I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from the decision of an impartial hearing officer (IHO) which denied the parent's request to be reimbursed for the costs of her son's privately-obtained play therapy and which denied the parent's request for compensatory educational services, consisting of tutoring and play therapy for the 2022-23, 2023-24, and 2024-25 school years.  Respondent (the district) cross-appeals from that portion of the IHO's decision which found that Academics West was an appropriate unilateral placement for the student for the 2024-25 school year.  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 Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).[1]  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[a]).  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

In February 2023, the student in this matter was initially found eligible to receive special education as a preschool student with a disability during the 2022-23 school year (see Parent Ex. W ¶¶ 3-6).[2]  Evidence in the hearing record reflects that, during the 2022-23 school year, he attended a district "general education" preschool classroom with "18 students, one teacher, and one paraprofessional" (id. ¶ 3).  The evidence also reflects that the student's preschool teacher referred him to the Committee on Preschool Special Education (CPSE) due to "concerns with his high activity level, poor impulse control, and self-directed behavior" (IHO Ex. I at p. 1).  According to the evidence in the hearing record, the student "would not follow directions or classroom routines, and he required a significant amount" of individual support; the student also reportedly "struggled to connect with peers and made no friends in his preschool class" (Parent Ex. W ¶ 4).  At the February 2023 CPSE meeting, the CPSE recommended that the student receive three hours per week of special education itinerant teacher (SEIT) services in a small group; occupational therapy (OT) in a small group, speech-language therapy services in a small group, and the services of a full-time, individual "behavior paraprofessional" (id.¶ 6).[3]^, [4]

On May 24, 2023, a CSE convened for a "turning-5" meeting, as the student was going to transition from receiving CPSE (preschool) services to receiving CSE (school-age) services, and developed an IEP for the 2023-24 school year (kindergarten) (Parent Ex. W ¶ 10).[5]  However, immediately after the May 2023 CSE meeting, the parent voiced her disagreement with the May 2023 IEP and requested another CSE meeting (id. ¶ 11).  As a result, a CSE reconvened on June 14, 2023, and found that the student was eligible to receive special education as a student with an other health impairment (see IHO Ex. I at p. 1).[6]   To address the student's needs, the June 2023 CSE recommended the following: a general education placement with integrated co-teaching (ICT) services for instruction in English language arts (ELA) (10 periods per week), mathematics (8 periods per week), sciences (3 periods per week), and social studies (2 periods per week); one 30-minute session per week of individual counseling services; two 30-minute sessions per week of OT in a small group; two 30-minute sessions per week of speech-language therapy in a small group; and the daily services of an individual paraprofessional for behavior support (id. at pp. 17-18, 22).  According to the June 2023 IEP, the parent indicated that she did not have "any academic concerns" about the student "at home" (id. at p. 2).  As reflected in the IEP, the student's instructional and functional levels in reading and mathematics were both identified as "[p]re-[k]indergarten" (id. at p. 22).

However, with regard to the student's social development, the June 2023 IEP reflected that, based on "[a]necdotal teacher records," the student's "non-compliant and aggressive behaviors include[ed] throwing and breaking toys, spitting, and pinching adults as well as hair pulling, hitting, and pinching classmates, tearing [or] ripping art work of classmates, and ripping paperwork and art work off of bulletin boards" (IHO Ex. I at p. 3).  In addition, the IEP indicated that the student had "difficulty keeping his hands to himself," noting further that he would sometimes "swing his arms and hit another child, not showing much awareness of his spatial boundaries" (id.).  The IEP further indicated that the student would "call out, not wait his turn, and jump ahead of instruction"; the student was also reported to have "difficulty remaining seated with the rest of the group during group lessons, such as morning circle, story time, and afternoon circle"; and the student engaged in "play that [wa]s destructive, which involve[d] throwing toys or ripping paper [or] books" (id.).  Overall, the IEP noted that the student's behaviors were "interfering with his ability to learn commensurate with his cognitive ability" (id.).  According to the parent, "cues ha[d] been established [in the home] to help [the student] redirect himself" (id.).  The June 2023 IEP indicated that, "[w]ithin the classroom, data analysis reflect[ed] trends regarding [the student's] current targeted behaviors," and although the "behavior[s] still exist[ed]," there had been a "small decline in the instances of targeted behavior and a small increased response in replacement behaviors" (id.).

Within the management needs section of the June 2023 IEP, the CSE noted that the student "would benefit from special education supports and services to address maladaptive and non-compliant behaviors that [we]re adversely impacting his ability to participate successfully in the classroom setting" (IHO Ex. I at p. 4).  The CSE also noted therein that the student "would benefit from related services to address communication delays as well as addressing his struggles with self-regulation and sensory seeking behaviors" (id.).  To address the student's management needs, the IEP included the following strategies and supports for the classroom and related services environments: verbal explanation prior to a transition and an activity commencing; verbal explanation, discussion, and reasoning with regard to how another person (adult or peer) would feel, especially prior to or after a situation within which a behavior might escalate; taking a walk or sensory break before behaviors escalate (i.e., drawing a picture, jumping, '"squishes"'); and using a reward system that positively reinforced replacement behaviors immediately and consistently (id.).[7]  According to the IEP, the student needed "extensive support in order for him to access the general education curriculum commensurate with his cognitive ability" (id. at p. 5).  It was also noted that, at that time, the student's "behaviors [we]re significantly interfering with his ability to function in a group setting" (id.).

In light of the student's social development and behavioral concerns, the June 2023 CSE indicated in the IEP that the student required "strategies, including positive behavioral interventions, supports and other strategies to address behaviors that impede[d] the student's learning or that of others" (IHO Ex. I at p. 5).  The June 2023 CSE also indicated in the IEP that the student required a behavioral intervention plan (BIP), and noted to "see attached" (id.).[8]  Finally, the June 2023 CSE developed annual goals to address the student's behavior needs (id. at pp. 6, 9, 11-13).

For kindergarten during the 2023-24 school year, the student attended a district public school (see Parent Ex. W ¶ 14).  Evidence in the hearing record indicates that, on September 11, 2023, the district began documenting behavior incidents involving the student through the use of occurrence reports (see Parent Ex. O at p. 46).[9]  The hearing record includes approximately 16 occurrence reports, during September 2023, describing the student's behaviors (id. at pp. 25-46).  Overall, the occurrence reports date from September 2023 through March 2024, and document various behavior incidents that involved both verbal and physical aggression by the student (id. at pp. 1-46).  According to the occurrence reports, over the course of the 2023-24 school year, the student engaged in behaviors at school that included the following: throwing toys, flipping over conference tables, hitting peers with a closed fist, biting teachers, kicking peers, taking objects from peers, hitting peers with objects, making raspberries or spitting in peers' faces, pushing peers, pulling teachers' hair, hitting teachers with an open hand, urinating on furniture, attempting to cut the power cords of a school staff's computer, throwing water bottles at peers, kicking teachers, leaving the classroom without permission, punching teachers, name-calling directed at his peer, chasing peers, and cursing at peers (id.).  At least one occurrence report noted an incident of verbal aggression on the school bus (id. at p. 6).

In light of the student's difficulties at school, the evidence indicates that the parent privately obtained play therapy services for the student beginning on or about September 23, 2023, delivered by a social worker (see Parent Ex. W ¶¶ 15-16; see also Parent Exs. T ¶¶ 1-2, 5; Q at p. 1).[10]  In an email to the district dated October 1, 2023, the social worker indicated that she had recently met with the student, and as she had suspected, the student was "getting triggered while he [wa]s at school" (Parent Ex. J).  The social worker indicated that she would "need time to help [the student] resolve the underlying causes for getting triggered," but in the meantime, she asked whether it was possible to move the student into a 12:1+1 special class placement "to buy some time" (id.; see Parent Ex. T ¶ 9).  The social worker asked what steps needed to occur in order to effectuate this classroom transfer, and she offered to provide "training to the staff on how to help [the student] when he bec[ame] triggered" (Parent Ex. J; see Parent Ex. T ¶ 10 [indicating that the district did not "cooperate" and did not make the student's "teaching team available for training").

Based on evidence in the hearing record, a CSE convened on October 2, 2023, and, at that time, the October 2023 CSE recommended a 12:1+1 special class placement for the student, rather than a general education placement with ICT services, as had been recommended by the June 2023 CSE (compare Parent Ex. W ¶ 17, with IHO Ex. I at p. 17).[11]  The evidence reflects that the October 2023 CSE continued to recommend related services consistent with the durations and frequencies set forth in the June 2023 IEP, together with the same services of a paraprofessional for behavior and special transportation services (compare Parent Ex. W ¶ 17, with IHO Ex. I at pp. 17-18, 21-22).[12]

In an email to the parent dated March 14, 2024, the district advised that an agency OT provider could no longer provide services to students at the public school site, but that the district was in the process of locating another OT provider who was expected to begin delivering services in April 2024 (see Parent Ex. N at p. 1).  To cover this lapse in services, the district provided the parent with related services authorizations (RSAs) and instructions to complete that process (id.).[13]

Evidence in the hearing record reflects that, over the course of four days in March and April 2024, the student underwent a neuropsychological evaluation (April 2024 neuropsychological evaluation), which had been awarded to the parent as a result of an impartial hearing held in or around February 2024 (see Parent Exs. G at p. 1; W ¶¶ 22-23).  The April 2024 neuropsychological evaluation included the administration of the following assessment measures to the student: the Beery-Buktenica Developmental Test of Visual Motor Integration (Beery VMI) (including the motor coordination and visual perception subtests); the Behavior Assessment System for Children—Third Edition (BASC-3), Parent Rating Scale; the Brown Executive Functioning/Attention Scales (Parent Rating Scale); the Clinical Evaluation of Language Fundamentals—Fifth Edition (CELF-5) (selected subtests); the NEPSY: A Developmental Neuropsychological Assessment—Second Edition (NEPSY-2) (selected subtests); the Test of Variables of Attention (TOVA); the Wechsler Individual Achievement Test—Fourth Edition (WIAT-IV); and the Wechsler Preschool and Primary Scale of Intelligence—Fourth Edition (WPPSI-IV) (selected subtests) (see Parent Ex. G at p. 6).[14]  In addition, a classroom observation was conducted (id. at pp. 4-5).  Overall, the psychologist indicated that the student's testing results, together with parent and teacher reports, "support[ed] the presence of Attention-Deficit Hyperactivity Disorder [ADHD], Combined Type" (id. at pp. 16-17 [emphasis in original]).  The psychologist also found that the student met the "diagnostic criteria for Oppositional Defiant Disorder (ODD), Mild" (id. at pp. 17-19 [emphasis in original]).[15]

Regarding cognitive development, the student's performance on the WPPSI-IV yielded standard scores and percentiles that ranged from average to significantly above average, and achievement of a full-scale intelligence quotient (IQ) of 117 (above average range) (see Parent Ex. G at p. 28).  In summarizing the student's "cognitive profile of strengths and weaknesses," the psychologist noted that the student had "strong" verbal and language skills, as well as "strong" visual-spatial and fluid reasoning skills; however, despite those strengths, the student's testing revealed "weaknesses in sustained attention, impulsivity, frustration tolerance, and following directions" (id. at p. 19).  Additionally, the psychologist indicated that the student's "attentional difficulties" might be "accounted for by a diagnosis of [an ADHD]" and that these "issues ma[d]e it difficult for him to consistently demonstrate his strong abilities and place[d] him at risk of not progressing and regressing socially, emotionally, and behaviorally if not provided with the appropriate amount of support" (id.).  According to the psychologist, the student's "struggle with impulsivity and hyperactivity ha[d] no doubt impacted his mood and frustration level, which in turn ha[d] led to oppositional symptoms in his current learning environment" (id.).  Additionally, the psychologist noted that the "frequency and intensity of [the student's] aggressive, disruptive, and defiant behaviors [we]re inconsistent with the typical behavior expected for his age and developmental level" (id. at p. 18).

The April 2024 neuropsychological evaluation included the following recommendations: "a small, structured learning environment with instructors trained to teach [students] with ADHD and ODD;" support within the classroom to "attend school, learn, and complete his work"; a functional behavioral assessment (FBA) and the development and implementation of a BIP; "positive reinforcement and proactive strategies to encourage and reinforce desired behaviors"; "data collection and analysis" to track progress toward annual goals; and a "clear protocol for managing crisis situations" (Parent Ex. G at pp. 20-21).  The psychologist also recommended the use of a multisensory curriculum and individualized attention throughout the school day, "assistance to ensure he [wa]s on-task and appropriately challenged throughout the day," testing accommodations, and family counseling (id. at p. 21).  Additionally, the psychologist indicated that, with regard to the student's ADHD, the parent should receive parent education, and the student should receive medication, regular exercise, individual therapy, and strategies, such as breaking down instructions, use of a timer and visual reminders, positive praise, and a reward system (id. at pp. 22-23, 25).  Similarly, with regard to the student's ODD, the psychologist recommended seeking professional help, establishing clear and consistent rules, positive reinforcement, effective communication, teaching problem-solving skills, implementing a structure and routine, managing transitions, modeling positive behavior, and encouraging coping mechanisms (id. at pp. 23-25).

On June 24, 2024, a CSE convened to conduct the student's annual review and developed an IEP for the student for the 2024-25 school year (first grade) (see IHO Ex. II at pp. 1, 19).[16]  Finding that the student remained eligible to receive special education as a student with an other health impairment, the June 2024 CSE recommended that the student receive instruction in ELA, mathematics, social studies, and sciences in a 12:1+1 special class placement, together with the same related services as those recommended in the student's June 2023 IEP to address his needs (compare IHO Ex. II at pp. 14-15, with IHO Ex. I at p. 17).  According to the June 2024 IEP, the student continued to require a BIP to address his "aggression and noncompliant behaviors in the classroom" (compare IHO Ex. II at p. 5, with IHO Ex. I at p. 5).  The June 2024 CSE also modified the strategies to address the student's management needs in the IEP from those recommended in the June 2023 IEP (compare IHO Ex. II at pp. 4-5, with IHO Ex. I at p. 4).  As parent concerns, the June 2024 CSE noted that the parent wanted the student placed in a "school for students who [we]re twice exceptional" and for the CSE to defer his placement to the district's Central Based Support Team (CBST) for a "non public day school placement" (IHO Ex. II at p. 21).  In addition, the June 2024 CSE noted that the psychologist attending the meeting "fe[lt] that [the student's] behavioral difficulties [we]re a product of his current school environment" (id.).

A. Due Process Complaint Notices

By due process complaint notice dated July 18, 2024 (July 2024 due process complaint notice), the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2022-23 and 2023-24 school years based on various procedural and substantive violations (see Parent Ex. A at pp. 1, 3-11).  As relief for the alleged violations, the parent sought an order directing the district to reimburse her for out-of-pocket costs incurred for privately-obtained play therapy and to fund a bank of compensatory educational services to be determined at the impartial hearing and to be delivered by a provider selected by the parent (id. at p. 11).

In an amended due process complaint notice, dated September 6, 2024, the parent alleged that the district failed to offer the student a FAPE for the 2022-23, 2023-24, and 2024-25 school years (see Parent Ex. B at pp. 1).  The amended due process complaint notice included the same procedural and substantive violations from the July 2024 due process complaint notice as a basis upon which to conclude that the district failed to offer the student a FAPE for the 2022-23 and 2023-24 school years, but included additional procedural and substantive violations as a basis upon which to conclude that the district failed to offer the student a FAPE for the 2024-25 school year (compare Parent Ex. B at pp. 3-11, with Parent Ex. A at pp. 3-11).  As relief in the amended due process complaint notice, the parent reiterated her request for reimbursement of costs incurred for privately-obtained play therapy and funding for a bank of compensatory educational services, but added that she was seeking to prospectively place the student in an appropriate nonpublic school, together with round-trip transportation services (compare Parent Ex. B at p. 12, with Parent Ex. A at p. 11).  In a footnote, the parent indicated that she had not yet identified an appropriate nonpublic school that would accept the student on a "Connors funding basis" for the 2024-25 school year; however, "[d]ue to the urgency of [the student's] situation and need for an appropriate special education placement," the parent sought "intervention of the IHO through this amendment while she continue[d] to search for such a placement" (Parent Ex. B at p. 12, n.1).  The parent indicated that if she located a placement while the "amended due process complaint [wa]s pending," she would provide the district with a 10-day notice of unilateral placement and "notify the IHO and the [district] of the same" (id.).

B. Events Post-Dating the Due Process Complaint Notices

In a letter dated September 16, 2024, the parent informed the district that the student had been admitted to Manhattan Star Academy (MSA) for the 2024-25 school year and that she would be seeking funding for the costs of the student's tuition at MSA for the 2024-25 school year, as well as seeking round-trip transportation for the student (see Parent Ex. C at pp. 1, 5; see also Parent Ex. D).

On or about October 24, 2024, an IHO from the Office of Administrative Trials and Hearings (OATH) was assigned to this matter (see IHO Decision at p. 3).

Thereafter, in a letter dated November 26, 2024, the parent informed the district that MSA was unable to meet the student's needs, and as a result, the student had been "asked to leave the school effective November 27, 2024" (Parent Ex. E at p. 1; see Parent Ex. F).  The parent also informed the district that, as of November 27, 2024, the student would be without any school placement and she requested an immediate school placement for the student (see Parent Ex. E at p. 1).  In addition, the parent noted that she intended to place the student in an "appropriate private or independent school and seek tuition funding," as well as transportation services, if the district failed to offer the student an immediate and appropriate school placement (id. at pp. 1-2).

C. Impartial Hearing Officer Decision

On December 11, 2024, the parties proceeded to an impartial hearing, and on that date, the IHO held a prehearing conference (see Tr. pp. 1-11).

In between the first and second day of the impartial hearing, the student was assessed on December 27, 2024 by a special education teacher employed as an "Academic Coach [or] Learning Specialist" (academic coach) at "Learning Journey," an "academic tutoring company" (Parent Ex. U ¶¶ 1, 3, 6; see Parent Ex. H at pp. 1-6).  According to the evidence in the hearing record, the academic coach administered the Wide Range Achievement Test—Fifth Edition (WRAT-5) to the student to assess his "current academic functioning" (Parent Ex. U ¶ 6).  The evidence reflects that the WRAT-5 provided an "accurate way to assess and monitor reading, spelling and math skills" and helped to "identify possible learning disabilities" (Parent Ex. H at p. 1).

Thereafter, the impartial hearing resumed for a second day on January 15, 2024 (see Tr. pp. 12-96).  At that proceeding, the parent presented four witnesses to testify (see Tr. p. 13).  The parent testified that she had "researched numerous potential private school placements that could potentially be appropriate" for the student, including Academics West (Parent Ex. W ¶ 31).  The parent also testified that, "[d]ue to [her] income level, [she] c[ould not] afford to pay [the student's tuition to any of these schools up front and s[ought] tuition reimbursement" from the district and a "Connors placement" (id.).  She also testified that, at that time, the student was in the process of "second interviews" and, with regard to Academics West, it was the "last interview" the following week (Tr. p. 80).  However, the student had not yet been accepted to any of the nonpublic schools (id.).  The parent further testified that the student had not been receiving any educational services since his discharge from MSA in late November 2024, and the district had not responded to her letter, dated November 26, 2024, informing the district of the student's impending discharge from MSA (see Tr. pp. 80-81).  The parent further noted that she had taken a "leave from work" because the student was at home (Tr. p. 80).

When the IHO asked the district's representative if she had any further updated information about the student's situation, the representative indicated that the district's special education services information system (SESIS) had not reflected any receipt of the parent's November 26, 2024 letter (see Tr. pp. 81-82).  The IHO expressed concern with the fact that the student had not been in any educational placement since his discharge from MSA, and given the posture of the matter, the IHO offered to "keep the hearing record open," noting that the "best solution here may be that further evidence [wa]s submitted once the student [wa]s accepted to a placement," because, as the hearing record currently stood, she could not award funding without a placement for the student (Tr. pp. 82-83).

The evidence reflects that, shortly after the January 2025 impartial hearing, the parent received a letter from Academics West, dated January 27, 2025, indicating that the student had been accepted to attend Academics West for the remainder of the 2024-25 school year (see Parent Ex. X).  The evidence further reflects that the parent electronically signed an "Academics West Enrollment Contract 2024-2025" on January 27, 2025 for the student's attendance therein (Parent Ex. Z at pp. 2, 7).

When the impartial hearing resumed for the final day on February 3, 2025, the parent entered an affidavit in lieu of direct testimony into the hearing record as evidence from the director of education (director) at Academics West, as well as entering the student's acceptance letter and the enrollment contract into the hearing record as evidence (see Feb. 3, 2025 Tr. pp. 27-28, 31; Parent Ex. Y ¶ 3).[17]  At that time, the district's representative objected to the admission of these documents on the basis of relevance and timeliness (see Feb. 3, 2025 Tr. p. 30).  The director appeared as a witness for the parent (see Feb. 3, 2025 Tr. pp. 35-41; Parent Ex. Y).

In a decision dated February 28, 2025, the IHO found that the district failed to offer the student a FAPE for the 2022-23, 2023-24 and 2024-25 school years, Academics West was an appropriate unilateral placement for a portion of the 2024-25 school year, and equitable considerations weighed in favor of the parent's request to fund the costs of the student's unilateral placement at Academics West for that portion of the 2024-25 school year (see IHO Decision at pp. 5-10).  The IHO denied the parent's request for compensatory educational services (tutoring, play therapy), as well as her request to be reimbursed for the costs of the privately-obtained play therapy during the 2023-24 and 2024-25 school years (id. at pp. 10-12).  The IHO did, however, award the parent 15 hours of OT services as compensatory educational services, funded by the district, for the district's failure to deliver such services during the 2023-24 school year (March through June 2024) (id. at p. 13).

In reaching the determination that Academics West was appropriate, the IHO found that it would provide the student with "educational instruction that [wa]s designed to meet" the student's needs and would enable him to make progress (IHO Decision at p. 8).  The IHO also found that Academics West was "in the process of developing an individualized plan" for the student, with "instruction tailored" to his needs, and that Academics West would "individualize the curriculum" for the student in order to provide him with "supports" needed to make progress (id.).  In addition, the IHO noted that, while not required, Academics West would provide the student with instruction from "trained teachers" with "specialization necessary to teach" the student (id.).  Finally, the IHO indicated that although a student's progress may be a factor to consider with regard to the appropriateness of a unilateral placement, the student in this matter had only been "recently" enrolled at Academics West, and therefore, his progress had not been "quantified" (id.).  Under these circumstances, the IHO found that the absence of "quantifiable progress" could be "explained," and did not act as a "barrier to the relief sought" (id.).

For these reasons, the IHO determined that the parent sustained her burden to establish that Academics West was an appropriate unilateral placement (see IHO Decision at pp. 8-9).

Next, the IHO examined equitable considerations (see IHO Decision at pp. 9-10).  The IHO found that the parent, in a September 2024 letter, notified the district of her concerns with the student's IEP and of her intention to unilaterally place the student (id. at p. 9).  The IHO also found that the parent sent the district an "addendum," dated November 2024, to update the district about the student's discharge from MSA (id.).  Based on these findings, the IHO concluded that the parent participated throughout the process and equitable considerations weighed in favor of her request for direct funding of the student's tuition costs (id.).  In addition, the IHO noted that the reasonableness of the costs of Academic West's tuition was not an issue that weighed against the parent's request for relief (id. at pp. 9-10).

The IHO then addressed the parent's request for compensatory educational services (see IHO Decision at pp. 10-13).  With regard to the request for 400 hours of "multisensory tutoring," the IHO noted the academic coach's testimony in support of this award, as well as the academic coach's testing of the student that took place "on one occasion in December 2024" (id. at p. 11).  According to the academic coach, the student required "'continued, focused development and remediation in word reading, sentence comprehension, and math computation'" (id.).  However, the IHO afforded the academic coach's testimony "little weight," because it contradicted the psychologist's testimony, who had conducted the student's April 2024 neuropsychological evaluation "on multiple dates" in March and April (id.).  The IHO noted that, at that time, the student's testing results demonstrated that he was performing "at or above grade level in reading, writing, and math when tested in a 1:1 clinical setting" (id. at pp. 11-12).  The IHO afforded "much greater weight" to the neuropsychological evaluation testing results, noting that the testing had been "conducted for several hours over multiple dates" and the academic coach had only met with the student "for a single testing session" (id. at p. 12).  Given the student's testing results on the neuropsychological evaluation, the IHO found that his performance—at or above grade level—did not require compensatory educational services because the student had not demonstrated "any academic deficits" (id.).  The IHO also found that, although the academic coach testified that the "discrepancy in testing" between the neuropsychological evaluation and his own testing in December 2024 showed regression, the IHO concluded that the evidence in the hearing record did not support this assertion (id.).

In addition, the IHO indicated that, when the academic coach was asked about the qualifications of the individual who would potentially deliver any compensatory educational services awarded to the student, the academic coach said that he did not know (see IHO Decision at p. 12).  The IHO noted that without knowing the qualifications of the provider, there was no way to know whether the "tutoring would be reasonably calculated to provide the [s]tudent with educational benefit" (id.).

As a final point, the IHO indicated that, although the hearing record contained "extensive testimony" describing the student's "significant behavioral struggles and executive functioning challenges," the hearing record—and more specifically, the academic coach's testimony—did not "adequately address" how the tutoring agency would "effectively address these challenges during tutoring sessions" (id.).  Therefore, in light of the evidence, the IHO denied the parent's request for 400 hours of multisensory tutoring as compensatory educational services (id.).

Next, the IHO turned to the parent's request for reimbursement of the costs of the privately-obtained play therapy, as well as her request for 90 hours of play therapy as compensatory educational services (see IHO Decision at p. 12).  Here, the IHO found that play therapy went beyond what a district was obligated to provide as part of an "'appropriate' education" (id.).  As a result, the IHO denied the parent's request for reimbursement and compensatory educational services for play therapy (id.).

Turning to the parent's request for OT services as compensatory education for services not delivered from March 2024 through June 2024, the IHO found that the student was entitled to receive 15 hours of OT services (see IHO Decision at p. 13).  The IHO noted that since the parent had not identified a provider, the district was ordered to fund the costs of OT service at a "reasonable market rate" (id.).

Overall, the IHO ordered the district to fund the costs of the student's tuition at Academics West for the portion of the 2024-25 school year during which he would attend, as well as reimbursing the parent for the tuition deposit, and to fund 15 hours of OT services as compensatory educational services (see IHO Decision at p. 13).  The IHO also ordered the district to provide the student with round-trip transportation to Academics West for the 2024-25 school year (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging, in part, that the IHO erred by denying her request to be reimbursed for the costs of the student's privately-obtained play therapy during the 2023-24 and 2024-25 school years and by denying her request for compensatory educational services consisting of 400 hours of tutoring services and 90 hours of play therapy.

In an answer and cross-appeal, the district responds to the parent's allegations.  Initially, the district affirmatively asserts that it is not challenging the IHO's determinations that the district failed to offer the student a FAPE for the 2022-23, 2023-24, and 2024-25 school years.  However, the district argues that the IHO erred by finding that Academics West was an appropriate unilateral placement for the student and by awarding a prospective placement (i.e., "Connors placement").  Next, the district argues to uphold the IHO's decision denying compensatory educational services, consisting of 400 hours of tutoring; but the district concedes that the student is entitled to compensatory educational services consisting of 90 hours of play therapy, the parent is entitled to reimbursement for the costs of the privately-obtained play therapy during the 2023-24 and 2024-25 school years, and the student is entitled to receive the 15 hours of OT services the student did not receive and was awarded by the IHO.  As a final point, the district contends that equitable considerations do not weigh in the parent's favor, as she did not provide the district with a 10-day notice of unilateral placement, and if the SRO considers an award of compensatory tutoring services, then the hourly rate sought, $250.00 per hour, is unreasonable and not supported by evidence.

In an answer to the district's cross-appeal, the parent generally argues to uphold the IHO's finding that Academics West was an appropriate unilateral placement and equitable considerations do not result in a denial or reduction of any award of tuition reimbursement or prospective funding.

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 board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra, 427 F.3d at 192).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). "'[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).

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits.  Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs.  To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential.  They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

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

VI. Discussion

A. Preliminary Matters—Scope of Review

To the extent that the district has not appealed the IHO's findings that the district failed to offer the student a FAPE for the 2022-23, 2023-24, and 2024-25 school years, or the IHO's award of 15 hours of compensatory OT services to the student, those determinations 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 M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

In addition, because the district concedes on appeal that the student is entitled to receive 90 additional hours of compensatory play therapy, as suggested by the student's social worker, as well as reimbursement for the play therapy privately-obtained by the parent, the district's concessions constitute an agreement to the parent's requested relief sought in the appeal (see Req. for Rev. at pp. 8-9; Answer & Cr. App. ¶ 15).  As a result, the issue of compensatory play therapy and reimbursement for the privately-obtained play therapy will not be addressed or reviewed on appeal.  In light of the district's concessions, the remaining issues to be addressed include whether Academics West was an appropriate unilateral placement, whether equitable considerations weigh in the parent's favor, and whether the student was entitled to 400 hours of compensatory educational services.

B. Unilateral Placement

Although the student's needs are not at issue, a review thereof facilitates the discussion of the issues to be resolved—namely, whether the parent sustained her burden to establish the appropriateness of the student's unilateral placement at Academics West for a portion of the 2024-25 school year and whether the student was entitled to compensatory educational services.

1. Student Needs

As previously noted, the hearing record includes the student's April 2024 neuropsychological evaluation report and his WRAT-5 evaluation report from December 2024 as evidence of his needs (see generally Parent Exs. G-H).

In terms of academic functioning, the administration of the WIAT-IV to the student reflected that, overall, he performed in the significantly above average range; more specifically, in mathematics and written expression, the student's scores also fell within the significantly above average range, and in reading, the student's performance fell within the above average range (see Parent Ex. G at p. 29).  Within the April 2024 neuropsychological evaluation report, the psychologist who conducted the evaluation noted that the student's "overall performance" indicated that, "within the small structured environment of the evaluation setting and given the required support and redirection, [the student] c[ould] produce academic work above his age and grade level" (id. at p. 18).  Notably, the student's scores on selected subtests of the WIAT-IV (word reading, reading comprehension, spelling, alphabet writing fluency, math problem solving, numerical operations scores) all fell within the above average, to the well above average, to the significantly above average ranges (id. at p. 29).

            In the area of language skills, the administration of selected subtests of the CELF-5 to the student yielded scores that fell within the average to the well above average ranges, which, according to the evaluating psychologist, "confirm[ed] his well-developed verbal and language skills" (Parent Ex. G at pp. 9, 30-31).  Overall, the psychologist noted that the student's "expressive and receptive language functioning [wa]s equal to that of peers of the same age"; however, the student "often struggle[d] to attend to stimuli and need[ed] redirection and reminders to do so thoroughly, but when prompted, he c[ould] refocus" (id. at p. 10).[18]

Based on the student's performance on the WPPSI-IV and the NEPSY II, the psychologist characterized the student's executive functioning as "variable" (Parent Ex. G at p. 9).  The psychologist noted that the student's executive functioning performance ranged from average to well above average, with strengths in verbal and nonverbal abstract reasoning and "weaknesses in impulse control when completing more cognitively demanding tasks" (id.).  With respect to the student's performance on tasks of sustained attention, the TOVA results were "mixed" (id. at pp. 7-8).  The student's "variability" fell within the above average range on the "visual version," his "response time" fell within the well above average range, and his "omission errors" fell within normal limits (id. at p. 8).  However, the student's "commission errors" fell within the significantly below average range, which "demonstrat[ed] his impaired ability to control and inhibit his responses and his propensity for impulsivity" (id.).

With respect to social/emotional development and behavior, the parent and teacher rating forms administered as part of the BASC-3, along with a clinical interview and a review of school records, revealed that the student "exhibit[ed] concerning behaviors primarily at school" (Parent Ex. G at pp. 11-12, 18).  The psychologist indicated that, based on teacher report, the student engaged in a "pattern of aggressive and disruptive conduct that affect[ed] his social interactions and overall functioning" (id. at p. 18).  The April 2024 neuropsychological evaluation report reflected that, according to school reports, the student "frequently engage[d] in destructive behavior, such as breaking other [students'] belongings," and "display[ed] verbal aggression, threatening to hurt others when he [wa]s frustrated or angry" (id.).  The psychologist further indicated that, based on school reports, "significant concern[s]" existed regarding physical aggression, such as the student "hitting and bullying" other students (id.).  Additionally, the psychologist noted that the student's "disruptive behavior extend[ed] to his play interactions with peers" (id.).  Based on teacher report, the student "often interrupt[ed] and disturb[ed] other [students'] activities, making it difficult for them to engage in constructive play" (id.).  The teacher further reported that the student "tend[ed] to tease and annoy others intentionally, leading to further conflicts and social isolation" (id.).

In addition, the April 2024 neuropsychological evaluation report indicated that,"[e]motionally, [the student] struggle[d] with anger management and self-regulation" (Parent Ex. G at p. 18).  Within the evaluation report, the psychologist noted that the student had been described as "losing his temper quickly and having difficulty controlling his emotions when faced with disappointment or a denial of desires" (id.).  According to the psychologist, the "combination of aggressive behavior, disruptive tendencies, and oppositional conduct [wa]s causing significant challenges for [the student] in his school environment," further noting that those behaviors "likely stemm[ed] from a response to a misaligned learning environment," which affected his "ability to form positive relationships with peers and adults and hinder[ed] his social and academic development" (id.).

Turning to the student's performance on the WRAT-5 subtests administered to him on December 27, 2024, the report indicated that the student's word reading, math computation, sentence comprehension, and reading composites all fell within the very low to low average ranges; his performance in spelling fell within the average range (see Parent Ex. H at pp. 1, 5).  As reflected in the evaluation report, "[t]here were no reported testing limitations or adaptations" (id. at p. 1).[19]  Throughout the evaluation, the student "exhibited issues with controlling his impulses" and following directions (id.).  It was also noted that the student "quickly stopped" working when "test items became frustrating" (id. at p. 2).  On the word reading subtest, the student had difficulty with "words containing slightly more advanced spelling combinations and irregular words" (id.).  On the spelling subtest, the student had "difficulty spelling words with long vowels and/or irregular vowels due to the more advanced patterns of those words" (id.).  On the math computation subtest, while the student "demonstrated some recognition of strategies he could use for addition and subtraction," he did not "know how to apply those strategies to solve the equation" (id.).  The student did not "complete any questions that showed a level of increased complexity" (id.).  Finally, with respect to the sentence completion subtest, the student's "difficulty listening to the directions" resulted in his inability to know "how to complete this activity"; it was also noted that the student had difficulty reading the sentences (id.).

With further regard to the student's behavior, the hearing record includes multiple occurrence reports from September 2023 through March 2024, documenting the student's various behavior incidents involving verbal and physical aggression at school (see generally Parent Ex. O).

2. Specially-Designed Instruction

As noted above, to qualify for reimbursement under the IDEA, parents must demonstrate that the unilateral placement provided instruction specially designed to meet the student's unique needs, supported by services necessary to permit the student to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).  Regulations define specially designed instruction, in part, as "adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3])

In its cross-appeal, the district argues that the IHO erred by finding that Academics West was an appropriate unilateral placement for the student.  The district contends that the hearing record is devoid of evidence concerning specially designed instruction, and that the parent failed to include evidence of specific goals or interventions or an academic curriculum at Academics West.

Turning to the evidence in the hearing record about the student's placement at Academics West, most, if not all, of the evidence was presented through the testimony of the director at Academics West.  When the director appeared as a witness on February 3, 2025, the student had only been attending Academics West for approximately one week or less, and therefore, the director's testimony focused more on the general milieu of Academics West rather than on more specific information about the student's program due to the short duration of his attendance leading into the final day of the impartial hearing (see generally Parent Ex. Y; Feb. 3, 2025 Tr. pp. 36-41).  For example, the director described Academics West as being "accredited both academically and therapeutically," noting that "[e]ach student's schedule include[d] multiple therapeutic services per week" (Parent Ex. Y ¶ 6).  The director testified  that "family support and coaching [wa]s also an integral component" of the Academics West "model" (id.).  According to the director's testimony, the therapist-to-student ratio at Academic West was approximately one to five (or 13 clinicians for a maximum of 75 students), "ensuring all students benefit[ted] from direct and consistent care" (id.).

The director further described Academics West as a "high support school with rigorous academic programming," and "committed to improving the academic and social-emotional functioning of all its students" (Parent Ex. Y ¶ 7).  One "goal" at Academics West was to "foster pro-social citizenship and teach [its] students to use effective, compensatory strategies to become independent and strategic learners, capable of achieving their goals" (id.).  Another "goal" at Academics West was to "help students rehearse critical therapeutic skills throughout the school day to optimize their academic and social-emotional progress" (id.).

According to the director's testimony, "[m]ost students with social-emotional struggles experience[d] a degree of executive dysfunction," and "[w]ithout adequate executive functioning skills, students often struggle[d] to make substantial academic and therapeutic progress" (Parent Ex. Y ¶ 8).  The director explained that Academics West's "approach combine[d] evidence-based clinical practice with research-based educational interventions to help students become strategic learners" (id.).  The director testified that, to achieve this, Academics West developed a "carefully constructed learning plan for each student" by using "assessment data collected by A[cademics] W[est] and previous providers to develop customized interventions to best support the student's learning and emotional needs" (id.).

Given that the student would have been attending first grade during the 2024-25 school year, the director described the "[l]ower school" at Academics West—for students in kindergarten through fifth grade—as having an average class size of three to five students and staffed by teachers with "degrees in general or special education" (Parent Ex. Y ¶ 10).  In addition, all related services providers at Academics West were "state-certified in their respective fields," and the "counseling team [wa]s a mix of licensed psychologists, post-doctoral psychologists, and licensed social workers" (id. ¶ 11).  The director also testified that "[a]ll" lower school students received "individual cognitive behavioral therapy, group social skills therapy, on-call clinical support, group [OT], group speech therapy and adaptive physical education" (id. ¶ 10).  He further explained that, if necessary, lower school students received individual related services (OT, speech-language therapy) and art therapy (group or individual) (id.).

  Next, the director described the admissions process at Academics West, noting that a "typical" student was "highly intelligent and resourceful, but tend[ed] to externalize and/or internalize their behaviors during times of stress" (Parent Ex. Y ¶¶ 13-15, 17).  He also noted that students at Academics West required a "smaller, more supportive classroom and an individualized academic and clinically informed setting to be successful" (id. ¶ 16).

Regarding the student in this matter, the director—having reviewed the "admissions process and documents"—testified that he "clearly m[et] the profile of an A[cademics] W[est] student because of his intelligence and need for a more individualized, clinically informed school" (Parent Ex. Y ¶ 19).[20]  More specifically, the director described the student as  "bright" with an "IQ in the above-average range," but also with a "significant history of struggles with attention, self-regulation, and behavior" (id. ¶ 18).  In addition, the director understood that the student could "be impulsive, ha[d] difficulty or refuse[d] to follow directions, engage[d] in destructive behavior and aggression toward his peers and teachers, verbal aggression and threats, and other oppositional conduct" (id.).  The director also understood that the student had been diagnosed as having an ADHD and ODD, and he had been asked to leave his previous nonpublic school due to his behavior (id.).

With respect to the student's program at Academics West, the director noted that he would be "placed in a classroom of [four] students and two staff," a lead teacher and an assistant teacher (Parent Ex. Y ¶ 20).  His "learning plan" would include "specific academic and social-emotional goals that [we]re created based on [the student's] assessments and needs" and his progress would be "tracked by his instructors and therapeutic team through formal and informal assessments throughout the remainder of the school year" (id. ¶ 21).  In addition, it was noted that the student's "core classes" would include ELA, mathematics, science, and social studies; he would also participate in physical education, music, group therapy, individual therapy, and group speech (id. ¶ 22).  The director further testified  that the student's day would be "highly structured," it would "start the same way each day," and his teacher would "review the schedule with him and discuss how [he wa]s feeling and any emotions he [wa]s experiencing" (id.).  The director also testified that classrooms had visual schedules posted in order to "set expectations and ease with transitions," and the student's teachers would "implement clear and consistent rules" (id.).

With  respect to the student's academic curriculum at Academics West, the director testified  that it would be "based on New York State Common Core standards for first grade students, but differentiated to meet [his] individual needs" (Parent Ex. Y ¶ 23).  The director further testified that instruction would be delivered through "multisensory means to engage [the student's] attention and allow him to access information through multiple means" (id.).  The director explained that the "low student to teacher ratio in [the student's] class w[ould] allow his instructors to work with him individually in areas in which he struggle[d]" (id.). In addition, the student's "[c]lassroom material w[ould] be modified according to his needs, including simplifying the presentation of information and limiting the amount of information on each page" (id.).  Similarly, according to the director's testimony, "assignments w[ould] be broken down into discrete steps" (id.).  The director testified that the "small size of [the student's] class w[ould] allow his teachers to challenge him in his areas of academic strength" (id.).

Next, the director described "[c]ounseling and therapeutic supports" as the "centerpiece" of the student's program at Academics West (Parent Ex. Y ¶ 25).  He clarified that, although the specific amount of services would be later determined by the student's clinician, he would, at a minimum, receive "at least one session of individual counseling, one session of group counseling, and art therapy" (id.).  The director further testified that Academic West's "licensed mental health counselors primarily utilize[d] Cognitive Behavioral Therapy because it [wa]s the most evidence-based treatment approach to treat young people with emotional struggles" (id.).  The parent would also participate in "monthly psychoeducational instruction delivered by [Academic West's] counselors, and [the student's] counseling team w[ould] be in frequent contact with [his] parent" (id.).  Finally, Academics West implements a mentor program wherein an upper school student would be paired with the student to "meet with him to share lunch, work on assignments, and complete projects together" (id.).  The mentor program provided "opportunities to practice social skills, build trust, and create healthy relationships" (id.).

With regard to the student's interfering behaviors, the director testified that a "variety of means" would be used to address them (Parent Ex. Y ¶ 26).  More specifically, the student would receive "individual, group," and "on-call therapeutic support" to address his issues with "self-regulation, frustration, and to build his coping skills" (id.).  In addition, the directed noted that, "[o]nce the student start[ed] at A[cademics] W[est], a behavior plan w[ould] be created for him," based on a functional behavior assessment conducted at Academics West during his "first few weeks in the school to understand the cause and triggers of [his] behaviors" (id.).  The director further testified that the behavior plan would include "clear behavior goals and include positive behavior supports" (id.).  Additionally, the student's instructors would "gather data on [his] behaviors daily and modify [his] behavior plan based on that data" (id.).[21]

In addition to the student's behavior plan, Academics West would provide the student with supports "built into his classroom instruction and routines" to address his "self-regulation, attention, and executive functioning" issues (Parent Ex. Y ¶ 28).  For example, the director testified that "movement breaks, prompts, breaking down of instructions and directions, positive praise, and modeling w[ould] be utilized" (id.).  Academics West also employed a school-wide behavior program to "reward[] prosocial behavior" (id.).  The director also testified that the "small size of [the student's] class w[ould] allow his instructors to provide [him] with additional time on assignments and exams and allow him to show mastery of a topic through a variety of means" (id.).  Additionally, the student's "related service providers, including his counselor and occupational therapist, w[ould] push-in to his classroom throughout the day to provide him with real-time feedback and instruction concerning his attention and self-regulation skills and to reinforce skills learned during individual therapy sessions" (id.).

Overall, the director testified that the Academics West program was "reasonably calculated to lead to progress" and that the student would "benefit from the extensive academic and therapeutic supports" provided at Academics West (Parent Ex. Y ¶ 30).

When asked during cross-examination what specific interventions had been developed to address the student's behavior issues, the director acknowledged that, given the student's recent start at Academics West, they were getting to know him and  would be "fine-tuning [his program] over the next couple of weeks" (Feb. 3, 2025 Tr. p. 36).  However, the director clarified that the student would receive "individual therapy every week from a clinician," and he would participate in a "group social skills therapy with his classmates" (Feb. 3, 2025 Tr. pp. 36-37).  In addition, the director noted that Academics West had "on-call clinical services," which staffed hallways with a "clinical team" to "respond and intervene in any moments of crisis" (Feb. 3, 2025 Tr. p. 37).  Moreover, the director indicated that the student would participate in the school-wide behavior program that would allow him to earn prizes (id.).

When asked about specific goals developed for the student, the director testified that, currently, Academics West would be "working on emotional regulation," but acknowledged that, because he was such a new student, they had not developed any specific goals for the student (Feb. 3, 2025 Tr. p. 37).  According to the director's testimony, specific goals for the student's behavior would be developed by "working in concert with [the parent] and other members of the team as [Academics West] start[ed] to collect data and learn more about [the student]" (id.).  The director also testified that, overall, Academics West had not yet created any goals that were "completely specific to [the student]" (Feb. 3, 2025 Tr. pp. 37-38).  He further testified that it would be "impossible" to create specific or "customized interventions specifically directed at [the student]" until Academics West learned more about the student and how he "function[ed] in a school setting" (Feb. 3, 2025 Tr. p. 38).

Further, when asked if Academics West had "created a specific academic curriculum" for the student, the director explained that the student had just taken "standardized tests" given to all incoming students at Academics West (Feb. 3, 2025 Tr. p. 38).  The director further explained that he and the student's "lead teacher" would review the results of those tests and "start creating a more tailored academic approach for him based off those results and also observations from the teacher in the classroom over the next week or so" (id.).  Finally, the director confirmed that Academics West had not yet created any kind of academic program specifically tailored to the student's needs "because [it was] too early in his start at [Academics West]" (id.).

Next, when referred to a provision in the enrollment contract indicating that students may be terminated due to behaviors and then asked to clarify the provision, the director testified that a student's removal from Academics West was "completely dependent on the student, their age, their presenting factors, their outside care," further noting it was "not a one-size-fits-all scenario necessarily" (Feb. 3, 2025 Tr. pp. 39-40).  Turning to the student in this matter, the director could not recall the student's specific diagnoses (see Feb. 3, 2025 Tr. p. 40).  However, the director testified that, in his opinion, Academics West could meet the student's needs, regardless of whether he could recall the student's diagnoses, and furthermore that he knew the student was "intelligent, academically capable," and his "primary struggles of being successful in school ha[d] been around his ability to emotionally regulate and engage in positive behaviors" (Feb. 3, 2025 Tr. pp. 40-41).  According to the director, this was the "kind of student" Academics West served, because the school offered "much more intensive therapeutic interventions in the classroom, outside of the classroom and [their] teachers [we]re trained on how to meet the needs of those students who, again, ha[d] regular range IQs, [we]re very academically capable but need[ed] more behavioral interventions to be able to be successful" (Feb. 3, 2025 Tr. p. 41).

As discussed above, much of the evidence in the hearing record used as support for the appropriateness of the unilateral placement consists of generalized descriptions of the overall program offered to all students at Academics West.  Generally, in support of their burden to demonstrate the appropriateness of a unilateral placement for tuition reimbursement purposes, parents may, at times, present evidence that consists of descriptions of the school's programmatic elements without more specific evidence related to the student's experience with the individualized program during the school year at issue.  Indeed, some courts have noted that evidence of the general educational milieu of a unilateral placement can be relevant for purposes of awarding tuition reimbursement, and in some cases may constitute special education, while recognizing that such considerations nonetheless do not abrogate the requirement that the appropriateness of a unilateral placement continues to rest on a finding of specialized instruction which addresses a student's unique needs (see W.A. v. Hendrick Hudson Cent. School Dist., 927 F.3d 126, 148-49 [2d Cir. 2019] [indicating that "a resource that benefits an entire student population can constitute special education in certain circumstances" but cautioning that features such as small class size might be the sort of feature that might be preferred by parents of any child, disabled or not], cert denied, 140 S. Ct. 934 [2020]; T.K. v. New York City Dep't of Educ., 810 F.3d 869, 878 [2d Cir. 2017]); see also Bd. of Educ. of Wappingers Cent. School Dist. v D.M., 831 Fed. App'x 29, 31 [2d Cir. 2020] [acknowledging an SRO's statement that the standard for an appropriate unilateral placement had become less demanding but reiterating that the appropriate analysis is the "totality of the circumstances" standard]).  However, relying primarily on more general information concerning the school and the resources and programs it offers to all students, even if the student in question has an educational profile that is similar to other attendees of the school and needs for which the program offers services and supports—such as individualized attention to the unique learning profile of each student and collaboration between teachers to address the students' individual needs—runs the risk of conflating specially designed instruction which addresses the unique needs of a student who has been classified and found eligible for special education and related services with globally beneficial elements of the unilateral placement's educational milieu (see Gagliardo, 489 F.3d at 115 [noting that reimbursement for a unilateral placement should be denied if "the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not"]).

Under the circumstances presented in this matter—namely, that the student had only begun attending Academics West for approximately one week prior to the final day of the impartial hearing—it is understandable that evidence of the general milieu of the unilateral placement predominated over information related to specific educational programming developed for the student by the school.  However, the director's testimony demonstrated that Academics West had a detailed understanding of the student's needs and described the processes the school would use to tailor his educational program to address those needs as his teachers and providers had an opportunity to work with him and observe how he functioned in the classroom. The director also described the counseling and therapeutic services that would be offered to the student initially and explained how the different supports available at Academics West could be utilized to address his social-emotional, behavioral and executive functioning needs.  Therefore, while the parent was not able to present more specific information about the student's program at Academics West, the hearing record as a whole, demonstrates that the school offered specially designed instruction to address the student's needs.  Thus, the district's arguments are not persuasive and, as a result, there is no reason to disturb the IHO's finding that Academics West was an appropriate unilateral placement for the student for that portion of the 2024-25 school year from January 2024 through June 2025.[22]

C. Equitable Considerations—10-Day Notice

The district argues that the parent failed to provide the district with a 10-day notice of unilateral placement prior to the student attending Academics West.  In response, the parent argues that she provided the district with a 10-day notice of unilateral placement in September 2024 and then again in November 2024.  The parent further argues that there is no legal authority that requires a parent to identify a specific nonpublic school within the 10-day notice of unilateral placement, and her 10-day notice properly informed the district of her intentions.

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.  Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).  With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]).  This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]).  Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

Initially, as the parent asserts, the hearing record includes a letter to the district, dated September 16, 2024 (see Parent Ex. C at p. 1).  In this letter, the parent notified the district of her intention to unilaterally place the student at MSA for the 2024-25 school year, as well as her intention to seek public funding for the costs of the student's tuition at MSA for the 2024-25 school year (id. at p. 5).  Moreover, the parent identified her concerns with the student's June 2024 IEP in the same letter (id. at pp. 4-5).  Next, the hearing record includes a letter to the district, dated November 26, 2024, notifying the district of the student's imminent discharge from MSA and the need for an immediate school placement for the student (see Parent Ex. D at p. 1).  The parent noted that if the district was unable to provide an immediate school placement, she intended to place the student in an appropriate nonpublic school and seek funding, as well as transportation, for the student's attendance therein (id. at pp. 1-2).  In reviewing the evidence in the hearing record, it does not appear that the district responded to either the September 2024 letter or the November 2024 letter the parent sent, or otherwise provided the student with a public school placement or convened a CSE meeting to address the parent's concerns (see generally Tr. pp. 1-96; Feb. 3, 2025 Tr. pp. 27-56; Parent Exs. A-Z; IHO Exs. I-II).

In addition, upon review of the parent's evidence, the September 2024 and the November 2024 letters both provided the district with notice of the parent's intention to remove the student from the public school and her intention to seek public funding for a unilateral placement, consistent with legal authority.  As a result, the district's argument must be dismissed, and the IHO's finding that equitable considerations weighed in favor of the parent's requested relief will not be disturbed.

D. Compensatory Education—Tutoring Services

The parent contends that the IHO erred by denying her request for 400 hours of compensatory educational services for the district's failure to offer the student a FAPE for two and one-half school years.  The parent asserts that, in denying compensatory educational services, the IHO ignored the testimony by the academic coach, which indicated that the student had "regressed or made minimal progress" since the student's April 2024 neuropsychological evaluation.  In addition, the parent argues that, contrary to the IHO's findings, she was not required to present evidence about the provider to be selected to deliver the compensatory educational services.

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., 758 F.3d at 451; 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"]).

Turning first to the parent's contention that she was not required to present evidence concerning the provider selected to deliver any award of compensatory educational services, it has been noted that, while some courts have fashioned compensatory education to include reimbursement or direct payment for educational expenses incurred in the past, the cases are in jurisdictions that place the burden of proof on all issues at the hearing on the party seeking relief, namely the parent, making the distinction between the different types of relief perhaps less consequential (Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App'x 874, 878-79 [7th Cir. 2015]; Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 [D. Minn. 2022]).  In contrast, under State law in this jurisdiction, the burden of proof has been placed 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 Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85).

In arguing for an award of compensatory educational services to be delivered by an "independent provider" of the parent's choosing, without identifying such provider, the parent is effectively engaged in an end run around bearing the burden of proof for privately-obtained services.  SROs have consistently indicated that it may not be appropriate in the administrative due process forum to continue to place the burden of proof regarding compensatory education relief on the district, and I note that no Court or other authoritative body in this jurisdiction has addressed the topic to date (see, e.g. Application of a Student with a Disability, Appeal No. 23-096; Application of a Student with a Disability, Appeal No. 23-050).   Where the parent seeks relief in the form of compensatory education to be provided by parentally-selected private special education companies or independent providers, I find it is appropriate to place the burden of production and persuasion on the parent with regard to the adequacy of the proposed relief.

Next and contrary to the parent's contentions, the IHO—having considered the testimonial evidence elicited about the student's academic functioning from the parent's witnesses—did not ignore the academic coach's testimony, but, instead, gave "little weight" to that evidence because it contradicted the testimony by the psychologist who conducted the student's April 2024 neuropsychological evaluation (IHO Decision at p. 11).  In addition, it appears that the IHO gave more weight to the neuropsychological testing results given the length and thoroughness of the testing sessions, as well as in consideration of the fact that the evidence in the hearing record did not support the academic coach's testimony that the "discrepancy in testing" results—to wit, between the April 2024 neuropsychological and the December 2024 WRAT-5—meant that the student had regressed (id. at pp. 11-12).

While State regulations do not define regression, "substantial regression" is defined in State regulation as a "student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1[aaa]).  State guidance indicates that "an inordinate period of review" is considered to be a "period of eight weeks or more upon return to school" (see "Extended School Year Programs and Services Questions and Answers," at p. 3, Office of Special Educ. [Updated Sept. 2024], available at https://www.nysed.gov/special-education/extended-school-year-programs-and-services-questions-and-answers).

Here, the academic coach testified that the student was exhibiting regression based on his comparison of the student's testing results from the April 2024 neuropsychological evaluation—where he demonstrated above average skills in reading and mathematics—and the WRAT-5 testing in December 2024, which indicated that the student was performing below grade level at that time (see Tr. pp. 43-44).  The academic coach initially testified that the student's "regression" began "after April when he had the neuropsych[ological] evaluation" (Tr. pp. 44-45).  Subsequently, the academic coach acknowledged that the student's "regression" could have started in fall 2024, when he was removed from school at MSA (Tr. pp. 46-47).

However, other than the academic coach's opinion that the student's different testing results equated to regression, his opinion, without more, is not sufficient to demonstrate that the student lost skills or knowledge such that he requires compensatory educational services.  Therefore, there is no basis to disturb the IHO's decision denying the parent's requested relief.

VII. Conclusion

Having found that the evidence in the hearing record supports the IHO's findings that Academics West was an appropriate unilateral placement and that the student was not entitled to compensatory educational services, other than those agreed to by the district on appeal, the necessary inquiry is at an end.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the district shall fund 90 hours of play therapy to be delivered by the student's social worker at a rate not to exceed $175.00 per 45-minute session, and if the student's social worker is not available, then the play therapy shall be delivered by a private provider selected by the parent at a rate not to exceed $175.00 per 45-minute session; and,

IT IS FURTHER ORDERED that the district shall reimburse the parent for the costs of the privately-obtained play therapy delivered to the student by the student's social worker during the 2023-24 and 2024-25 school years upon presentation of proof of services delivered and invoices for such services.