I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied, in part, their request for compensatory education to remedy respondent's (the district's) failure to provide their son with appropriate educational services for the 2022-23 and 2024-25 school years.  The district cross-appeals from that portion of the IHO's decision which granted, in part, the parent's request for compensatory education for the 2022-23 school year and which determined that the educational program and services recommended by its Committee on Special Education (CSE) for the student for the 2024-25 school year were not appropriate.  The appeal must be sustained in part.  The cross-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 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 detailed facts and procedural history of the case and the IHO's decision will not be recited here in detail.  Briefly, a committee on preschool special education (CPSE) convened on June 16, 2021, determined that the student was eligible for special education as a preschool student with a disability and developed an IEP for the student for the 2021-22 extended school year with an implementation date of January 3, 2022 (Parent Ex. D).[1]  The CPSE recommended the student attend an 8:1+2 special class program for five full days per week (id. at p. 1).  Recommended related services consisted of three 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual occupational therapy (OT), and three 30-minute sessions per week of individual physical therapy (PT) (id. at pp. 1, 10-11).  The CPSE also recommended special transportation with air-conditioning to and from school (id. at p. 13).

The hearing record does not include a copy of another IEP developed for the student by the CPSE, but, according to the student's father, for the 2022-23 school year, the student was recommended to attend an 8:1+2 special class and receive applied behavior analysis (ABA) services, speech-language therapy, OT, and PT, along with the provision of an individual paraprofessional in class and on the bus (Parent Ex. O ¶ 5; see Parent Exs. F at p. 1; J at p. 1).[2]  The student began attending the preschool program pursuant to the IEP in place at the time but, per parent report, "experienced interruption in instruction and services due to frequent unavailability of a paraprofessional" in the classroom and on the bus (Parent Ex. I at p. 2; see Parent Exs. G at p. 1; J at p. 1).

On May 25, 2023, a CSE convened and conducted a "Turning 5" meeting, determined that the student was eligible for special education as a student with autism, and developed an IEP for the student for the 2023-24 extended school year with an implementation date of September 5, 2023 (Parent Ex. J; see Parent Ex. O ¶ 22).[3]  The CSE recommended the student attend a 6:1+1 special class for his core academic instruction in a district specialized school (Parent Ex. J at pp. 14, 20).  In addition, the CSE recommended that the student receive three 30-minute sessions per week of individual OT, three 30-minute sessions per week of individual PT, and three 30-minute sessions per week of individual speech-language therapy and that the parents receive one 60-minute session per week of group parent counseling and training every five weeks (id. at p. 15).  Further, the CSE recommended the student receive supplemental services consisting of a full-time paraprofessional, together with door to door special transportation to and from school with limited time travel and a route with fewer students (id. at pp. 15-16, 20).  Finally, the CSE recommended that the student receive compensatory education services to address lost skills and/or lack of expected progress due to periods of remote and blended learning beginning in March 2020 consisting of three 30-minute sessions of individual OT, three 30-minute sessions of PT, and three 30-minute sessions of speech-language therapy (id. at pp. 16-17).

The student received the program recommended in the May 2023 IEP during the 2023-24 school year (see Parent Exs. M at pp. 1, 5; O ¶ 34).  In April 2024, the parents obtained a private neuropsychological evaluation of the student (Parent Ex. L).

On May 23 and June 20, 2024, a CSE convened, determined that the student continued to be eligible for special education as a student with autism, and developed an IEP for the student for the 2024-25 extended school year with an implementation date of July 11, 2024 (Parent Ex. M at pp. 1, 3-4, 35, 38).[4]  The CSE recommended that the student attend a 6:1+1 special class program for core academic instruction in a district specialized school (id. at pp. 28, 34).  In addition, the CSE recommended the student receive three 30-minute sessions per week of individual OT, three 30-minute sessions of individual PT, three 30-minute sessions per week of individual speech-language therapy in a separate location or therapy area, and two 30-minute sessions of individual speech-language therapy in a separate location or in the classroom (id. at p. 28).  The CSE recommended that the parents receive one 60-minute session per month of group parent counseling and training (id.).  Further, the CSE recommended the student receive supplemental services consisting of a "0.8" paraprofessional on an individual basis, together with full-time access to a dynamic display speech generating device (SGD) while at home and at school (id. at p. 29).  Finally, it was recommended that the student receive door to door special transportation to and from school with an individual paraprofessional, limited travel time, and a route with fewer students (id. at p. 34).

A. Due Process Complaint Notice

In a due process complaint notice dated October 4, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23, 2023-24, and 2024-25 school years (Parent Ex. A at p. 1).

With respect to the district's failure to provide the student a FAPE for the 2022-23 school year, the parents asserted, in pertinent part, that the CPSE recommended a paraprofessional in the classroom and on the bus for the student (Parent Ex. A at p. 2).  The parents maintained that, while on the first day of the school year the district provided the student with a paraprofessional in the classroom, it failed to do so on the bus, and, consequently, the parents had to drive the student to school (id.).  According to the parents, during the first week of school, the director of the preschool informed them that the school was short staffed and had to reassign the paraprofessional elsewhere (id. at pp. 2-3).  The parents asserted that the student was unable to attend school until the preschool hired more staff in December 2022 (id. at p. 3).  In January 2023, the student became ill and was unable to attend school (id.).  The student was set to return to school on February 6, 2023, however, the parents were informed once again that the preschool was short staffed and that the school could not provide a paraprofessional (id.).  According to the parents, no date was provided by the district as to when a paraprofessional would be available (id.).  The parents asserted that in March 2023 they withdrew the student due to the preschool's lack of a paraprofessional (id.).  Consequently, the parents alleged that the student did not receive special education services for the remainder of the 2022-23 school year (id.).

With respect to the 2022-23, 2023-24, and 2024-25 school years, the parents asserted that the district failed to provide the student a FAPE because it did not recommend an appropriate program that included ABA and PROMPT speech-language therapy (Parent Ex. A at pp. 10-12).[5]  The parents further maintained that the district failed to evaluate the student in all areas of suspected disability, failed to conduct an assistive technology evaluation, and failed to conduct a functional behavioral assessment (FBA), develop a behavioral intervention plan (BIP), or recommend a program to address the student's behavioral concerns (id.).  The parents asserted that the district failed to recommend and provide appropriate parent counseling and training to assist them in understanding the special needs of the student and helping them acquire skills to support the implementation of the student's IEP (id.).  The parents also maintained that the district failed to develop appropriate and measurable goals to address the student's deficit areas (id. at pp. 11-12).  Finally, the parents asserted that the district failed to provide the student with summer services for the 2022-23 and 2023-24 school years (id.).  As to the 2024-25 school year, the parents also alleged that the CSE improperly reduced the paraprofessional support in the student's IEP and the district did not provide them with a prior written notice or a copy of the June 2024 IEP until September 17, 2024 (id. at p. 9).

As relief, the parents requested an order for compensatory education services for the "academic, ABA, and related services" missed during each of the 2022-23, 2023-24, and 2024-25 school years (Parent Ex. A at p. 14).  In addition, the parents sought an order requiring 1:1 ABA services to be pushed into the school six hours per day during the 2024-25 school year with one hour per week of board certified behavior analyst (BCBA) supervision (id. at p. 13).  Further, the parents requested an order providing one hour per week of individual parent counseling and training by a BCBA, together with two hours per day of ABA services in the home during the 2024-25 school year and requiring that the recommended speech-language therapy services be provided by a PROMPT certified provider (id.).

Finally, the parents requested an order awarding independent educational evaluations (IEEs) of the student, specifically: a speech-language evaluation to be conducted by a speech-language pathologist trained in PROMPT therapy; an OT evaluation including sensory integration and Praxis test; a PT evaluation; an FBA assessment and BIP to be conducted by a BCBA; and an assistive technology evaluation (Parent Ex. A at pp. 13-14).

The district filed a response to the due process complaint notice dated October 17, 2024, generally denying the allegations therein and asserting multiple affirmative defenses including the statute of limitations (Parent Ex. B).

B. Impartial Hearing Officer Decision

The matter was assigned to an IHO from the Office of Administrative Trials and Hearings (OATH).  On November 7, 2024, the IHO conducted a prehearing conference (Tr. pp. 1-23).  At that conference, the district stated that it would be asserting a statute of limitations defense as to the parents' claims for the 2022-23 school year (Tr. p. 8).  The IHO advised the parties that her rules required written motions (id.).

Following the prehearing conference, the district submitted a written motion to dismiss, dated December 27, 2024, asserting that the parents' claims relating to the 2022-23 school year were barred by the IDEA's two-year statute of limitations (Dist. Ex. 12).  The district asserted that the IDEA provides an opportunity for any party to present a complaint related to the identification, evaluation, or educational placement of a child, or the provision of a FAPE that occurred not more than two years before the date that the petitioner "knew or should have known" about the alleged action that forms the basis of the complaint (id. at p. 3).  The district argued that the parents first became aware of the district's failure to provide the student with a paraprofessional on or about July 1, 2022, the start of the 2022-23 school year (id. at p. 4).  According to the district, the parents' due process complaint notice alleged that, on the first day of the 2022-23 school year, the district failed to provide a paraprofessional on the student's bus, that the parents were informed during the first week of school that the school was short staffed, and that the school had to reassign the student's paraprofessional elsewhere (id.).  The district argued that, as the parents knew or should have known of the district's failure to implement paraprofessional services for the 12-month 2022-23 school year on or about July 1, 2022, and the due process complaint notice was not filed until October 4, 2024, the parents' claims for the 2022-23 school year were barred by the applicable two-year statute of limitations (id.).

In a memorandum of law in opposition to the district's motion to dismiss, dated January 2, 2025, the parents asserted that the district incorrectly assumed that the student's 2022-23 school year started on July 1, 2022 (IHO Ex. II at p. 3).  The parents argued that their allegations contained in the due process complaint notice referring to "the first day of school" were based on a September 2022 start date, not July 1, 2022, as the district alleged (id.).  In addition, the parents asserted that the district erroneously looked to when certain events occurred as the date when the statute of limitations began to run rather than when the parents "knew or should have known" of the actions forming the basis of the due process complaint notice, as expressly provided by the language of the IDEA (id. at pp. 3-4).  The parents argued for an accrual date of June 29, 2023, the end of the 2022-23 school year, for their implementation claims, and April 5, 2024, the date of the neuropsychological evaluation of the student, for their program allegations (id. at pp. 6-7).  The parents argued that the district bore the burden to establish its affirmative defense that the parents' claims relating to the 2022-23 school year were barred by the statute of limitations (id. at p. 4).  Finally, the parents asserted that, even assuming arguendo that the district's standard was correct, the due process complaint notice was filed on October 4, 2024 and, therefore, any claims accruing on or after October 4, 2022, were timely (id.).

An impartial hearing was conducted on January 16, 2025 (Tr. pp. 24-72).  At the hearing, the IHO acknowledged the district's motion to dismiss and the parents' opposition (Tr. p. 32).  The IHO stated that she would decide the motion in her findings of fact and decision (id.).

In a decision dated February 13, 2025, the IHO determined that the district failed to provide the student a FAPE for the 2022-23, 2023-24, and 2024-25 school years (IHO Decision at pp. 10-11).  Initially, with respect to the district's motion to dismiss, the IHO determined that the parents knew or should have known about their claims pertaining to the 2022-23 school year on February 6, 2023, when the school informed them that the student would not have a paraprofessional upon returning to school (id. at p. 5).  The IHO ruled that, while the student was not provided a paraprofessional in September 2022, it was unknown at that time whether the situation was temporary or permanent (id.).  The IHO found that it was only upon the student's return to school after a sickness, on February 6, 2023, that the parents were informed by the preschool that it was short staffed, and no date was provided when a paraprofessional would be available (id.).  Based on this determination, the IHO found that the parents had until February 6, 2025, to file a due process complaint notice with claims pertaining to the 2022-23 school year (id.).  As the parents filed their due process complaint notice on October 4, 2024, the IHO concluded that the filing was timely (id.).  However, the IHO ruled that the parents' request for compensatory education for services not provided by the district prior to February 6, 2023, was precluded by the statute of limitations (id. at pp. 5, 13).

Turning to the merits, the IHO noted that, while the district's burden of proof did not require it to call witnesses, it did require the district to defend its recommendations and provide evidence that explained such recommendations (IHO Decision at p. 10).

With respect to the 2022-23 school year, the IHO found that the district did not submit any documentary or testimonial evidence to defend the parents' claim that a FAPE was not provided to the student (IHO Decision at p. 10).  The IHO found that there was no IEP, no prior written notice, nor any evaluations or assessments of the student in the record specific to the 2022-23 school year (id.).  In addition, the IHO concluded that the district denied the student a FAPE because it failed to implement the recommended services to the student by not providing a classroom paraprofessional for the student for many months of the school year or a bus paraprofessional at the start of the school year (id.).

With respect to the 2023-24 and 2024-25 school years, the IHO found that, although the student had profound delays in expressive and receptive skills in speech, and the parents' greatest concern was the student's speech, no speech evaluation was conducted, and no explanation was provided by the district as to why three sessions per week of speech-language therapy were sufficient or appropriate for the student (IHO Decision at p. 10).  In addition, the IHO noted that the recommended rate and frequency of OT and PT remained the same as the prior year and that the conclusory statements contained in the May 2023 IEP failed to provide any insights as to the rationale for the recommendations (id.).  Next, the IHO found that the district did not conduct an FBA or develop a BIP despite the student's behavioral concerns and his difficulty with self-regulation (id.).  The IHO also concluded that no assistive technology device was recommended, nor an assistive technology evaluation conducted, even though the student was unresponsive to verbal and nonverbal subtests (id.).  Finally, specific to the 2024-25 school year, the IHO found that the parents testified at the hearing that they did not receive a copy of the June 2024 IEP or the prior written notice until September 17, 2024 (id.).  Although the IHO did not address the parents' claims pertaining to ABA and PROMPT speech-language therapy in her discussion of the district's offer of a FAPE to the student, she did discuss the claims and made findings relevant to the analysis of the IEPs in her discussion of the relief, as noted below.

As to the specific compensatory education services relief requested by the parents for the 2022-23 school year, the IHO acknowledged the father's testimony that the student lacked an individual paraprofessional and consequently was unable to access the special education services for the school year (IHO Decision at p. 12).  The IHO also noted the father's testimony that the student was mandated to receive individual ABA during the 2022-23 school year (id.).  The IHO concluded that, due to the district's failure to provide the student with a paraprofessional for most of the school year, the student was not able to access his special education (id. at pp. 12-13).  The IHO ordered the district to provide the student with individual ABA that the student was "supposed to receive" during the latter part of the 2022-23 school year as well as the related services that he missed including speech-language therapy, OT, and PT starting on February 6, 2023, together with the summer 2023 services that were not provided (id. at p. 13).

As to the parents' request for compensatory PROMPT speech-language therapy for the 2022-23 school year, the IHO found that the hearing record evidenced that PROMPT therapy was first recommended to the student as of June 22, 2024 (IHO Decision at p. 13).  As such, the IHO declined the parents' request (id.).  Next, the IHO found that parent counseling and training was not recommended for the 2022-23 school year but should have been pursuant to 8 NYCRR 200.13(d), which requires parent counseling and training for students with autism (id.).  That finding, combined with the neuropsychologist's recommendation that parent training should occur weekly, led the IHO to order the district to fund 36 hours of parent counseling and training for the 2022-23 school year (id.).  Finally, the IHO declined the parents' request for compensatory special education teacher support services (SETSS) as there was nothing in the record to support the request (id.).

With respect to the 2023-24 and 2024-25 school years, the IHO acknowledged that the parents requested compensatory education relief in the form of PROMPT speech-language therapy and ABA (IHO Decision at p. 13).  The IHO concluded from the hearing record that the student received the recommended speech-language therapy in the 2023-24 school year although it was not PROMPT therapy (id.).  Because PROMPT therapy was first recommended as of June 22, 2024, the IHO declined the parents' request for PROMPT speech-language therapy for the 2023-24 school year (id.).  In addition, for the 2024-25 school year, the IHO found the recommendations for PROMPT to be contradictory and, further, noted that the evaluations did not recommend "remedial services" (id.).  The IHO also found that there was nothing in the record to support compensatory ABA services either in school or at home (id.).  As such, the IHO declined to award compensatory education for ABA services including BCBA supervision in either the 2023-24 or the 2024-25 school years (id.).

Regarding the parents' request for compensatory parent counseling and training for the 2023-24 and 2024-25 school years, the IHO acknowledged the father's testimony that the parents never received mandated parent counseling and training (IHO Decision at p. 13).  The May 2023 IEP recommended that the parents receive one hour of group parent counseling and training every five weeks (id.).  Based on the foregoing, the IHO granted the parents' request for nine hours of parent counseling and training missed during the 2023-24 school year (id.).  As to the 2024-25 school year, the IHO found that the June 2024 IEP recommended that the parents receive one 60-minute session per month of group parent counseling and training (id.).[6]  Although the parents requested one hour per week for 42 weeks of individual compensatory parent counseling and training by a BCBA based upon the neuropsychologist's recommendation that parent counseling and training occur weekly, the IHO concluded that the hearing record contained no other information as to why the parents required weekly parent counseling and training or that the services be provided on an individual basis; therefore, she ordered relief based on the June 2024 IEP, namely one 60-minute session of parent counseling and training per month (id. at pp. 13-14).

Next, the IHO turned to the parents' request for a prospective placement for the 2024-25 school year to include six hours per day of individual ABA services to be pushed into the school and two hours per day of ABA services in the home, with one hour per week of BCBA supervision, and one hour per week of individual parent counseling and training by a BCBA, as well as speech-language therapy services be provided by a PROMPT certified provider (IHO Decision at pp. 14-16).  The IHO found that the matter did not present one of the rare instances where prospective placement was warranted and denied the requested relief (id. at p. 15).  Instead, the IHO ordered the CSE to reconvene within 35 calendar days of the date of her decision to explicitly discuss: (a) whether individual ABA services in the school and in-home services, including BCBA supervision should be included in the student's IEP; (b) whether the frequency of parent counseling and training should be changed to once a week; and (c) whether speech-language therapy should be conducted by a PROMPT certified provider (id. at pp. 16, 20).  The IHO further ordered that, if the CSE did not adopt any of the recommendations found in the most recent neuropsychological evaluation and the most recent PROMPT speech-language evaluation, the CSE must explain to the parents in writing within 10 days why it declined to incorporate those recommendations (id.).

Despite her denial of the parents' request for prospective relief for the 2024-25 school year, the IHO went on to analyze the evidence relating to the specific services sought (IHO Decision at pp. 15-16).  Regarding the request for ABA services being pushed into the school for six hours per day for the 2024-25 school year, the IHO noted that the student's former early intervention BCBA instructor provided a letter recommending that the student participate in an intensive ABA program as the student exhibited significant delays in all developmental domains (id. at p. 15).  The IHO also acknowledged that the parents had introduced a letter together with an evaluation conducted by a neuropsychologist in April 2024 that recommended an ABA-based classroom with discrete learning trials managed by teachers well-trained in the theories and techniques of ABA (id.).  The IHO also referenced notation in the June 2024 IEP that certain aspects of ABA methodology were integrated into the classroom (id.).  The IHO noted, however, that no further details were provided including what those aspects were, how frequently they occurred, or how the classroom staff would use it with the student (id. at p. 16).  Given the student previously had shown improvement with ABA and still displayed severe deficits in many areas and continued to be behind in his learning, including behavioral deficits in many areas, the IHO ordered the CSE to reconvene within 35 calendar days of her decision to explicitly discuss whether to add individual ABA services in the school and in-home recommended services, including BCBA supervision and whether the frequency of the parent counseling and training should be changed (id.).  If the CSE did not adopt any of the recommendations found by the neuropsychologist or by the prior BCBA, the CSE was ordered to explain to the parents in writing within 10 calendar days why it had declined to incorporate those recommendations (id.).

Regarding the parents' request that the speech-language therapy recommended for the student in the 2024-25 school year by the June 2024 CSE, be provided by a PROMPT certified provider, the IHO acknowledged that the parents submitted a speech-language evaluation that recommended PROMPT speech-language therapy services (IHO Decision at p. 16).  The IHO also noted that the neuropsychologist recommended daily PROMPT therapy to address the student's lack of language development since PROMPT is an approach used in nonverbal children as well as other specific language delays (id.).  The IHO concluded, however, that there was no evidence in the record to support that PROMPT was needed for the student to make progress (id.).  The IHO further concluded that there was nothing in the hearing record as to how PROMPT speech-language therapy was different than non-PROMPT speech-language therapy as no speech language therapist was called as a witness nor was there any other evidence produced (id.).  Based on the foregoing, the IHO denied the parents' request that speech-language therapy recommended for the student for the 2024-25 school year be provided by a PROMPT certified provider (id.).  However, the IHO ordered the CSE to reconvene to discuss whether PROMPT therapy should be part of the student's IEP give the recommendations of the two evaluators (id.).

Finally, the IHO directed the district to conduct an OT evaluation of the student, including a sensory integration and Praxis test, and a PT evaluation within 35 days of her decision (IHO Decision at p. 19).  In addition, the district was directed to fund at "fair market rate" an independent FBA and, if needed, a BIP, together with an independent assistive technology evaluation (id.).[7]

IV. Appeal for State-Level Review

The parents appeal the IHO's decision arguing that the IHO improperly shortened the applicable two-year statute of limitations by holding that any claims for relief by the parents arising before February 6, 2023, were precluded.  The parents assert that they are entitled to compensatory ABA services as of September 2022, or at the very least, October 6, 2022.[8]

In addition, the parents assert that, while the IHO was correct in determining that the district failed to provide a FAPE to the student for the 2024-25 school year, she improperly considered the requested relief as "prospective," denied their requested relief in the form of specific programming for the remainder of the school year and for compensatory education, and ordered the CSE to reconvene to explicitly discuss whether to add individual ABA services in the school and in-home.  The parents maintain that the requested relief was not prospective because they sought relief for the then-current 2024-25 school year.  Further, the parents argue that, by requesting the CSE to reconvene, the IHO improperly delegated to the CSE the hearing officer's functions.  The parents seek an order requiring the student's program to consist of specific services for the 2024-25 school year and that the student be awarded compensatory education for the 2024-25 school year consisting of ABA, BCBA supervision, and PROMPT speech-language therapy.

In an answer and cross-appeal, the district maintains that the IHO erred in holding that the parents' 2022-23 school year claims were not barred by the applicable two-year statute of limitations.  In addition, the district asserts that the IHO incorrectly ordered compensatory ABA services for the 2022-23 school year, arguing that the only basis for the IHO's award was the acceptance of the testimony of the student's father that the CPSE had included "related services of ABA."  Further, according to the district, the parents failed to show that the student needed ABA services in the 2022-23 school year.  Next, the district asserts that it provided the student with a FAPE for the 2024-25 school year.  Finally, the district argues that, even if the SRO sustains the IHO's determination that it failed to provide a FAPE for the 2024-25 school year, the student was not entitled to compensatory ABA, BCBA, and/or PROMPT speech-language therapy.

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]

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

VI. Discussion

Initially, the district does not challenge the IHO's findings that it failed to offer the student a FAPE for the 2022-23 and 2023-24 school years.  In addition, neither party challenges the IHO's directive that the district conduct an OT evaluation, including a sensory integration and Praxis test, and a PT evaluation of the student.  Likewise, neither party challenges the IHO's directive for the district to fund IEEs at a "fair market rate" by a provider of the parents' choosing consisting of a FBA, and, if needed, a BIP, along with an assistive technology evaluation.  Neither party challenges the IHO's awards of 36 hours of parent counseling and training for the 2022-23 school year and nine hours for the 2023-24 school year nor the directive that the district determine how many of hours of group parent counseling and training were missed by the parents during the 2024-25 school year and that it provide compensatory hours on a quantitative basis until the next CSE meeting or the district implements parent counseling and training services.  The parents do not allege that the IHO erred in not awarding that compensatory speech-language therapy be provided using PROMPT for the 2022-23 or 2023-24 school years or in denying the parents' request for compensatory SETSS.  Further, the parents do not allege that the IHO erred in the relief awarded for the 2023-24 school year or seek additional compensatory education for that period of time.  Finally, although the district argues that no relief should have been awarded for the 2024-25 school year and the parents assert that more relief should have been awarded, neither party specifically challenges the IHO's order for the CSE to reconvene to consider ABA and PROMPT for the student.  As these specific issues are unappealed, the IHO's determinations on these points have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see Bd. of Educ. of the Harrison Cent. Sch. Dist. v. C.S., 2024 WL 4252499, at *12-*15 [S.D.N.Y. Sept. 20, 2024]; M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

The remaining issues consist of the application of the two-year statute of limitations and the effect thereof on the parents' claims for relief in the 2022-23 school year; whether the IHO erred in awarding ABA compensatory education services for the 2022-23 school year; whether the district failed to provide a FAPE in the 2024-25 school year, and if so, whether the IHO erred in denying the parents' claims for relief based on her determination that the relief was prospective.  Finally, if reached in this appeal, the remaining issue is whether the IHO incorrectly denied PROMPT speech-language therapy and ABA services as compensatory education services relief for the 2024-25 school year.

A. Statute of Limitations—2022-23 School Year

The IDEA provides that a claim accrues on the date that a party knew or should have known of the alleged action that forms the basis of the complaint and requires that, unless a state establishes a different limitations period, the party must request a due process hearing within two years of that date (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Educ. Law § 4404[1][a]; 34 CFR 300.507[a][2], 300.511[e]; 8 NYCRR 200.5[j][1][i]; Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114-15 & n.8 [2d Cir. 2008]; M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir. 2003]).[10]  Because an IDEA claim accrues when the parent knew or should have known about the claim, "determining whether a particular claim is time-barred is necessarily a fact-specific inquiry" (K.H. v. New York City Dep't of Educ., 2014 WL 3866430, at *16 [E.D.N.Y. Aug. 6, 2014]; see K.C. v. Chappaqua Cent. Sch. Dist., 2018 WL 4757965, at *14 [S.D.N.Y. Sept. 30, 2018] [collecting cases representing different factual scenarios for when a parent may be found to have known or have had reason to know a student was denied a FAPE]).  Further, two exceptions to the statute of limitations may apply to the timelines for requesting impartial hearings.  The first exception applies if a parent was prevented from filing a due process complaint notice due to the district withholding information from the parent that the district was required to provide under the IDEA (20 U.S.C. § 1415[f][3][D][ii]; 34 CFR 300.511[f][2]; 8 NYCRR 200.5[j][1][i]).  A second exception may apply if a parent was prevented from filing a due process complaint notice due to a "specific misrepresentation" by the district that it had resolved the issues forming the basis for the due process complaint notice (20 U.S.C. § 1415[f][3][D]; 34 CFR 300.511[f]; 8 NYCRR 200.5[j][1][i]).

In this matter, the IHO identified the accrual date of the parents' claims pertaining to the 2022-23 school year based on evidence relating to the district's implementation failures (see IHO Decision at p. 5).  The IHO did not separately examine the accrual dates for the parent's claims directed at the district's failure to evaluate the student or the appropriateness of the programming in place for the 2022-23 school year.  Nevertheless, the IHO went on to find that the district denied the student a FAPE for the 2022-23 school year, not only because of the implementation failures, but also because there was no IEP or other evidence for that school year submitted into the hearing record by the district (id. at p. 10).  As noted above, the district does not appeal the IHO's finding that it failed to provide a FAPE for the 2022-23 school year or challenge the specific grounds underlying that determination but does allege that any claims directed at the programming in place for the student were barred by the statute of limitations.

Although the hearing record does not include a CPSE IEP developed subsequent to the June 2021 IEP, the parents' allegations referenced programming in place for the student as of the beginning of the 2022-23 school year (see Parent Ex. A at pp. 2-3, 10-11).  The parents' claims regarding the district's failure to evaluate the student or the appropriateness of the student's programming for the 2022-23 school year are such that they each likely accrued at the time of the underlying CPSE meeting, if applicable, or when the parent became aware of the recommended program, in other words, "almost immediately" after each action underlying the complaint occurred, notwithstanding that the parents may have subsequently "acquired additional information" about their claims (Roges v Boston Pub. Schools, 2015 WL 1841349, at *3 [D. Mass. Apr. 17, 2015]).[11]  The father testified that a program was in place for the student at the beginning of the 2022-23 school year and described that, at that time, "the CPSE had recommended" an 8:1+2 special class with ABA services, speech-language therapy, OT, PT, and classroom and transportation paraprofessionals (see Parent Ex. O ¶¶ 5-7).  The parents did not claim to be unaware of the programming in place.  Thus, any evaluation or IEP design claims relating to the 2022-23 school year accrued more than two years prior to the parents' filing of the October 2024 due process complaint notice and are barred by the two-year statute of limitations.

However, the parents also alleged in their due process complaint notice that the district failed to implement services for the 2022-23 school year, and they sought compensatory educational services as a remedy.  The district asserts for the first time on appeal that, in fact, the district developed no IEP for the student for the 2022-23 school year and, therefore, the parents "knew or should have known as of July 1, 2022 that the [district] did not recommend a paraprofessional and would not be providing one" (Answer & Cr.-App. ¶¶ 5-6).  However, the hearing record contains uncontroverted evidence, including notations on district evaluations and subsequent IEPs, that the student's 2022-23 program included the provision of an individual paraprofessional in the classroom and an individual transportation paraprofessional on the bus (Parent Exs. F at p. 1; G at p. 1; J at p. 1; M at pp. 7, 37; O ¶ 5; see IHO Decision at p. 6).  Further, at the impartial hearing, the district did not contend that there was no recommendation for a paraprofessional and, instead, asserted that the parents "knew or should have known about their claims that [the district] failed to provide a paraprofessional at the start of the 12-month 2022-2023 school year on July 1, 2022" (Dist. Ex. 12 at p. 4 [emphasis in the original]).  During the hearing, the crux of the parties' dispute pertained to the date on which the parents became aware of the district's failure to implement the paraprofessional services (Dist. Ex. 12; IHO Ex. II).  Accordingly, I decline to entertain the district's position, asserted for the first time on appeal, that there was no mandate for paraprofessional services for the student for the 2022-23 school year.  This is particularly so as the district carried the burden at the impartial hearing to prove its affirmative defense (K.H., 2014 WL 3866430, at *15).

The IHO found that the parents knew or should have known of the district's failure to implement services on February 6, 2023, the date when the student returned to school after an illness and the parents were informed by the preschool that it was short staffed and could not provide an individual paraprofessional, but gave no date when a paraprofessional would be available (IHO Decision at p. 5; see Parent Ex. O ¶ 12).  In its cross-appeal, the district alleges that the IHO erred in her findings regarding the accrual date, arguing that, even assuming there was a mandate for paraprofessional services, the parents knew or should have known that the student was not receiving a paraprofessional on the first day of school, which the district contends was July 1, 2022, "or at most the first week[] of the 2022-2023 school year."[12]  The accrual date is a fact specific inquiry and occurs as of the date that the parent knew or should have known of a failure to implement mandated services (see Application of a Student with a Disability, Appeal No. 24-521).  Based on the father's testimony, it appears that there were periods at the beginning of the school year when the student had a paraprofessional assigned to him in school and the preschool made representations to the parents that efforts were being made to hire staff, that is until February 2023 when the preschool informed the parents that it could not provide a paraprofessional or identify a date when one would be available (Parent Ex. O ¶¶ 8-13).  The district does not point to any evidence in the hearing record that the parents should have known at the beginning of the school year that the implementation failure would be more than de minimis.[13]  As the IHO found, the parents did not know at the start of school year whether the lack of an individual paraprofessional for the student was temporary or permanent (IHO Decision at p. 5).  Thus, there is insufficient evidence in the hearing record to support the district's contention that the student's first day of school triggered the parents' implementation claims.  Absent contrary evidence that the parents knew or should have known that the failure to provide the student an individual paraprofessional would be substantial or significant on a date prior to February 6, 2023, I find no reason to disturb the IHO's finding that the parents' implementation claims accrued on February 6, 2023.

Next, I turn to the parents' argument on appeal that the IHO improperly used the accrual date, February 6, 2023, as the cutoff date for any relief the parents sought.  According to the parents, since they timely filed their due process complaint notice on October 4, 2024 within two years of the accrual date pertaining to their claims for the 2022-23 school year, the parents could seek relief for the entirety of the 2022-23 school year.  Here, I concur with the parents that, because the parents did not have reason to know that the district's implementation failure was substantial or significant until the accrual date, which the IHO identified as February 6, 2023, the IHO erred in concluding that the parents could not seek redress for their implementation claims reaching back to the beginning of the 2022-23 school year (see Boffa v. Banks, 764 F. Supp. 3d 120, 128 [S.D.N.Y. 2025]; see also G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 616 [3d Cir. 2015] [finding that the statute of limitations period is not "a cap on a child's remedy for timely-filed claims that happen to date back more than two years before the complaint is filed"]).  Thus, the student may be entitled to relief from the beginning of the 2022-23 school year.  As the district has not appealed the IHO's finding that it denied the student a FAPE for the 2022-23 school year, the parents' request for compensatory education for this period is discussed below.

B. June 2024 IEP

Next, I turn to the district's cross-appeal of the IHO's determination that it failed to provide the student a FAPE for the 2024-25 school year.  The district asserts that there was nothing in the hearing record to suggest that the student's behaviors impeded the student's or other students' learning and, consequently, neither an FBA nor a BIP was required.  In addition, the district asserts that the June 2024 CSE had up-to-date evaluative information that it thoroughly considered during the June 2024 CSE meeting.  As for speech-language therapy, OT, and PT, the district asserts that the student was making progress.  With regard to assistive technology, the district maintains that ultimately the CSE recommended a dynamic display generating device and that the absence of a specific assistive technology evaluation was inconsequential.  Finally, in the context of asserting that the IHO erred in the relief awarded, the district argues that there was not a clear consensus before the June 2024 CSE that the student required PROMPT-based speech-language therapy or ABA services in order to receive a FAPE.

1. Sufficiency of Evaluative Information

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).

An examination of the June 2024 IEP and the June 2024 prior written notice reveals that, in developing the student's IEP, the CSE considered the April 2024 neuropsychological evaluation, a fall 2023 Formative Assessment of Standards Tasks (FAST) assessment; winter 2024 and spring 2024 Student Annual Needs Determination Inventory (SANDI) assessments; the student's May 2023 IEP; in the area of speech and language, a May 2024 CSS-profile, Communication Matrix, and results from a speech and language observation and informal assessment tasks; a May 2024 Timed Up and Down Stairs Test; and a May 2024 structured OT observation (Parent Ex. M at pp. 1-4; Dist. Ex. 4 at p. 4).[14]  The meeting was attended by the student's parents; the neuropsychologist who conducted the April 2024 private neuropsychological evaluation of the student; the parent's advocate; the student's special education teacher; the student's speech-language therapy, OT, and PT providers; a school psychologist; and a district representative (Parent Ex. M at p. 4).  Review of the June 2024 IEP reflects that, in addition to the documents identified above, the CSE also considered narrative reports from the student's then-current related services providers including his occupational therapist, his speech-language therapist, and his physical therapist, along with his classroom teacher (see id. at pp. 1-11).  In the area of speech and language, the IEP shows the CSE recommended a formal full speech evaluation be conducted, noting that it appeared one had not been conducted since the student was two years old (id. at p. 37).

With regard to the student's overall functioning, the June 2024 IEP indicated that the student was exempt from the New York State and Local Standardized Assessments and, at the time of the CSE meeting, participated in the New York State Alternate Assessment "due to significant delays in communication, social functioning, [and] delays in adaptive behavior" (see Parent Ex. M at p. 1).

Regarding the student's cognitive and preacademic skills, the June 2024 IEP indicated, as noted in the April 2024 neuropsychological report, that the private neuropsychologist attempted to perform formal measures to obtain the student's level of intellectual functioning but due to his challenges she was unable to properly obtain scores (Parent Ex. M at p. 4; see Parent Ex. L).  According to the IEP, based on the parent's responses on the Vineland Adaptive Behavior Scales, Third Edition (Vineland-3), the student obtained an adaptive behavior composite of 48, which fell below the first percentile (Parent Ex. M at p. 4; see Dist. Ex. 10).  The IEP further indicated the neuropsychological evaluation noted the student's adaptive functioning "was again measured using the Vineland—[and that the student] remains [l]ow in all domains" (Parent Ex. M at p. 5).

As reported in the June 2024 IEP, the student's performance on the SANDI in fall 2023, winter 2024, and spring 2024 reflected scores that were very low but increased from fall 2023 to spring 2024 as follows: from 4 to 15 out of 436 in reading, from 0 to 4 out of 276 in writing, from 1 to 4 out of 396 in math, from 4 to 18 out of 324 in communication development, and from 8 to 31 out of 384 in adaptive living skills (Parent Ex. M at pp. 1, 3).  Based on the spring 2024 administration of the SANDI, the IEP indicated the student was able to perform the following skills: look at or turn toward a familiar person, express five different emotions in various ways, and respond to gestures made by a familiar person by looking toward and acknowledging the person or making a facial expression (id. at pp. 1-2).  In addition, the student was able to voluntarily grasp and release five objects that were placed in his hand, reach for math manipulatives, respond to sound by startling or reacting, respond or orient to touch, and calm or smile when spoken to (id. at p. 2).  The IEP noted the student was able to sit independently "for a very short time" and that his ability to stay on task was limited and he needed a lot of support from his "one to one" who helped guide him through the classroom schedule (id. at p. 5).

With respect to communication and speech-language skills, at the time of the meeting, the student was reportedly receiving speech-language therapy "at his full mandate" (Parent Ex. M at p. 7).  The June 2024 IEP indicated that the student communicated mainly through gestures and was learning to use a programmatic communication device (id. at pp. 5-6).  The student responded inconsistently to highly familiar and repetitive verbal and visual commands and identified desired items by reaching for them (id.).  According to the IEP, the student benefited from frequent sensory breaks and food-based reinforcers (id.).  The IEP noted the student was able to vocalize unintelligible vowel-like productions with some consonant-vowel combinations (id. at p. 6).

Socially, according to the June 2024 IEP, the parents' responses on a rating form for behaviors related to autism reflected that the student's primary difficulties were with verbal and nonverbal social communication, engagement, and maintaining social contact, and further that the student had very limited interaction with peers and "somewhat with adults" (Parent Ex. M at p. 7).  The IEP stated that the parents reported a trend towards the student's engagement in purposeless repetitive behaviors (id.).  According to the IEP, the parents reported that the student became fascinated by parts of objects and tended to insist on certain routines but could be flexible (id.).  Parent ratings on a second measure of behavior were appropriate for cooperation, mood, affect, and physical wellbeing; however significant inattention, restlessness, and impulsivity were endorsed (id. at p. 8).  The parents' responses also reflected the presence of motor and vocal tics (see id.).

Regarding behavior, the IEP noted the student required adult assistance, verbal prompts, and encouragement to stay focused and complete the task at hand (Parent Ex. M at p. 10).  The IEP indicated that, if the student was not supervised, he left his seat and walked away, threw things on the floor, or placed inedible objects in his mouth (id.).  According to the IEP, the student required supervision for safety, as well as assistance and support for managing classroom routines and attending alongside his peers in the classroom (id.).  The IEP reflected information from the neuropsychological evaluation that the student engaged in repeated physical movements and self-harm, in addition to compulsive behavior (id. at p. 5).

In terms of physical development, the student exhibited deficits in gross motor skills and required PT to increase independence in school settings, although he could walk 100-feet and navigate stairs with assistance (Parent Ex. M at p. 10).  The student was reported to demonstrate poor motor skills and body image as well as "somewhat rigid or awkward movements" (id.).  According to the June 2024 IEP, the student needed continued  assistance in toilet training, feeding, and developing independence (see id. at p. 5).  In terms of fine motor skills, the IEP indicated the student could briefly grasp a large crayon but was unable to scribble or imitate lines, was able to transfer cubes from one hand to another with guidance to release, and was also able remove pegs from a pegboard with guidance (id.).  The student enjoyed sensorimotor activities (id.).

In finding that the district failed to demonstrate the sufficiency of the evaluative information before the CSE, the IHO specifically pointed to the lack of evaluation in the areas of speech-language therapy, OT, and PT (IHO Decision at p. 10).  However, as summarized above, the CSE had before it other sources of information from which it could glean the student's needs in the related service areas, not the least of which was the input from the student's then-current providers.  Moreover, according to the IEP, the parents agreed that the student's PT and OT mandates should remain the same as the prior school year and agreed with the goals in these areas (Parent Ex. M at p. 37).  To be sure, the IEP itself reflects the CSE's recommendation that a formal speech-language evaluation of the student be conducted (id. at pp. 7, 37).  However, the CSE's determination to seek information in the future was not necessarily a concession that the information then before it was not sufficient; rather, the IEP explains that the evaluation would be sought as related to the parents' request for daily speech-language therapy by a speech-language pathologist certified in PROMPT (id.).[15]  In the meantime, the CSE agreed to increase the student's speech-language therapy mandate by adding two weekly individual sessions in the classroom to the three individual sessions in the therapy room the student had been receiving leading up to the June 2024 CSE meeting (id. at p. 12; compare Dist. Ex. M at p. 28, with Parent Ex. J at p. 15).

The IHO also found that an assistive technology checklist was not an appropriate evaluation (IHO Decision at p. 10).  The hearing record includes an assistive technology checklist dated May 22, 2024, completed by the student's special education teacher and speech-language pathologist and signed by the student's mother (Dist. Ex. 9); however, it is unclear whether the June 2024 CSE considered the document.  Ultimately, the June 2024 IEP included a recommendation for a speech generating communication device (QuickTalker 23) for the student at that time (Parent Ex. M at pp. 12, 29).  Accordingly, even if the district should have conducted a further evaluation to consider potential benefits of assistive technology, it would not render the IEP inadequate as the IEP addressed the student's needs in this area by recommending an assistive technology device for the student (see D.B. v. Ithaca City Sch. Dist., 690 Fed. App'x 778, 782 [2d Cir. May 23, 2017]).

Based on the foregoing, the evidence in the hearing record demonstrates that the June 2024 CSE had sufficient information about the student in all areas related to the suspected disabilities and from a variety of sources.  Accordingly, I do not agree with the IHO's determination that the lack of evaluations in the student's related service areas supported a finding that the district denied the student a FAPE.  I turn now to examine whether the district met its burden to prove that CSE recommended programming and services to address the student's identified needs.

2. Interfering Behaviors

Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., 361 Fed. App'x 156, 160 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172).  State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider developing a BIP for a student that is based upon an FBA (8 NYCRR 200.4[d][3][i], 200.22[a]-[b]).  Additionally, a district is required to conduct an FBA in an initial evaluation for students who engage in behaviors that impede their learning or that of other students (8 NYCRR 200.4[b][1][v]).

State regulations define an FBA as "the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment" and

include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it

(8 NYCRR 200.1[r]).  According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors (8 NYCRR 200.22[a][2]).  An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement" (8 NYCRR 200.22[a][3]).

Although State regulations call for the procedure of using an FBA when developing a BIP, the Second Circuit has explained that, when required, "[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all" (R.E., 694 F.3d at 190).  The Court also noted that "[t]he failure to conduct an FBA will not always rise to the level of a denial of a FAPE," but that in such instances particular care must be taken to determine whether the IEP addresses the student's problem behaviors (id.).

With regard to a BIP, the special factor procedures set forth in State regulations note that the CSE shall consider the development of a BIP for a student with a disability when:

the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; (ii) the student's behavior places the student or others at risk of harm or injury; (iii) the CSE or CPSE is considering more restrictive programs or placements as a result of the student’s behavior; and/or (iv) as required pursuant to [8 NYCRR 201.3]

(8 NYCRR 200.22[b][1]).

If the CSE determines that a BIP is necessary for a student "[t]he [BIP] shall identify: (i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors . . . ; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals" (8 NYCRR 200.22[b][4]).

The district's failure to develop a BIP in conformity with State regulations does not, in and of itself, automatically render the IEP deficient, as the IEP must be closely examined to determine whether it otherwise addressed the student's interfering behaviors (see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 80 [2d Cir. 2014]; F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 6-7 [2d Cir. Jan. 8, 2014]; M.W. v. New York City Dep't of Educ., 725 F.3d 131, 139-41 [2d Cir. 2013]; R.E., 694 F.3d at 190).

As briefly noted above, the June 2024 IEP indicated that, according to the neuropsychological evaluation report, the student, "often wander[ed] without regard [to] safety, repeat[ed] physical movements over and over, and los[t] awareness of what [wa]s happening around him" (Parent Ex. M at p. 5).  In addition, "[he] sometimes ha[d] toileting accidents, bec[a]me[] fixated on parts of objects, harm[ed] himself, use[d] strange or repetitive speech, [ate] non-food items, and engage[d] in compulsive behavior" (id.).  The IEP also reported information from the neuropsychological evaluation report that, at the time of the evaluation, the student had been "yelling and slapping walls" (id. at p. 6).

Under special factors, the June 2024 CSE indicated that the student did not need strategies, including positive behavioral interventions, supports and other strategies to address behaviors that impeded the student's learning or that of others nor did he need a BIP (Parent Ex. M at p. 12).

In asserting that the IHO erred in finding that the district should have conducted an FBA and developed a BIP for the student, the district asserts that "there [wa]s nothing in the record to suggest the Student's behaviors were impeding the Student's learning or that of others" (Answer & Cr.-App. ¶ 9).  However, given allegations in the parents' due process complaint notice that the district should have conducted an FBA and developed a BIP (see Parent Ex. A at pp. 8-9), it was the district's burden to produce documentation that the student's behaviors were not impeding the student's learning or that of others.  For example, although the student's May 2023 IEP, which was before the June 2024 CSE, included a recommendation for use of a classroom-wide behavioral plan and included an annual goal for the student to improve his ability to exhibit self-control with short-term objectives to work towards remaining in this seat and listening to adults or peers (Parent Ex. J at pp. 4, 7), the district did not present evidence of whether the student made progress toward achieving this goal or regarding the use of the class wide behavior plan.

Moreover, while not listed as a document considered by the June 2024 CSE, according to the student's father, the student's pediatric neurologist authored a letter that was provided to the district prior to the May 2023 CSE meeting (Parent Ex. O ¶ 22; see Parent Ex. E).[16]  The February 2023 letter from the student's pediatric neurologist recommended, among other things, an FBA and a BIP if the student's maladaptive behaviors became problematic (Parent Ex. E at p. 3).  Additionally, within the April 2024 neuropsychological evaluation of the student that was before the CSE, the clinical psychologist recommended an FBA and ongoing use of a BIP for the student (Parent Ex. L at p. 10).

The district provided no rationale at the impartial hearing for why it determined not to conduct an FBA or develop a BIP.  "The 'purpose of an FBA is to ensure that the IEP drafters have sufficient information about the student's behaviors to craft a plan that will appropriately address those behaviors.'" (L.O., 822 F.3d at 111, quoting R.E., 694 F.3d at 190).  Here, the June 2024 CSE identified the student's behavioral needs by predominately relying on information from the student's private neuropsychological evaluation.

Although the IEP included some supports to address the student's behavioral concerns, such as positive reinforcement and "0.8" paraprofessional services on an individual basis (Parent Ex. M at pp. 11-12, 29), considering the below discussion regarding the district's failure to meet its burden to prove that the June 2024 IEP addressed the student's needs, I find in this instance that the district's failure to conduct an FBA or develop a BIP for the student constituted a procedural violation, which contributes to a finding that the district denied the student a FAPE for the 2024-25 school year.

3. ABA

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

The hearing record includes an April 2023 letter that the parents submitted to the CSE from the student's former early intervention ABA instructor, a board-certified behavior analyst (BCBA), which described that the student benefited from ABA services (see Parent Ex. H).[17]  In the letter, the BCBA indicated that, through the use of ABA, the student gained skills such as increased eye contact, increased vocalizations, "containerizing," infrequently pointing to request, following several simple instructions, and engaging in play with simple toys (id.).  The BCBA opined she highly recommended that the student be afforded the opportunity to participate in an intensive ABA program, noting he exhibited "significant delays in all developmental domains and this method has proven to be the most successful" (see id.).

According to the father, the student was recommended to receive ABA in preschool during the 2022-23 school year but, ultimately, as discussed above, did not attend the program for the majority of the year due to the lack of a paraprofessional (Parent Ex. O ¶¶ 5, 10-15).  For the 2023-24 school year, the student attended public school pursuant to the May 2023 IEP, which did not mandate ABA (see Parent Exs. J; O ¶ 34).  The parents were concerned with the student's lack of progress during 2023-24 school year (see Parent Ex. O ¶ 34).

Within the April 2024 neuropsychological evaluation report considered by the June 2024 CSE, the neuropsychologist recommended the use of ABA methodology in the instruction of the student in school as well as at-home ABA services (Parent Ex. L at p. 10).  The neuropsychologist opined that the student's "extremely limited verbal and social communication skills and tremendously delayed cognitive and academic skills significantly interfere[d] with learning and advancement" (id. at p. 9).  The neuropsychologist noted the student "unfortunately missed out on many potential interventions as a result of the pandemic, frequent illness, and a lack of staffing," further opining that missed opportunities created "an even more urgent need now for not only intensive services but also highly on target ones pinpointed to specific needs" including an ABA classroom with "language infusion" and daily PROMPT speech therapy to address both the severity of the autism spectrum disorder and the lack of language development (id.).  Further, the neuropsychologist opined the student needed "very specific and tailored intervention using discrete trials" (id.).[18]

The June 2024 IEP indicated that, during the CSE meeting, the parents, the parents' advocate, and the neuropsychological evaluator expressed that the student required more supports such as direct ABA to appropriately support his needs and progress (Parent Ex. M at pp. 4, 37).  The IEP does not reflect the CSE's rationale for declining to recommend ABA for the student but, instead, states that a recommendation for SETSS was not warranted at the time as the student was "able to be supported with his full current program" (id. at pp. 7, 37).[19]

In its answer with cross-appeal, the district argues that the April 2023 letter "has no probative value" since the BCBA had not worked with the student since December 2021 and her instruction was remote.  The district's contention only goes to the weight that should be accorded the April 2023 letter, but the district fails to point to different information before the CSE to weigh against this letter and the neuropsychological evaluation regarding whether the student could receive educational benefit without ABA.  The district argues that the student was making progress in the district's program without the provision of ABA;[20] however, the district's statement in this regard is without citation to the hearing record.  Indeed, the hearing record contains no progress reports or report cards and includes little other documentation of the student's progress during the 2023-24 school year leading up to the June 2024 CSE meeting.  The district's copy of the May 2023 IEP included one reporting out of three on the student's progress towards achieving his annual goals (Dist. Ex. 1 at pp. 6-14).[21]  However, without the additional reports on the student's progress as the year progressed, this limited information does little to substantiate the district's claim that the student made progress.  The June 2024 IEP shows that the student's raw scores on the SANDI increased during the 2023-24 school year as summarized above; however, the IEP does not describe what the raw scores meant or detail the specific skills gained by the student during that time (Parent Ex. M at pp. 1, 3).  Thus, without additional context or explanation, the scores on their own do not demonstrate that the student made progress during the 2023-24 school year.

Finally, to counter the documents that presented a recommendation for ABA, the district points to a letter from a pediatric neurologist dated February 14, 2023, which did not reference a recommendation for ABA.  The February 2023 letter confirmed the student's receipt of diagnoses and recommended, among other things, a classroom setting "with [a] small[] student to teacher ratio," programming directed and taught by educators and consultants with experience in special education for individuals with autism spectrum disorder, social skills instruction, behavioral supports, related services and parent training "to generalize the skills learned in school to home and community setting" (Parent Ex. E at pp. 1-4).  The pediatric neurologist opined that, while individual sessions may be warranted, therapy should incorporate dyadic or small group sessions with peers as language progresses and noted that it was "also critical that caregivers are trained in all communication strategies in order to best generalize skill acquisition" (see id.).

Given the other evidence in the hearing record, I do not find that the February 2023 letter from the pediatric neurologist that does not mention methodology is sufficient to counter evidence of a consensus before the CSE that the student needed ABA in order to receive educational benefit.  The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate the "clear consensus" (R.E., 694 F.3d at 194).

A review of the evidence as a whole reveals that no substantive evidence, professional rationale, or clinical justification was documented or offered to explain or defend the CSE's decision not to recommend ABA for the student, nor was any witness presented at the hearing to testify on this point.  The IHO found the district failed to meaningfully refute or explain its refusal, either procedurally or substantively.  Specifically, the IHO noted that the "conclusory statements throughout the IEP" did not provide any insight into any rationale to any of the recommendations provided (IHO Decision at p. 10).

Accordingly, in this instance, the CSE's failure to explain its rationale for why the district did not recommend ABA despite the parents' concerns, combined with the lack of testimonial or documentary evidence to support the district's position, leads me to conclude that the IHO correctly held that the district failed to meet its burden to prove that it offered the student a FAPE for the 2024-25 school year.

4. Speech-Language Therapy

As noted above, the April 2024 neuropsychological evaluation report included a recommendation for daily PROMPT speech-language therapy (Parent Ex. L at p. 9).  The June 2024 IEP indicated the parents, parent advocate, and neuropsychological evaluator believed the student required more supports including speech-language therapy by a provider that was PROMPT trained (Parent Ex. M at pp. 4, 37).  According to the IEP, the CSE indicated that, at the time of the meeting, there were no "prompt speech certified providers" within the school (id. at pp. 7, 37).

Initially, the statement in the IEP that the school did not have a PROMPT certified provider was not an appropriate basis for declining to recommend the methodology for the student, as a CSE must make recommendations based on a student's needs, not based on administrative concerns relating to staffing (Placements, 71 Fed. Reg. 46,588 [Aug. 14, 2006] ["Although the Act does not require that each school building in [a district] be able to provide all the special education and related services for all types and severities of disabilities[, i]n all cases, placement decisions must be individually determined on the basis of each child's abilities and needs and each child's IEP, and not solely on factors such as . . . availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience"]; see also Letter to Clarke, 48 IDELR 77 [OSEP 2007] [stating that service delivery determinations must be made by the CSE "based on a child's individual and unique needs, and cannot be made as a matter of general policy by administrators, teachers or others apart from the IEP Team process"]).

In its answer with cross-appeal, the district argues that the student was making progress towards speech-language therapy goals receiving two sessions per week without PROMPT methodology.[22]  In support of its statement regarding the student's progress, the district cites to its copy of the June 2024 IEP but does not identify how the document reflects the student's progress leading up to the June 2024 CSE (see Dist. Ex. 3).[23]  With respect to the period of time leading up to the June 2024 CSE, the district's copy of the May 2023 IEP included one progress report out of an anticipated three, which stated that the student had made no progress or little progress toward achieving his speech-language therapy goals (Dist. Ex. 1 at pp. 9-10).  Other than statements of the student's then-present levels of performance in the June 2024, the hearing record does not include a progress report from the student's speech-language pathologist.  Moreover, although the May 2023 IEP included short-term objectives that the student would expand his vocabulary, length of utterances, and use "words more than gestures to communicate" (Parent Ex. J at p. 9), the June 2024 IEP reflected that the student communicated "mainly through gestures" (Parent Ex. M at p. 6).  Similarly, although the May 2023 IEP included short-term objectives for the student to understand and follow one- and two-step directives and simple commands with the therapist (Parent Ex. J at p. 10), the June 2024 IEP reflected that the student responded "inconsistently" to commands that were "highly familiar and repetitive" (Parent Ex. M at p. 6).

While the IEP does not reflect a recommendation for PROMPT methodology to support the student's needs, the June 2024 CSE did increase the student's speech-language therapy mandate to five sessions per week and added a speech generating communication device to assist the student's communication (compare Parent Ex. M at p. 28, with Parent Ex. J at p. 15).  Moreover, as the IHO noted, the April 2024 neuropsychological evaluation did not elaborate upon how PROMPT would better address the student's needs (Parent Ex. L at p. 9; see IHO Decision at p. 16).[24]  Given the CSE's adjustment of the student's programming, it is less clear that the lack of a recommendation for PROMPT contributed to a denial of a FAPE to the student in this instance.  As the IHO reasonably noted, it is possible that the student could benefit from the increase to five sessions per week of speech-language therapy without PROMPT techniques (IHO Decision at p. 16).  Finally, even if the June 2024 CSE's failure to recommend PROMPT in this instance contributed to a denial of a FAPE, as discussed below, I would not find that the hearing record supported an award of compensatory education.

C. Compensatory Education

The next issue to be determined in light of the above discussion is whether the IHO erred in the relief awarded.  Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).  The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).  Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

1. The 2022-23 School Year

In her decision, the IHO ordered the district to determine what services were missed by the student during the 2022-23 school year, including summer 2023, and provide compensatory hours on a quantitative, hour for hour basis to include 1:1 ABA, OT, speech-language therapy, and PT, pursuant to the CPSE IEP that corresponded to the 12-month 2022-23 school year, starting from February 6, 2023 until the end of the school year (IHO Decision at p. 19).[25]  Initially, with respect to the parents' appeal, as discussed above, the IHO erred in limiting relief for the 2022-23 school year to that period of time after the accrual date, February 6, 2023.  Rather, the parents could seek relief for their implementation claims reaching back to the beginning of the 2022-23 school year.  Accordingly, the relief awarded by the IHO for the 2022-23 school year will be modified to encompass the full school year beginning in September 2022.

The district argues in its cross-appeal that the IHO erred in awarding individual ABA compensatory services based on the father's testimony that the student's CPSE IEP included a recommendation for ABA.  As noted above, the student's June 2021 CPSE IEP did not include a recommendation for ABA (see Parent Ex. D) and the hearing record does not include a copy of a CPSE IEP for the student for the 2022-23 school year, but, during the impartial hearing, the district did not rebut the parents' contention that an IEP was in place or that the student was mandated to receive ABA for the 2022-23 school year (see Parent Ex. O ¶¶ 5-7)..  In its cross-appeal, the district now contends that no IEP was developed for the student for the 2022-23 school year; however, for the same reasons set forth above, I decline to entertain the district's contention in this regard given that it failed to raise it during the impartial hearing.

However, given the district's current position that an IEP does not exist, the IHO's award for the district to determine the services that the student missed during the 2022-23 school year could prove problematic.  Accordingly, in addition to extending the relief awarded to the beginning of the school year, I will further modify the IHO's award to reflect the following.  During the impartial hearing, the parents calculated that the student missed 31 weeks of school during the 2022-23 school year (IHO Ex. VII at p. 2) and the district offered no evidence to the contrary.  According to the father's testimony, the program in place for the student at the beginning of the 2022-23 school year included an 8:1+2 special class with ABA services, speech-language therapy, OT, PT, and classroom and transportation paraprofessionals (see Parent Ex. O ¶¶ 5-7).  The father did not specify the frequencies or durations of the services.  Accordingly, upon reviewing the hearing record, I will calculate an award of compensatory education taking into account the frequencies and durations of the related services recommended in the June 2021 IEP (i.e., three 30-minute sessions per week each of individual speech-language therapy, OT, and PT) (Parent Ex. D at pp. 1, 10-11).  Absent any other information upon which to base a calculation of an appropriate award, I will use the parent's proposal that an award of ABA be based on three hours per day of ABA (IHO Ex. VII at p. 2), which appears to be reasonable taking into account the evidence in the hearing record.[26]

Accordingly, for the 2022-23 school year, the district is directed to provide the student with 465 hours of 1:1 ABA services, 46.5 hours of speech-language therapy, 46.5 hours of OT, and 46.5 hours of PT.

2. The 2024-25 School Year

Preliminarily, the parents assert that, while the IHO correctly found a denial of a FAPE for the student for the 2024-25 school year, she improperly considered the parents' requested relief of adding ABA, BCBA supervision, parent counseling and training, and PROMPT speech-language therapy into the student's 2024-25 school year IEP to be "prospective" and ordered the CSE to reconvene rather than order an appropriate program (Req. for Rev. at pp. 3-7).

An award of prospective relief in the form of IEP amendments and the prospective placement of a student in a particular type of program and placement, under certain circumstances, has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y. Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]).  Concerns about circumventing the CSE process arise most prominently in matters where the school year challenged has ended and, in accordance with its obligation to review a student's IEP at least annually, the CSE would have already convened to produce an IEP for the following school year (see V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *7 [S.D.N.Y. Aug. 17, 2022] [acknowledging that "orders of prospective services are disfavored as a matter of law" and, in the matter at hand, indicating that "the CSE should have already convened for subsequent school years]; M.F. v. N. Syracuse Cent. Sch. Dist., 2019 WL 1432768, at *8 [N.D.N.Y. Mar. 29, 2019] [declining to speculate as to the likelihood that the district would offer the student a FAPE "in the future" and, therefore, denying prospective relief]; Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 [D.D.C. Aug. 24, 2012] [noting that prospective placement is not an appropriate remedy until the IEP for the current school year has been completed and the parent challenges the IEP for the current school year]).

Here, at the time of the IHO's decision, the 2024-25 school year had not yet concluded and, therefore it may have been appropriate to award IEP modifications.  At this point, however, the school year has now concluded and, therefore, I find that any request for modifications to the student's IEP for the 2024-25 school year has been rendered moot.

As for compensatory education for the 2024-25 school year, on appeal, the parent seeks 1,260 hours of 1:1 ABA in-school services, 420 hours of 1:1 ABA home-based services, 42 hours of BCBA supervision, and 105 hours of PROMPT-based speech-language therapy.  Although the district did not propose an alternative compensatory remedy, an outright default judgment awarding compensatory education—or as in this case, any and all of the relief requested without question—is a disfavored outcome even where the district's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious (see Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005] [rejecting "lump sum" grant of tutoring as a compensatory remedy for a multi-year denial of FAPE]).  Indeed, an award ordered so blindly could ultimately do more harm than good for a student (see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017]).  Moreover, if the sum and total of the compensatory education relief requested by the parent was ordered, including the monetization thereof, it could begin to resemble a punitive award (see C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010] [noting that "[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education."]).

Although the district failed to meet its burden to prove that the June 2024 IEP was reasonably calculated to enable the student to receive educational benefit, the parents' request for compensatory education exceeds what is required in order to put the student in the position he would have been had the district offered the student a FAPE for the 2024-25 school year.  Indeed, taking into account the whole of the compensatory education, the request appears targeted to maximize the student's potential, which is not the purpose of compensatory education (see Application of a Student with a Disability, Appeal No. 16-033; cf. Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Instead, an award of compensatory education should place the student in the position that he would have been in had the district acted properly (see Parents of Student W., 31 F.3d at 1497 [holding that "[a]appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA" and finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]).

Unlike the 2022-23 school year, during which the student missed all instruction and services for most of the year, for the 2024-25 school year, there is no allegation that the district did not deliver the services mandated on the June 2024 IEP to the student or that the student missed instruction.  Accordingly, any award of compensatory education must take into account educational benefit that the student received as a result of the programming delivered (see Somberg v Utica Community Schs., 2017 WL 242840, at *4 [E.D. Mich Jan. 20, 2017] [declining to award full-time tutoring for years during which student was denied a FAPE, since the student "did make some advancement over the course of his time in high school, even though he was not presented with what he was due under IDEA"], aff'd, 908 F.3d 162 [6th Cir. 2018]).  Taking this into account, I will examine the parents' requests for compensatory ABA and PROMPT speech-language therapy in turn.

a. ABA

The parents' request for compensatory ABA services for the 2024-25 school year appears to be based on the recommendations of the neuropsychologist who conducted the April 2024 neuropsychological evaluation (see Parent Exs. L; P).  The April 2024 neuropsychological evaluation included a recommendation for ABA in school and at home but did not specify a frequency or duration (see Parent Ex. L at pp. 9-10).  However, the hearing record also includes a letter written by the neuropsychologist dated January 7, 2025, which states the student had received a diagnosis of "Autism Spectrum Disorder, Level 3, requiring very substantial support due to limited ability to communicate and interact socially" (Parent Ex. P).  According to the letter, "[ABA] is vital for such children" (id.).  Further, in the letter, the neuropsychologist recommended the following for the student: 1:1 ABA push-in at the community school for six hours per day; one hour per week of BCBA supervision; one hour per week of parent counseling and training by a BCBA; and two hours per day of ABA at-home (see id.).

The neuropsychologist's recommendations in the letter for 40 hours per week of ABA services are prospective in nature and are contemplated as the student's main programming.  The letter did not set forth a particular compensatory education award that might be appropriate for the student to remedy a denial of a FAPE for the 2024-25 school year that would take in to account the student's receipt of the programming recommended in the June 2024 IEP.  The evaluation, in contrast, does reference that home-based ABA should be granted to remedy "all the time lost due to the pandemic and lack of services providers" (Parent Ex. L at p. 11).  Similarly, in the evaluation, the neuropsychologist recommended "intensive services," in part, to make up for "missed . . . potential interventions as a result of the pandemic, frequent illness, and a lack of staffing" (id. at pp. 9-10).  However, missed ABA services during early intervention, as a result of the COVID-19 pandemic, or due to the student's illness are not before me for the purposes of crafting relief, and relief to remedy the lack of staffing during the 2022-23 school year is addressed above.

The hearing record is undeveloped on the question of the benefit that the student received during the 2024-25 school year from the district's programming.  Yet, I am not convinced that an hour-for-hour award based on six hours per day of in-school ABA services is warranted to make up for the district's denial of a FAPE in this instance.  This would be the equivalent of almost a full school day of services notwithstanding that the student presumably attended the recommended 6:1+1 special class during the 2024-25 school year.  Further, as noted above, I do not find that the CSE had before it information to indicate that the student required home-based services in order to make progress in the classroom setting and, to the extent that the neuropsychological evaluation recommends home-based ABA to make up for gaps in the student's services for periods of time prior to the 2024-25 school year, those are not tethered to the denial of FAPE for which I am now crafting a remedy (see Y.S. v. New York City Dep't of Educ., 2024 WL 4355049, at *23 [S.D.N.Y. Sept. 30, 2024] [declining to award compensatory education "wholly untethered from a correlative FAPE denial"], vacated in part on other grounds and remanded, 2025 WL 2910307 [2d Cir. Oct. 14, 2025]).  Accordingly, I decline to calculate an award that includes two hours per day of ABA services in the home.  Moreover, an award must take into account that the services will be delivered in addition to a full day program, and the diminishing returns that may result from an over-extended schedule (see M.M., 2017 WL 1194685, at *8  ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity"]).[27]

Although it would be better to have a more developed hearing record to identify an appropriate compensatory award, I will calculate an award of compensatory ABA based on one hour per day of ABA services.  As noted, the neuropsychologist's recommendations contemplated a full day program of ABA, whereas for the 2024-25 school year the student attended a special class.  By way of comparison, according to the father, the student was recommended to attend a special class for the 2022-23 school year and was also entitled to ABA services (see Parent Ex. O ¶ 5).  The parent sought three hours per day of compensatory ABA for the 2022-23 school year (see IHO Ex VII at p. 2), which as described above, is deemed an appropriate award to make up for the student's inability to access both the special class and the ABA services.  Following this line of reasoning and, taking into account all of the foregoing including that the student attended a full-day special class during the 2024-25 school year, I find that an award of compensatory education based on one hour per day of ABA services is more reasonable.  Accordingly, for the 2024-25 school year, I will award 210 hours of compensatory ABA services.  As the neuropsychologist recommended what amounts to one hour of BCBA supervision for every eight hours of ABA services (see Parent Ex. P), I will award 26 hours of compensatory BCBA supervision.

b. PROMPT-Based Speech-Language Therapy

The parent seeks 105 hours of compensatory PROMPT-based speech-language therapy calculated based on five 30-minute sessions per week of the service.

As noted above, the neuropsychologist who evaluated the student on April 5, 2024, recommended the student receive daily speech-language therapy services implemented by a PROMPT trained speech-language pathologist (Parent Ex. L at p. 10).  Although the June 2024 CSE did not recommend PROMPT, it did increase the student's speech-language therapy mandate to five sessions per week and added a speech-generating device to the student's program (compare Parent Ex. M at p. 28, with Parent Ex. J at p. 15).  After the June 2024 CSE meeting, on June 22, 2024, the student was seen for a private speech-language evaluation (Parent Ex. N at pp. 1-3).[28]  Based on clinical observation, informal assessment, PROMPT system analysis observation, and parent report, the speech language pathologist who evaluated the student on June 22, 2024 recommended that he receive speech-language therapy utilizing PROMPT techniques two to three times per week for 30-minute sessions to target specific goals in relation to his severe receptive-expressive language and speech sound disorder given his chronological age of five years old (see id. at pp. 1, 3).  Further, the speech language pathologist indicated that, although the student did not respond to tactile prompts with sound, he did, however, accept the clinician touching his face and did not try to push her hand or move himself away, further indicating such acceptance of tactile prompting indicated a positive response to introducing PROMPT therapy hands-on techniques (see id. at p. 2).

The June 2024 speech-language evaluation presents a prospective service recommendation and does not offer any insight as to what the student may have required to place him in the position he would have been but for the district's denial of a FAPE for the 2024-25 school year.  In addition, I am not convinced that, in light of the CSE's recommendation for five 30-minute sessions per week of speech-language therapy—exceeding in frequency the recommendation in the June 2024 speech-language evaluation for two to three 30-mintue sessions per week of the service using PROMPT techniques—as well as the provision of a speech-generating device, that the student required any compensatory education in the area of speech-language therapy.  Further, there is no allegation that the student did not receive the speech-language therapy recommended in the June 2024 IEP.  Accordingly, the parents' request for 105 hours of PROMPT-based speech-language therapy is without support in the hearing record and, therefore, is denied.  However, the IHO's order for the CSE to reconvene to consider PROMPT for the student stands.

VII. Conclusion

The evidence in the hearing record supports the IHO's determination that the district failed to provide the student a FAPE for the 2024-25 school year.  The evidence in the hearing record further supports an order granting compensatory education services to the student for the 2022-23 and 2024-25 school years.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision, dated February 13, 2025, is modified by reversing those portions which limited compensatory education relief for the 2022-23 school year to that portion of the year after February 2023, directed the district to calculate compensatory education for the 2022-23 school year, and found that no compensatory education was warranted for the 2024-25 school year;

IT IS FURTHER ORDERED that, to remedy a denial of a FAPE for the 2022-23 school year, the district shall provide the student with 465 hours of compensatory ABA services, 46.5 hours of speech-language therapy, 46.5 hours of OT, and 46.5 hours of PT;

IT IS FURTHER ORDERED that, to remedy a denial of a FAPE for the 2024-25 school year, the district shall provide the student with 210 hours of compensatory ABA services and 26 hours of compensatory BCBA supervision; and

IT IS FURTHER ORDERED that the compensatory education award will expire within three years from the date of this decision.