEP and their concerns regarding the appropriateness of the assigned public school (Parent Ex. C at p. 1).  Additionally, the parents advised that unless the district recommended an appropriate program for the student, they intended to unilaterally place the student at Pathway for the 2022-23 school year (id. at pp. 1-2).

On September 6, 2022, the parents entered into a tuition contract with Pathway for the student's attendance for the 2022-23 school year (fourth grade) (see Parent Exs. B at p. 1; I).

A. Due Process Complaint Notice

In a due process complaint notice dated May 17, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23 school year (see generally Parent Ex. A).

More specifically, the parents alleged procedural and substantive deficiencies in connection with the May 2022 CSE meeting and IEP as follows: the CSE failed to evaluate the student in all areas of suspected disability; the May 2022 CSE failed to include a regular education teacher; the IEP lacked sufficient annual goals and the goals included were vague, unmeasurable, or inappropriate; the CSE failed to consider the recommendations from Pathway despite reliance on information provided by Pathway; the CSE failed to "meaningfully" consider the parents' requests for programming; the CSE failed to consider placement at Pathway or a similar program; the district predetermined the student's program;  the CSE failed to consider the full continuum of services; the recommended 12:1 special class was "too large" for the student and the recommendations did not provide sufficient services, supports, or accommodations; the CSE failed to recommend parent counseling and training; and the assigned school could not implement the student's management needs(Parent Ex. A at pp. 2-3).  Furthermore, the parents alleged that Pathway was an appropriate unilateral placement for the student and equitable considerations would not preclude an award of direct funding or tuition reimbursement (id. at p. 2).  As relief, the parents requested reimbursement/direct funding of the tuition, costs, and expenses for the student's attendance at Pathway for the 2022-23 school year (id. at p. 4).

B. Impartial Hearing Officer Decision

After a prehearing conference on September 19, 2024 (Sept. 14, 2024 Tr. pp. 1-10), an impartial hearing convened before an IHO from the Office of Administrative Trials and Hearings (OATH) on December 10, 2024 (Dec. 10, 2024 Tr. pp. 1-87).[4]

In a decision dated January 23, 2025, the IHO found that the district offered the student a FAPE for the 2022-23 school year, that Pathway was an appropriate unilateral placement for the student, and that equitable considerations did not favor awarding funding for the costs of the student's tuition, and, accordingly, the IHO denied the parents' requested relief (IHO Decision at pp. 6-14).

In connection with determining whether the district offered the student a FAPE, the IHO first addressed the procedural violations alleged by the parents and determined that the CSE had "sufficient evaluative data" to make recommendations for the student (IHO Decision at pp. 6-8).  The IHO stated that the CSE relied on a psychoeducational evaluation report and information from Pathway in developing the recommendations for the student (id. at p. 7).  Further, the IHO found that the evidence in the hearing record did not support the need for a functional behavioral assessment (FBA) or development of a behavioral intervention plan (BIP) (id.).  In addition, the IHO found no evidence in the hearing record that the CSE did not consider information from the student's teachers or providers, that the CSE predetermined its recommendations, that the CSE failed to consider the "full continuum of programming," or that the parents were denied meaningful opportunity to participate in the development of the student's IEP (id. at pp. 7-8).  The IHO also found that the CSE included all of the required participants and, specifically, a regular education teacher was not required because the CSE was not considering placing the student in a general education setting (id. at p. 8).

The IHO next considered the substantive allegations made by the parents (IHO Decision at pp. 9-12).  The IHO found that the information presented to the CSE from Pathway was considered and some recommendations were included within the student's IEP, although the information was identified in different components or terminology in the IEP (id. at p. 9).  With respect to the recommendation for a 12:1 special class, the IHO found the testimony of the school psychologist credible and that it supported finding that the CSE provided a sufficient rationale as to why the recommended special class would have provided the student with a FAPE (id. at p. 10).  The IHO also found that the IEP included "critical components" of the program at Pathway including the student's present levels of performance (id.).  In addition, the IHO found that the annual goals addressed each of the student's needs (id.).  Furthermore, the IHO found that the parents' allegations were speculative as to whether the assigned school could implement the IEP (id. at p. 11).  Overall, the IHO found that all of the parents' procedural and substantive allegations were not supported by the hearing record, and the May 2022 IEP offered the student a FAPE in the least restrictive environment (LRE) (id. at p. 12).

Although the IHO found that the district offered the student a FAPE, the IHO analyzed whether Pathway was an appropriate unilateral placement for the student and found that the program at Pathway was reasonably calculated to enable the student to make progress (IHO Decision at pp. 12-13).  In terms of equitable considerations, the IHO found that some factors did favor the parents, such as the provision of a timely ten-day notice, but because the Pathway program offered a similar program to the district's recommended program, the IHO determined that "equitable considerations tip[ped] away from [the] parent[s]" as placing the student in a nonpublic school "was not justified under the[] circumstances" (id. at p. 14).

IV. Appeal for State-Level Review

The parents appeal, alleging that the IHO erred in finding the district offered the student a FAPE for the 2022-23 school year and in finding equitable considerations did not weigh in the parents' favor.  The parents' initial argument is that the IHO's decision "contains multiple mistakes" with respect to facts in the hearing record which should be considered reversable error.[5]  In addition, the parents assert that the IHO erred in relying on the testimony of the district school psychologist and in finding that testimony credible while disregarding the testimony of the student coordinator at Pathway.  Further, according to the parents, the IHO erred in applying an incorrect legal analysis to the parents' allegations related to predetermination and to the parents' right to visit the assigned school.  Next, the parents assert that the district bore the burden of proof during the hearing and raise allegations that the "IHO ignored and/or glossed over evidence" that the district did not sufficiently evaluate the student or convene a full CSE, that the district did not explain "why it glossed over and ignored Pathway's and [the student's] parents' concerns regarding the program offered," that "the IHO inexplicably ignored" the testimony of the student coordinator at Pathway as to why the recommended 12:1 special class was not appropriate for the student and the related services were insufficient, and that the "IHO ignored and/or glossed over evidence" as to predetermination and the district's burden of demonstrating the appropriateness of its program.[6]  Lastly, the parents claim that the equitable considerations weighed in their favor.  As relief, the parents request reimbursement/direct funding of the tuition, costs, and expenses relating to the student's attendance at Pathway for the 2022-23 school year.

In an answer, the district argues that the evidence in the hearing record supports the IHO's finding that that the district offered the student a FAPE for the 2022-23 school year. [7]  The district contends that the parents' argument in their memorandum of law regarding an FBA and BIP were not in the request for review and, therefore, those arguments should be disregarded.[8]  The district seeks to uphold the IHO's finding that it offered the student a FAPE for the 2022-23 school year.

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]).[9]

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

Upon careful review, the hearing record reflects that the IHO, in a well-reasoned and well-supported decision, correctly reached the conclusion that the district offered the student a FAPE for the 2022-23 school year (IHO Decision at pp. 6-12, 14).  Although there were some factual inconsistencies as noted by the parents in their request for review, for the most part, the IHO accurately recounted the facts of the case (id. at pp. 4-5), identified the issues to be resolved (id. at pp. 6-12), et forth the proper legal standard to determine whether the district offered the student a FAPE for the 2022-23 school year (id. at pp. 5-6, 9) and applied that standard to the facts at hand (id. at pp. 6-12).  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, an independent review of the entire hearing record reveals that the impartial hearing was conducted in a manner consistent with the requirements of due process and that there is not a sufficient basis presented on appeal to modify the determinations of the IHO (see 20 U.S.C. § 1415[g][2]; 34 CFR 300.514[b][2]).  Thus, as explained below, the conclusions of the IHO described above are hereby adopted with additional discussion of the parents' allegations on appeal noted below.

A. May 19, 2022 CSE Process and IEP

Initially, the parents argue that the IHO's findings "were contrary to the evidence and the weight of the testimony" (Req. for Rev. ¶ 22).  In connection therewith, they argue that although the IHO found the testimony of the school psychologist was credible with respect to consideration of information and development of the IEP, the school psychologist lacked familiarity with the student and relied on "very little probative evidence" to develop the IEP (id.).  The IHO found the school psychologist's testimony credible as related to the CSE's reliance on data collected from Pathway, and use of the Pathway information and data to create the student's educational program (IHO Decision at p. 7).

However, to the extent that the parents agree or disagree with the IHO's findings of fact, it is based on the weight accorded to the evidence, not specific findings by the IHO that one or more of the witnesses specifically failed to offer credible testimony (see L.K. v. Ne Sch. Dist., 932 F. Supp. 2d 467, 487-88 [S.D.N.Y. 2013]; E.C. v. Bd. of Educ. of City Sch. Dist. of New Rochelle, 2013 WL 1091321, at *18 [S.D.N.Y. Mar. 15, 2013]; J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *9-*10 [S.D.N.Y. Feb. 20, 2013]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 581 [S.D.N.Y. 2013]).

Next, the parents argue that the IHO "ignored" evidence that the district did not "sufficiently assess" the student's educational needs "and convene a full IEP [t]eam" (Req. for Rev. ¶ 30).[10]  However, as explained below, the evidence in the hearing record supports the IHO's determination that the CSE had sufficient evaluative information available to develop the student's IEP for the 2022-23 school year (IHO Decision at pp. 6-7).

Federal and State 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).

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]).  A CSE must consider independent educational evaluations whether obtained at public or private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]).  However, consideration does not require substantive discussion, or that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight or adopt their recommendations (Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 753 [2d Cir. 2018], citing T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993]; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004] [noting that even if a district relies on a privately obtained evaluation to determine a student's levels of functional performance, it need not adopt wholesale the ultimate recommendations made by the private evaluator], aff'd, 142 Fed. App'x 9 [2d Cir. July 25, 2005]; see Michael P. v. Dep't of Educ., State of Hawaii, 656 F.3d 1057, 1066 n.9 [9th Cir. 2011]; K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 805-06 [8th Cir. 2011]; Evans v. Dist. No. 17, 841 F.2d 824, 830 [8th Cir. 1988]; James D. v. Bd. of Educ. of Aptakisic-Tripp Community Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 818 [N.D. Ill. 2009]).

Contrary to the parents' contention that the district lacked familiarity with the student, as found by the IHO, the May 2022 CSE had before it the April 2022 psychoeducational evaluation completed one month prior by the school psychologist who served as the district representative (school psychologist) and the CSE reviewed the findings of the evaluation (Dec. 10, 2024 Tr. pp. 17-43; see Parent Exs. B at pp. 1-2, 19; D; Dist. Ex. 6 ¶ 6).

As stated above, the May 2022 IEP included evaluative information from the April 2022 psychoeducational evaluation as related to the student's performance on the Wechsler Individual Achievement Test-Fourth Edition (WIAT-4) in areas of reading, mathematics, and spelling (Parent Ex. B at p. 1; see Parent Ex. D).  According to the IEP, during the April 2022 psychoeducational evaluation, the student performed in the average range in the area of reading, achieving a composite standard score of 90, a subtest standard score of 102 in word reading (average), and a subtest standard score of 82 in reading comprehension (low average) (Parent Ex. B at pp. 1-2).  In reading, the IEP indicated that the student's decoding skills were well developed, and the student demonstrated the ability to blend letters and decode unfamiliar words (id. at p. 2).  Regarding reading comprehension, the student demonstrated the ability to read three different grade level passages; however, he struggled to locate the answers to inferential questions and provided brief or inaccurate answers to some questions (id.).  On the WIAT-4, the student performed in the average range in the area of mathematics with a composite standard score of 93, a math problem solving subtest standard score of 86 (low average), and a numerical operations subtest standard score of 102 (average) (id. at pp. 1-2).  The IEP noted that the student demonstrated the ability to "solve grade-level operations without limitations"; however, he struggled with math problem solving, reading simple graphs, and understanding place values (id. at p. 2).  In the area of spelling, the student achieved a standard score of 114 (high average) and demonstrated the ability to "write most of the words dictated in isolation" (id. at pp. 1-2).

The student's May 2022 IEP present levels of performance also reflected information from the 2021 Pathway progress report, which described the "targeted skills" and specific instructional techniques used with the student (compare Parent Ex. B at pp. 2-4, with Dist. Ex. 4 at pp. 2-5).  According to the May 2022 IEP, the student received Orton-Gillingham instruction at Pathway to develop his reading, writing, and language skills with explicit, scaffolded instruction (Parent Ex. B at p. 2).  In the area of math, the student received small group instruction, hands on learning and positive reinforcement, as well as systematic, multi-sensory instruction (id. at pp. 2-3).

The May 2022 IEP reported information, from the Pathway curriculum specialist/speech therapist, showing that the student received instruction in classes of two to six students, worked on third grade level math, had an estimated second grade reading level, and that speech-language testing results indicated very low skills in understanding spoken paragraphs (Parent Ex. B at pp. 3, 19).  The May 2022 IEP reflected reports that the student did not voluntarily raise his hand in class, although he did respond if the teacher called on him (id. at p. 3).  Additionally, the parents expressed concern with the student's poor expressive language and reported that the student was aware of his deficits, had anxiety about expressing himself, and asked his parents to speak for him (id.).  The IEP noted that the student attended two speech-language sessions per week at Pathway to address his language needs (id.).

In the area of social development, the May 2022 IEP stated, per the Pathway teacher, that the student was shy but had friends at school; however, pragmatic language affected his socialization (Parent Ex. B at p. 3).  In the area of physical development, the May 2022 IEP reported that during OT the student worked on regulation and reflex integration, and per parent report the student would seek sensory input which affected his concentration and socialization (id. at p. 4).

Next, the parents argue that the IHO disregarded the testimony of the Pathway student coordinator, which according to the parents, elaborated on the student's needs based on Pathway's testing and informal assessment and showed that the district recommendations of a 12:1 special class and related services, specifically OT services and individual counseling, were insufficient.  Per affidavit testimony, the Pathway student coordinator reported that the student "presented with delays in expressive, receptive, and pragmatic language; executive functioning; and social skills" and struggled with "sensory processing, motor skills, and motor planning" (Parent Ex. L ¶¶ 1, 14).  According to the Pathway student coordinator, the student also exhibited needs related to social/emotional and behavioral challenges, his ability to sustain attention and  work independently, and his need for 1:1 support to process information, initiate and complete tasks, and follow directions (id. ¶ 14).  The Pathway student coordinator also testified that the student needed scaffolded instruction and repetition to generalize skills and concepts (id. ¶ 16).  As related to reading, the Pathway student coordinator testified that the student demonstrated age-appropriate reading fluency; however, he had "very poor" comprehension and struggled to understand decoded text even at the sentence level (id. ¶ 18).  Further, the Pathway student coordinator, in affidavit testimony, reported results of measures of the student's reading, speech-language, sensory, motor, and socialization skills (id. ¶¶ 20-23).  However, the hearing record did not include Pathway formal or informal assessments from related service providers of OT, speech-language, or counseling, nor updated academic testing using the Gray Oral Reading Tests – Fifth Edition (GORT-5) as referenced in the Pathway student coordinator's affidavit testimony (see Parent Ex. L ¶¶ 19-23; see generally Parent Exs. A-M; Dist. Exs. 1-6; IHO Exs. I-II).[11]

Throughout the decision the IHO referenced information available to the May 2022 CSE, rather than the testimony of the Pathway student coordinator who was not present at the May 2022 CSE meeting (see IHO Decision at pp. 7-10).  Even if the IHO failed to cite to the Pathway student coordinator's testimony specifically, review of the May 2022 IEP present levels of performance shows that the information contained within the present levels of performance identified the student's academic, language, motor, and behavioral needs was consistent with the Pathway student coordinator's description of the student (compare Parent Ex. L ¶¶ 14, 16, 18, 20-23, with Parent Ex. B at pp. 1-4).  The IHO credited the district in presenting sufficient documentation and testimony to demonstrate how the CSE team used the available data provided at the time of the May 2022 CSE to create an educational program for the student (id.).  Accordingly, there is insufficient basis presented on appeal to disturb the IHO's finding that the district had sufficient evaluation information to develop the student's May 2022 IEP.

In addition, the hearing record supports the IHO's finding that the evidence demonstrates the type of active and meaningful participation that defeats a claim of predetermination.  The parents had an opportunity to express their preferences regarding the student's placement.  The district members of the CSE did not adopt the parents' preference; however, while school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement does not amount to a denial of the parent's meaningful participation in the development of the program (see E.H. v. Bd. of Educ. of the Shenendehowa Cent. Sch. Dist., 361 Fed. App'x 156, 160 [2d Cir. 2009]; E.F., 2013 WL 4495676, at *17; DiRocco, 2013 WL 25959, at *18-*20; P.K., 569 F. Supp. 2d at 383; Sch. For Language & Commc'n Dev., 2006 WL 2792754 at *7).

Furthermore, the IHO found that contrary to parents' assertion, the CSE included management needs similar in components to that of Pathway, although it did not use the same terminology (IHO Decision at p. 9).[12]  In addition to the 12:1 special class, the CSE recommended instructional strategies to address the student's management needs (Parent Ex. B at p. 4).  Specifically, the May 2022 IEP indicated the student required small group activities, a graphic organizer, checklists, modeling, positive reinforcement, and task analysis (id.).  Further, the school psychologist testified that the CSE discussed the benefits from the token economy system and positive praise and reinforcement to support the student (Dec. 10, 2024 Tr. p. 33; Dist. Ex. 6 ¶ 13).

The IHO found that the district provided evidence, and testimony from the school psychologist, showing that the recommended 12:1 special class would have allowed for individualized, 1:1 instruction, even in classes that were larger than 1:1 (IHO Decision at p. 10).[13]  In review of the management needs of the student's May 2022 IEP, the CSE included that the student required small group activities within the 12:1 special class setting (Parent Ex. B at p. 4).  Further, within affidavit testimony, the school psychologist reported that the recommended program would have provided "individualized instruction" and "smaller group attention in the classroom" (Dist. Ex. 6 ¶ 20).  In addition, the school psychologist testified that the district's recommendation would have provided "a small class" and "prevented [the student] from becoming easily distracted and overwhelmed given the small student ratio" (id. ¶ 21).  The May 2022 IEP stated that the CSE expressed that "[the student] d[id] not present any inappropriate behavior or severe disability and therefore a less restrictive class [wa]s recommended (12:1)" as opposed to the private school's preference for an extra adult within a 12:1+1 special class (Parent Ex. B at p. 3).  Here, review of the IEP supports the IHO's finding that the district's recommendation would have allowed the student to participate in smaller group instruction within the 12:1 special class.

In relation to class size, the Pathway student coordinator provided affidavit testimony indicating that, at Pathway, the student was placed in a "cohort group of eight students" which broke down into smaller groupings based on individual subjects and the student's abilities (Parent Ex. L ¶ 24).  The Pathway student coordinator also testified that the student received instruction in a class size of six students in English Language Arts (ELA), Orton Gillingham Reading, and writing/history classes; attended Hebrew reading class in a class size of five, and math in a class size of seven students with a 1:1 assistant also provided to support the classes with 1:1 instruction or guidance as needed (id. ¶¶ 34, 37, 49, 52, 55).  The Pathway student coordinator described the supports Pathway provided to the student to address his attention needs, including having the teacher work on the auditory processing skills needed to process sentences and paragraphs, strategies related to task completion, and building up language skills prior to the student being in a 12:1 setting without individualized prompting or refocusing (Dec. 10, 2024 Tr. pp. 65-66).  The Pathway student coordinator testified that the district recommended 12:1 special class would have been too large for the student and "[the student] would not [have] receive[d] the level of support, individual instruction, and proper small group instruction, that he needed" (Parent Ex. L ¶ 66).  The Pathway student coordinator referenced that her colleague participated in the May 2022 CSE meeting and stated during the meeting that she did not agree with the district 12:1 special class recommendation (id. ¶ 67).  However, despite this information, the hearing record supports the IHO's determination that the May 2022 CSE provided an adequate explanation for the 12:1 special class recommendation and, overall, the hearing record supports finding that the 12:1 special class recommendation was appropriate to meet the student's needs.

Once a CSE determines that an appropriate class placement for the student is available within the district, the district is not obligated to consider a more restrictive setting, such as a nonpublic school (see B.K., 12 F. Supp. 3d at 359 [indicating that "once the CSE determined that a 6:1:1 placement was appropriate for [the student], it was under no obligation to consider more restrictive programs"]; E.F., 2013 WL 4495676, at *15 [explaining that "under the law, once [the district] determined . . . the [LRE] in which [the student] could be educated, it was not obligated to consider a more restrictive environment"]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *7-*8 [S.D.N.Y. Mar. 19, 2013] [finding that "[o]nce the CSE determined that [the public school setting] would be appropriate for the [s]tudent, it had identified the [LRE] that could meet the [s]tudent's needs and did not need to inquire into more restrictive options"]).    Additionally, the parents' preference for a "smaller class size" illustrates a common predicament: that often what is considered "small" in terms of class size is in the eye of the beholder (M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 335 [E.D.N.Y. 2012] [holding "[t]hat the size of the class in which [the student] was offered a placement was larger than his parents desired does not mean that the placement was not reasonably calculated to provide educational benefits"], aff'd, 725 F.3d 131 [2d Cir. 2013]), but a parents' decision to provide a smaller classroom ratio is not in and of itself conclusive evidence of the question of whether a public placement provides appropriate services to meet a student's needs (see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015]).

With respect to the parents' contention that the district did not provide sufficient related services of OT and counseling within the May 2022 IEP, the IHO's decision focused more on the entirety of the program and found that the May 2022 IEP annual goals were sufficiently specific for the placement to implement (IHO Decision at p. 10).  The IHO determined that the annual goals included the specific skills to be improved, criteria for measurement, data collection method, and schedule for each of the student's identified needs in the areas of expressive language, reading comprehension, and attention (id.).[14]  Review of the May 2022 IEP annual goals supports the IHO's finding as to the appropriateness of the annual goals, as the evaluations, progress report, and teacher report identified areas of need for which the CSE developed annual goals related to improving the student's reading comprehension; writing skills at the sentence and paragraph level; ability to solve math word problems; language skills; sensory; attention; and social/emotional needs (Parent Ex. B at pp. 1-11; Dist. Exs. 4; 6 ¶¶ 11, 16).

Specific to the parents' claim regarding insufficient related services, according to the Pathway student coordinator, for the 2022-23 school year, the student received related services that included one 30-minute session per week of individual counseling, one 30-minute per week of push-in social skills group, two 30-minute sessions per week of individual speech-language therapy, and three 30-minute sessions per week of individual OT (Parent Exs. E; L ¶ 60).  The student coordinator opined that the district recommendation for one less session of OT per week, and only group counseling was insufficient to meet the student's needs (Parent Ex. L ¶ 68).

The school psychologist testified that the May 2022 CSE requested related service reports; however, Pathway only provided the one 2021 Pathway progress report, which was entered into evidence (Dec. 10, 2024 Tr. pp. 23-24; 36-37; Dist. Ex. 4).  Per affidavit testimony, the school psychologist reported information related to the student's significant speech-language delay, as observed during the psychoeducational evaluation and as reported by the Pathway speech therapist (Dist. Ex. 6 ¶ 11).  The school psychologist testified that the school reported the student was aware of his speech delays, had anxiety expressing himself, and at times asked his parents to speak for him (id.).  Also, per affidavit testimony, the school psychologist reported that the student would seek sensory input and this impacted his concentration and socialization (id.).  The school psychologist testified that, in relation to social/emotional needs, the school reported that the student had two friends but did not try to form more relationships, the student was an active participant who could lose attention easily, and he gravitated towards younger children, and the parents reported that they wanted the student to have more meaningful conversations and connections with peers (id. ¶ 16).  In relation to supporting the student's identified needs, the school psychologist testified that the program recommendation would provide individualized instruction and smaller group attention in the classroom; and "[a]dditionally, with the supports of speech therapy, OT and counseling all of [the student's] delays would be addressed" (id. ¶ 20).

Although the district did not provide the same frequency of services as Pathway; the May 2022 CSE recommended services in the same related service domains as provided at Pathway, with speech-language frequencies at the same mandate as the private school, and counseling and OT differing by one session each (compare Parent Ex. B at p. 13, with Parent Exs. E; L ¶ 60).   Specifically, the May 2022 CSE recommended related services that included one 30-minute session per week of individual counseling, two 30-minute sessions per week of individual OT, and two 30-minute sessions per week of individual speech-language therapy (Parent Ex. B at pp. 12-13).

The school psychologist testified that the program recommendation, which included a 12:1 special class placement with related services as described above, was appropriate as the student required a small class to address his attention, speech-language, and social delays and this setting would have provided the instruction and smaller group attention the student needed (Dist. Ex. 6 ¶ 20).  She further testified that the related service supports of speech-language therapy, OT, and counseling would also have addressed the student's delays (id.).  Moreover, the school psychologist stated, "the recommendation of a small class was appropriate because it would have prevented [the student] from becoming easily distracted and overwhelmed given the small student ratio" and in addition "would have addressed [the student's] academic delays and comprehension delays while giving him the chance to practice expressive language and social ability in a small setting with the help of the related services providers" (id. ¶ 21).

Based on all of the above, the hearing record supports the IHO's determinations that the May 2022 CSE recommended an appropriate program for the student for the 2022-23 school year. While the parents no doubt preferred that the student attend a setting such as Pathway, 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, 325 F. Supp. 2d at 145).  Once the CSE found that a 12:1 special class along with related services in a district school was appropriate for the student, it was not required to consider a nonpublic school for the student, let alone a school that was not State-approved (see E.P. v. New York City Dep't of Educ., 2015 WL 4882523, at *8 [E.D.N.Y. Aug. 14, 2015] [finding that once the CSE decided on an appropriate placement in the least restrictive environment in which the student could have been educated, it was not required to thereafter consider other more restrictive placements along the continuum]; see also B.K. v. New York City Dep't of Educ., 12 F. Supp. 3d 343, 359 [E.D.N.Y. 2014]; E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *15 [E.D.N.Y. 2014]; but see E.H. v. New York City Dep't of Educ., 164 F. Supp. 3d 539, 552 [S.D.N.Y. 2016] [finding a CSE was required to consider the parent's point of view that the student needed to be educated in the setting he was attending]).

B. Assigned School

Lastly, the parents argue that the IHO erred in finding that their concerns regarding the assigned public school were speculative as they had a "right to visit the proposed placement" which they were unable to do.

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., 2015 WL 2146092, at *3 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 2015 WL 1244298, at *3 [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]).  The Second Circuit has explained that when parents have rejected an offered program and unilaterally placed their child prior to implementation of the student's IEP, "[p]arents are entitled to rely on the IEP for a description of the services that will be provided to their child" (P.K. v. New York City Dep't of Educ., 526 Fed. App'x 135, 141 [2d Cir. May 21, 2013]) and that "'[t]he appropriate inquiry is into the nature of the program actually offered in the written plan,' not a retrospective assessment of how that plan would have been executed" (K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 87 [2d Cir. July 24, 2013], quoting R.E., 694 F.3d at 187).  Accordingly, when a parent brings a claim challenging the district's "choice of school, rather than the IEP itself . . . the appropriate forum for such a claim is 'a later proceeding' to show that the child was denied a free and appropriate public education 'because necessary services included in the IEP were not provided in practice'" (F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 9 [2d Cir. Jan. 8, 2014], quoting R.E., 694 F.3d at 187 n.3).[15]  Therefore, if the student never attends the public schools under the proposed IEP, there can be no denial of a FAPE due to the parent's suspicions that the district will be unable to implement the IEP (R.E., 694 F.3d at 195; see E.H., 2015 WL 2146092, at *3).

While parents are entitled to participate in the determination of the type of placement their child will attend, the IDEA confers no rights on parents with regard to school site selection (C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. Mar. 4, 2014]; see Luo v. Baldwin Union Free Sch. Dist., 2013 WL 1182232, at *5 [E.D.N.Y. Mar. 21, 2013], aff'd, 556 Fed. App'x 1 [2d Cir Dec. 23, 2013]; J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *10 [S.D.N.Y. Feb. 20, 2013]; see also R.E., 694 F.3d at 191–92 [finding that a district may select a specific public school site without the advice of the parents]; F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *11 [S.D.N.Y. Oct. 16, 2012] [noting that parents are not procedurally entitled to participate in decisions regarding public school site selection], aff'd, 553 Fed. App'x 2 [2d Cir. Jan. 8, 2014]).

Regarding the parents' ability to tour an assigned public school site, the United States Department of Education's Office of Special Education Programs (OSEP) has opined that the IDEA does not provide a general entitlement to parents of students with disabilities or their professional representatives to observe proposed school placement options for their children (Letter to Mamas, 42 IDELR 10 [OSEP 2004]; see G.J. v. Muscogee County Sch. Dist., 668 F.3d 1258, 1267 [11th Cir. 2012] [noting that rather than forbidding or mandating access for parents, "the process contemplates cooperation between parents and school administrators"]; J.B. v. New York City Dep't of Educ., 242 F. Supp. 3d 186, 195 [E.D.N.Y. 2017] [noting that the IDEA does not afford parents a right to visit an assigned school placement before the recommendation is finalized]; J.C. v New York City Dep't of Educ., 2015 WL 1499389, at *24 n.14 [S.D.N.Y. Mar. 31, 2015] [acknowledging that courts have rejected the argument that parents have a right under the IDEA to visit assigned schools and listing authority], aff'd, 643 Fed. App'x 31 [2d Cir. Mar. 16, 2016]; E.A.M. v. New York City Dep't of Educ., 2012 WL 4571794, at *11 [S.D.N.Y. Sept. 29, 2012] [finding that a district has no obligation to allow a parent to visit an assigned school or proposed classroom before the recommendation is finalized or prior to the school year]; S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *12 [S.D.N.Y. Nov. 9, 2011] [same]).

On the other hand, there is district court authority indicating that a parent has a right to obtain information about an assigned public school site (see H.L. v. New York City Dep't of Educ., 2019 WL 181307, at *9 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 2015 WL 5564446, at *11-*18 [S.D.N.Y. Sept. 21, 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 2014 WL 2207997, at *14-*16 [S.D.N.Y. May 27, 2014] [holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it]).

In this instance, the IHO noted that the district's prior written notice and attached school location letter, dated July 14, 2024, provided the parents with "more than six-weeks to evaluate the school's program prior to the start of the 10-month school year" (IHO Decision at p. 11).  The IHO then assessed the parent's testimony finding that she contacted the person designated on the school location letter to schedule a tour, but found that the parent was not entitled to a school tour—especially considering "COVID-19 health restrictions prohibited in-person tours of the school that year, for all students"—and further found that the parent's inability to remember details regarding her attempts to contact the school undermined her credibility in her assertion that she made an attempt to communicate with the school (id. at p. 12).

On appeal, the parent acknowledges receipt of the prior written notice and school location letter and asserts that she was unable to reach anyone at the assigned school to discuss the program or tour the school; however, the request for review only indicates that the IHO erred in finding that the district was not required to permit a visit to the assigned school, contending that "parents have the right to visit the proposed placement" without further explanation (Req. for Rev. ¶¶ 8-9, 26; see Dist. Exs. 2; 3).

In review of the hearing record, the evidence supports the IHO's determination.  As noted above, the hearing record includes a July 14, 2022 school location letter identifying the public school site the student was assigned to attend for the 2022-23 school year (Dist. Ex. 3).  The school location letter indicated that the parents could visit the recommended placement site and to contact the person designated in the letter for assistance in arranging a visit (id.).[16]  The hearing record also includes an August 18, 2022 letter from the parents in which the parents indicated that they reached out to the school but were told to call back in the last week of August (Parent Ex. C at p. 1).  In her testimony by affidavit, the parent noted the August 18, 2022 letter and further indicated "[d]espite our best efforts, we were unable to reach [the school] to discuss and/or tour the program in a timely manner" (Parent Ex. M ¶¶11-12).  During the hearing, the parent testified that it was hard to get through to the school and they "weren't offering any in-person tours of the school" and she could not make a decision without seeing the school (Dec. 10, 2024 Tr. p. 70).  According to the parent, when she called "it was [] either no answer, or no possibility of going down to the school to actually check it out in person" (id.).  The parent later testified that she believed the 2022-23 school year was in person, but there were no in person tours before the school year started (Dec. 10, 2024 Tr. p. 74).  However, she also testified that "once [she] got through to them, it was already into the school year" and "they did allow [her] to come" (id.).  Based on the above, the parent's testimony as to the communications made in arranging for a visit to the assigned school was inconsistent. Additionally, it is worth noting that the parent has not specifically appealed from the IHO's determination that the parent's own testimony as to her recollection of who she spoke with, when she spoke with them, or what was said all undermined her credibility as to her testimony regarding her attempt at communicating with the assigned school staff (see IHO Decision at p. 12).  Accordingly, due to the inconsistencies in the parent's testimony, the IHO's adverse credibility finding, and the lack of any documentary evidence other than the August 18, 2022 letter, the hearing record does not support finding that district denied the parents the opportunity to visit the assigned school such that it would possibly result in a denial of a FAPE.

VII. Conclusion

Having determined that the evidence in the hearing record supports the IHO's determination that the district offered the student a FAPE for the 2022-23 school year, the necessary inquiry is at an end.

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

THE APPEAL IS DISMISSED.