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 district) appeals from a decision of an impartial hearing officer (IHO) which found that it denied respondent's (the parent's) son a free appropriate public education (FAPE) for the 2024-25 school year and ordered it to reconvene its Committee on Special Education (CSE) to recommend a residential school placement.  The appeal must be sustained in part.

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 CSE that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

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

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

III. Facts and Procedural History

The parent reported that the student received a diagnosis of sensory integration deficit disorder and began receiving the special education services of occupational therapy (OT) and counseling when he was in second grade (Dist. Ex. 7 at p. 1).  OT services were discontinued when the student was in middle school, and he continued to receive counseling services (id.).  The student also received diagnoses of oppositional defiant disorder (ODD) and attention deficit hyperactivity disorder (ADHD) when he was 11 years old (id. at pp. 1, 2).

According to the parent, during the 2022-23 school year (ninth grade), the student began cutting classes and his grades dropped (Dist. Ex. 7 at p. 1).  Beginning in spring 2023, he was taken to the emergency room on multiple occasions and admitted to a hospital on one occasion due to concerns of self-harm, "aggression at home and overall behavior" (id. at pp. 1, 2).  The student began the 2023-24 school year (10th grade) at one district high school, but, due to poor attendance and academic performance, he began attending another school in December 2023 (id. at p. 1).

The parent reported that she wanted to "find out if [the student] need[ed] special education" and, in January 2024, the district conducted an evaluation of the student (see Dist. Exs. 6-9).  A CSE convened on March 8, 2024, and found the student eligible for special education as a student with an other health impairment (see Dist. Ex. 1).[1]  The CSE recommended that the student receive one 30-minute session of individual counseling services per week and testing accommodations (id. at pp. 12, 14).

The parent obtained a neuropsychological evaluation of the student in June 2024 (see Parent Ex. B).  In addition to the student's ADHD and ODD diagnoses, the evaluator determined that the student met the criteria for a diagnosis of conduct disorder, due to his "history of deviant behavior that include[d] stealing, aggression towards parents, lying, running away from home, and engaging in risky, illegal activities" (id. at p. 13).  The evaluation report provided several recommendations for home and school including the neuropsychologist's view that the student was "a strong candidate for a therapeutic residential placement"; however, due to the difficulty "securing placement in such a program," another option presented by the neuropsychologist was for the student was to attend "a therapeutic day program" (id. at pp. 13-14).

In a letter dated September 11, 2024, the parent, through her attorney, informed the district that she had obtained a  neuropsychological evaluation and had concerns regarding the student (see Parent Ex. C).[2]  The parent requested that the CSE reconvene to review the evaluation and discuss the possibility of referring the student to the district's Central Based Support Team (CBST) for a State-approved residential placement (id. at p. 2).

A. Due Process Complaint Notice

In a due process complaint notice dated October 7, 2024, the parent alleged that the district denied the student a FAPE for the 2024-25 school year (see Parent Ex. A).  The parent argued that the March 2024 IEP was "deeply flawed" and that the CSE made no attempt to address how the student's ODD diagnosis prevented him from accessing the curriculum (id. at p. 2).  The parent contended that the CSE failed to evaluate the student in all areas of disability and the evaluation used by the CSE was insufficient as it did not address all the student's diagnoses (id.).  The parent alleged that the district's failure to address the student's diagnoses resulted in an inadequate recommendation for counseling services (id. at p. 3).  Moreover, the parent claimed that the district did not allow the parent the opportunity to report about the student outside of the student's presence, which made describing the significance of the student's dangerous and high-risk behaviors difficult (id.).  The parent asserted that, due to the district's inability to fully grasp the severity of the student's needs, she obtained a neuropsychological evaluation (id.).  The parent indicated that, following that evaluation, she wrote to the CSE to request a reconvene to consider the new evaluation; however, the parent alleged the CSE did not respond (id.).

The parent requested that the district be required to issue a "Nickerson" letter to authorize payment for the student's tuition at any appropriate State-approved nonpublic school for the 2024-25 school year (Parent Ex. A at p. 4).  Further, the parent requested that the CSE reconvene immediately and defer the student for placement in an appropriate State-approved nonpublic residential school (id.).[3]

B. Events Post-Dating the Due Process Complaint Notice

A version of the June 2024 neuropsychological evaluation with a fax heading of October 23, 2024 indicated that the student had applied to and was rejected from "several therapeutic day programs because he require[d] a higher level of support," and therefore, the evaluator concluded that the student "required placement in a therapeutic residential program" (Dist. Ex. 11 at p. 13).

A CSE reconvened on November 24, 2024 with the parent and neuropsychologist in attendance (see Dist. Exs. 4; 5).  The CSE increased the student's individual counseling services to two 30-minutes sessions per week (Dist. Ex. 4 at p. 14).

C. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on November 26, 2024, and concluded on January 6, 2025, after two days of proceedings (see Tr. pp. 1-85).  In a decision dated February 19, 2025, the IHO found that the district failed to offer the student a FAPE for the 2024-25 school year (IHO Decision at pp. 3, 7).  The IHO determined based on the testimony and documentary evidence that the district was not able to offer a cogent and responsive explanation for the CSEs' decisions (id. at pp. 5-6).  The IHO held that two periods per week of counseling services did not sufficiently address the student's needs and the CSE did not incorporate the main recommendations of the June 2024 neuropsychological report (id. at p. 6).

Turning to the parent's request for relief, the IHO found that the facts "present[ed] one of the rare instances where a prospective change in placement [wa]s warranted" (IHO Decision at p. 6).  The IHO found that the district had failed to recommend anything besides counseling "despite evidence of the [s]tudent's continued truancy and escalating behavioral challenges in the home and in the community" (id.).  The IHO held that the increase in counseling services from the March 2024 IEP to the November 2024 IEP alone did not appropriately address the student's needs (id.).  Having "considered the totality of the evidence in the hearing record," the IHO found the parent was entitled to the requested relief (id.).  The IHO ordered the district to reconvene a CSE for the student and defer the student's placement to the CBST to locate "an appropriate residential [nonpublic school] for the remainder of the 2024-25 school year" (id. at p. 7).

IV. Appeal for State-Level Review

The district appeals, arguing that the IHO erred in finding that it failed to offer the student a FAPE.  The crux of the district's argument is that the student was not demonstrating the behaviors raised by the parent in school, and that the CSE was not required to adopt the finding of the private neuropsychologist.  The district asserts that both CSEs had sufficient evaluations to make appropriate recommendations, and its witnesses provided clear and concise reasoning for the CSEs' decisions.

The district also contends that the IHO erred in the relief awarded, namely the directive that the district should identify a residential placement for the student.  The district asserts that the neuropsychological evaluation did not recommend a residential placement as the only option.  In addition, the district argues that, in ordering a residential placement, the IHO appeared persuaded by evidence about the student's behaviors outside of school.  However, according to the district, the student's "out-of-school behavioral issues" did not "negatively affect the Student's education."  The district asserts that a diagnosis of a conduct disorder was "not an automatic basis for classification as a child with a disability" and the student's truancy alone was not a basis for special education supports.  The district asserts that the student's attendance issues were not affecting his educational performance.

The district also argues that the IHO's award of relief was unenforceable as the district does not have authority over nonpublic schools and cannot force a nonpublic school to accept the student.  Further, the district claims that relief in the form of requiring particular amendments to the student's IEP inappropriately circumvents the CSE's role.

In an answer, the parent responds to the district's allegations and argues that the IHO's decision should be affirmed in its entirety.[4]  The parent argues that the June 2024 neuropsychological evaluation was the only "comprehensive evaluation" before the CSE and the CSE inappropriately disregarded its recommendations.  The parent also argues that the district's witnesses did not provide a cogent reason for the CSE's recommendations.  According to the parent, the district attempts to abdicate its obligation to offer the student a FAPE by arguing that absenteeism resulting from a student's disability is not its responsibility.  The parent contends that the hearing record establishes that the student's absenteeism, which was caused by his disability, was affecting his ability to perform in school.  Regarding the district's objection to the IHO's order that the CSE must defer the student for a residential placement, the parent asserts that the district is arguing for an unwarranted restraint on the IHO's equitable powers.

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.  After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).  "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404).  The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).  Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[5]

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. FAPE – 2024-25 School Year

Initially, there does not appear to be any dispute that both the March and November 2024 IEPs are at issue in this matter.  The parent's due process complaint notice predated the November 2024 IEP (compare Parent Ex. A, with Dist. Ex. 4).  However, according to discussions during the prehearing conference, it appears that the November 2024 IEP was developed as part of the resolution process to attempt to address some of the parent's concerns set forth in the due process complaint notice (Tr. pp. 3, 5, 9; see Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 167 [2d Cir. 2021] [noting that "the IDEA permits a school district to propose changes to an IEP during the resolution period"] [emphasis in the original]).[6]  Neither the March nor November 2024 IEP included a recommendation for programming that the parent believed the student needed, namely a residential placement, and the issue forming the basis for the complaint remained unresolved after the November 2024 CSE meeting.  During the impartial hearing, the parent alleged that both IEPs were inappropriate (see Tr. pp. 32-37).  Moreover, the district defended both IEPs, including by presenting direct testimony regarding both CSEs' recommendations (see Dist. Exs. 13; 14).[7]  Accordingly, both IEPs are discussed for the purposes of assessing whether the district offered the student a FAPE for the 2024-25 school year.

1. Sufficiency of Evaluative Information

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

According to a March 2024 prior written notice, the March 2024 CSE considered the February 2024 psychoeducational evaluation of the student and a February 2024 social history update (Dist. Ex. 2; see Dist. Exs. 6-7).  In addition, according to the March 2024 IEP, the CSE considered a January 2024 Level 1 Vocational Assessment of the student, as well as the student's third quarter grades for the 2023-24 school year (Dist. Ex. 1 at p. 2).  The November 2024 CSE reviewed the June 2024 neuropsychological evaluation and, according to the IEP, also reviewed the student's first marking period grades for the 2024-25 school year (see Dist. Exs. 4 at p. 3; 5 at p. 1; see also Parent Ex. B).

Regarding the student's cognitive abilities, the February 2024 psychoeducational evaluation report related that administration of the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V) to the student yielded a full-scale IQ of 107, in the average range, with composite index scores in the average and high average ranges on all indices except for processing speed, on which he scored in the low average range (Dist. Ex. 6 at p. 3).  The student's General Ability Index (GAI), an estimate of general intelligence less reliant on working memory and processing speed than full scale IQ, fell in the high average range (id. at p. 8).

The June 2024 neuropsychological evaluation report related similar results, reporting that on the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV), the student's full scale IQ was 106, which was in the average range (Parent Ex. B at p. 6).[9]  The student's verbal comprehension, working memory, and processing speed indices were in the average range, and his perceptual reasoning index score was in the high average range (id.).

Regarding the student's academic abilities, the February 2024 psychoeducational evaluation report related that on the Wechsler Individual Achievement Test, Fourth Edition (WIAT-IV), the student's overall achievement score was in the high average range, with high average cluster scores for reading and mathematics, and an average cluster score in written expression (Dist. Ex. 6 at pp. 8-10).  On the WIAT-IV administration in June 2024, the student achieved a reading composite score in the extremely high range, scores in the high average range on measures of sentence composition and mathematics, and a composite score in the average range for math fluency (Parent Ex. B at p. 8).  The June 2024 neuropsychological evaluation identified that the student had strong phonetic decoding, verbal comprehension, sentence building, and mathematical computation skills (id. at p. 12).  His performance in the average range when solving subtraction and multiplication problems with low average performance on addition problems was "expected given [his] working memory and processing speed scores on the WAIS, as the fluency tasks require[d] both processing speed and recall of basic math facts" (id.).

In terms of the student's social/emotional skills and behavior, the February 2024 psychoeducational evaluation report related that on the Behavior Assessment Scale for Children-Third Edition (BASC-3) Self-Report of Personality, the student's scores in the areas of locus of control, social stress, self-esteem, and ego strength were in the at-risk range, and in the clinically significant range in the area of relations with parents (Dist. Ex. 6 at pp. 11-12, 14-15).  According to the February 2024 psychoeducational evaluation report, the student's answers on the BASC-3 indicated "some social-emotional difficulties that should be further assessed and addressed by a counselor" (id. at p. 14).  The February 2024 social history update reported that, according to the parent, the student was "defiant at home and did not want to follow rules, but . . . did not have the same issues at school" (Dist. Ex. 7 at p. 1).  According to the February 2024 social history, since the student's hospitalization in 2023, the parent had taken the student to the emergency room three or four times due to concern about his aggression at home and his overall behavior (id. at p. 2).[10]  In addition, during summer 2023, the parent took a "[two]-month medical leave of absence to stay home and supervise [the student] because she was concerned about his safety and well-being" (id.).  The February 2024 social history update additionally reported that the student engaged in risk-taking behaviors such as building surfing and subway surfing (id.).  He received three sessions per week of intensive home-based individual and family counseling from an outside agency (id.).  According to the June 2024 neuropsychological evaluation report, the student's disruptive and risk-taking behavior had increased since starting high school (Parent Ex. B at p. 2).  The student's risk-taking behaviors included "severe truancy, lack of respect for authority (including parents), roof-topping, having a police record for stealing, and running away from home for up to five days at a time without telling his family his whereabouts" (id.).

The March 2024 IEP reported that the student was articulate and self-reflective and could connect well with others when motivated to do so (Dist. Ex. 1 at p. 6).  The March 2024 IEP reflected the parents' concern regarding the student's aggressive behaviors at home and often making "bad choices with no remorse or accountability" (id.).  According to the March 2024 IEP, the student did not exhibit symptoms of ODD at school; he followed rules and was respectful to teachers and counselors (id.).  The March 2024 IEP further reflected that the student had "chronic attendance issues although recently his attendance ha[d] improved" (id.).

The March 2024 IEP also reflected that the student had 2023-24 school year third quarter grades of 45 in English, 100 in Spanish, 98 in physical education, 95 in Algebra II, and 69 in ceramics (Dist. Ex. 1 at p. 2).  The student did not receive grades for Global History or Environmental Sustainability because of "late transfer" from his previous high school; however, a review of the student's permanent record showed that, prior to his transfer, the student had grades of 76 and 85 in Global History and a grade of 45 in Environmental Sustainability (Parent Ex. E; Dist. Ex. 1 at p. 2).  According to the March 2024 IEP, the student had received passing grades on the Common Core Algebra 1 Regents and Living Environment Regents examinations and a failing grade of 58 on the Common Core Geometry Regents examination (Dist. Ex. 1 at p. 2).  He had earned 20.58 of the 44 credits required for graduation and was "on track to graduate with his cohort in June 2026" (id. at p. 3).[11]  Review of the report card reflects that the student missed 22 days of school during the third marking period of the 2023-24 school year (Parent Ex. G).  The report card noted that the student was "excessively absent" in ceramics, and a required project was incomplete or missing (id.).  In English he was "excessively absent," absent on test days, received a 45 on his final exam, and had a final grade of 45 (id.).  The student received a final grade of 100 in Spanish but missed his final exam (id.).  Further, according to the student's attendance report, during the 2023-24 school year, the student was absent 49 out of 107 school days, which was a 54 percent attendance rate (Parent Ex. F at p. 1).

The March 2024 IEP included teacher reports that spoke to the student's attendance and performance in the classroom (Dist. Ex. 1 at pp. 4-5).  In Spanish, the student participated in class, had a "great" rapport with peers, completed most assignments, and worked well collaboratively, but missed the term 1 final exam for Spanish "due to illness" (id. at p. 4).  In ceramics, the student had not been present since the first week of class during the spring semester and had not participated or made up any work, and that to improve his grade he "need[ed] to attend class again and show effort" (id.).  In Algebra II, the student "attend[ed] class daily and on time," and was "prepared for class every day that he attend[ed]" (id.).  In math, the student had submitted all his homework assignments and was "doing extremely well" (id.).  According to the March 2024 IEP, in science, the student's attendance "ha[d] improved significantly, and he attend[ed] on time," and when in class, he was always prepared and participated, but "still missing some assignments from absences due to illness" (id. at p. 5).  In English, although the student "ha[d] the ability to perform very well," the student was "often absent, and this ha[d] led to multiple missing assignments," and when given the opportunity to make up the work the student did not do so (id.).  The student's English teacher "would like to see [the student] attend class consistently, remain engaged (participating often/no phone use) and complete his assignments each day" (id.).  In Global History, the student's attendance was "better," he worked well with other students, and submitted most assignments, but had not been submitting assignments lately (id.).

The November 2024 CSE reported that, for the first marking period of the 2024-25 school year, the student had passing grades of 95 in English, 99 in Journalism 1, 93 in Spanish 5, 99 in physical education, 65 in Earth and Space Science, 95 in US History, and a failing grade of 45 in Pre-Calculus (Dist. Ex. 4 at p. 3).  According to the November 2024 IEP, the student had earned passing grades on the Algebra I Regents examination, Global History Regents examination, and Living Environment Regents examination (id. at p. 4).  The November 2024 IEP noted that on the Common Core Geometry Regents examination, the minimum grade criteria were waived, and the student's score was recorded as passing (id.).  At that time, the student had earned "27.16" credits of the 44 credits required for graduation and remained "on track" to graduate in June 2026 (id.).[12]  According to the IEP, "recently [the student's] attendance ha[d] improved and he seem[ed] to be more motivated to be on track," (id. at p. 8).  According to an attendance report, in fall 2024, leading up to the November 24, 2024 CSE meeting, the student was absent 2 of 18 days in September, 10 of 20 days in October, and 8 of the 13 days in November thus far (Parent Ex. F).

The November 2024 IEP included reports of the student's progress in each of his classes which confirmed that, although the student was academically capable, his attendance continued to be an issue and negatively impacted his grades (see Dist. Ex. 4 at pp. 5-6).  According to the November 2024 IEP, the student's attendance and punctuality were good in Spanish class, and he was always highly engaged and participated in class (id. at p. 5).  He maintained control of his emotions and behavior and was respectful to peers and adults (id.).  In US History, the student was doing "very well" but had missed six days over the prior two weeks (id.).  In Pre-Calculus, the student's first period class, he had attended classes at the beginning of the school year but had not attended since (id. at p. 6).  The November 2024 IEP noted that when he attended Pre-Calculus, the student was "prepared and performed on grade level" (id.).  In Earth and Space Science, the student's attendance was "inconsistent," and he would be "doing fine," completing the classwork, homework, and labs, but would then "drop out" and start not attending class again (id.).  The November 2024 IEP noted that the Earth and Space Science teacher had also taught the student for Environmental Sustainability during the 2023-24 school year, and the student had "failed due to his attendance issues" (id.).  In Journalism, the student was "prepared for class, and easily engaged in all activities" during the first marking period but his attendance had "decreased since the beginning of the second marking period" (id.).

A review of the student's social development needs in the November 2024 IEP revealed that the student "ha[d] been attending weekly counseling sessions and he present[ed] as friendly, respectful, and engaged," noting that "[o]verall [the student] seem[ed] to have adjusted to being a student at [the district school]" (Dist. Ex. 4 at p. 7).  Additionally, the IEP reflected reports that the student had "expressed interest in exploring club offerings and talk[ed] about engaging more with peers" (id. at pp. 7-8).  According to the IEP, the school-based counseling sessions focused on "identifying and expressing his feelings related to focus, motivation, attendance, and short and long term goals" (id. at p. 8).  The IEP reflected that student's attendance and most of his grades had improved since the prior school year, but he still "struggle[d] with consistent attendance" (id.).  It was reported that the student had "discussed thoughts/beliefs/emotions that [were] getting in the way of him believing in his ability to be successful and his self-esteem seem[ed] to wax and wane based on . . . external stressors" (id.).  During sessions the student and social worker discussed "strategies" the student could use to "cope with outside stressors that impact[ed] his attendance and motivation" (id.; see Dist. Ex. 14 ¶¶ 2, 6).  The November 2024 IEP noted that the student's social worker had discussed the "possibility of changing [the student's] schedule for him to have a later start time," since he had not been attending his first period class and had a failing grade, but the student did not want to change his schedule (Dist. Ex. 4 at p. 8).  The social worker and student had "discussed sleep hygiene and the importance of regular sleep routines as well as nutrition as both contributing factors to [the student's] executive functioning" (id.).  The November 2024 IEP further noted that the student needed to work on "continued engagement in school and consistent attendance," noting that when he was in school, the student demonstrated that he was "more than capable" of accessing the curriculum and benefitted from peer engagement (id.).

The foregoing demonstrates that, although the CSEs had sufficient evaluative information about the student's needs in most respects, there were outstanding questions regarding the causes underlying the student's attendance issues.  On this point, although the IEPs indicated that there had been some improvement in the student's attendance, the information also reflected that the student was described as having "chronic attendance issues" and "severe truancy" and that the student's absenteeism continued to be an issue (Parent Ex. B at p. 2; Dist. Exs. 1 at p. 6; 4 at pp. 4, 8).  As summarized above, teacher reports included in the IEP variably attributed the student's attendance issues to illness or a lack of effort or just noted that attendance was a problem (Dist. Exs. 1 at pp. 4-5; 4 at pp. 5-6).  The social worker seemed to believe that the student's poor sleep routines could be a factor (Dist. Ex. 4 at p. 8).  During the November 2024 CSE meeting, the district representative suggested that the student's absences in math might be because he "already accumulated enough math credits for graduation" (Dist. Ex. 5 at p. 5).  The November 2024 CSE inquired of the parent whether anything happened at home to trigger a recent increase in absences or what might be underlying the absences (id. at pp. 2, 3).  The parent shared that his absences were not for medical reasons but did not suggest another theory (id.).  Given the outstanding questions regarding the student's attendance, it may have been appropriate for the district to conduct a functional behavioral assessment (FBA) to explore the causes (cf. Middleton v. Dist. of Columbia, 312 F. Supp. 3d 113, 146 [D.D.C. 2018] [describing a student's FBA that identified environmental conditions triggering that student's nonattendance]).

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

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

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

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

Here, as noted above, although the district had begun to ask the right questions about the conditions under which the student's absenteeism occurred, it did not gather sufficient information to form hypotheses about the behavior.  Whether the lack of such information in the evaluation process resulted in a denial of a FAPE depends on whether the IEP otherwise adequately addressed the student's absenteeism, which is discussed below.

2. CSE Recommendations

There are two points of contention between the parties that underly the dispute about the CSEs' recommendations for the student.  The first relates to the degree to which the CSEs were required to program for the student's defiant and risk-taking behaviors that were not apparent when the student was in school.  The second, as alluded to above, relates to whether the CSEs sufficiently addressed the student's chronic absenteeism.

To meet the student's special education needs, the March 2024 CSE recommended one 30-minute session per week of individual counseling (Dist. Ex. 1 at p. 12).  The March 2024 IEP included a counseling goal focused on identifying and expressing feelings related to and identifying strategies to increase focus and motivation and improve attendance; and a goal focused on learning and using executive functioning strategies to organize and plan assignments to complete schoolwork in a timely manner (id. at pp. 10-12).  The March 2024 IEP also included strategies to support the student's management needs, including focusing prompts during class and tests, teacher check-ins, checklists, use of a daily planner, nonverbal prompts, and extended wait time to process information (id. at p. 7).

As noted above, the March 2024 IEP noted the parents' concerns regarding the student's aggressive behaviors at home and his "bad choices with no remorse or accountability" (Dist. Ex. 1 at p. 3).  The IEP also indicated that the parents wanted "long term residential support" for the student; however, the student's teachers did not report observing that the student exhibited oppositional or defiant behaviors at school (id.).

A review of the June 2024 neuropsychological evaluation report reveals that the neuropsychologist recommended that, "based on [the student's] significant behavioral concerns that ha[d] escalated to [c]onduct disorder," he required placement in a "therapeutic environment that ha[d] access to consistent psychological support and individualized academic attention" (Parent Ex. B at p. 13).  The neuropsychologist opined that the student was "a strong candidate for a therapeutic residential placement" although he acknowledged that "securing placement in such a program" could be "challenging" and "another option" was for the student to attend a "therapeutic day program" (id.).  The neuropsychologist testified that his recommendation for a residential placement was "[p]artially" based on the student's "roof-topping behaviors outside of school," as well as his diagnosis of conduct disorder and "his inability to attend school and to access learning" (Tr. p. 69).  He noted that "in order for [the student] to learn, he ha[d] to attend school . . . [a]nd if he [wa]s not able to attend school, then there [wa]s no way that he could beat his academic goals" (Tr. p. 70).  The neuropsychologist further testified that "[p]erhaps" the student's needs could be met in a therapeutic day program but noted that the student had "applied to several therapeutic day programs and was rejected, because they felt that he needed more support that they were able to provide" (Tr. pp. 72-73).[13]  He added that, since "the therapeutic day programs . . . could [not] meet [the student's] needs, [he] would have to agree with them that it [was] not sufficient" (Tr. p. 73).  On the other hand, the November 2024 IEP also reflected input from the neuropsychologist during the CSE meeting that, while the student "present[ed] with extremely bad behavior, it . . . sound[ed] like he c[ould] 'step back into classes and do well,'" c[ould] pick up on credits, and he should be provided with a plan in school to see how he responds" (Dist. Ex. 4 at p. 4).

When the CSE reconvened in November 2024, it increased the student's counseling mandate to two 30-minute sessions per week and continued annual goals to address the student's attendance and executive functioning (compare Dist. Ex. 4 at pp. 12-14, with Dist. Ex. 1 at pp. 10-12).  Speaking to the recommendations made by the November 2024 CSE, the school psychologist testified that the CSE reviewed the student's June 2024 neuropsychological evaluation report and "ultimately decided that we d[id] not see those behaviors" in school, and that the CSE focused on "mak[ing] recommendations that [we]re educationally appropriate" (Tr. p. 50).  According to the school psychologist, "when the student [was] in [school], he [was] able to make up all the work and pass the classes and he [was] respectful" (id.).  The CSE did not "see any of those behaviors or the need for that level of intensity of support," therefore, did not follow the neuropsychologist's placement recommendation (id.).  The school psychologist testified that the CSE addressed the student's "truancy" through "counseling twice per week with a social worker, and they ha[d] discussions" (Tr. pp. 50-51).  When asked if consistent school attendance was important for a student's success, the school psychologist testified that "attendance can be important but should be evaluated on a case-by-case basis" (Tr. p. 48).  According to the school psychologist, when the student was "in attendance, he [was] able to pass all of his classes and [the CSE does] not recommend residential placement for students who are truant" (Tr. p. 51).  She continued that the student's absenteeism was "not consistent" and therefore, when the student attended school, he made up the missed work and was able to pass (id.).  The school psychologist testified that the social worker recommended the increase from one counseling session per week to two, and that she did not really know how much counseling she could have offered the student (Tr. pp. 52-53).

The social worker testified in an affidavit that her sessions with the student "addressed" social/emotional health and well-being, feeling identification and expression, attendance, and executive functioning skills (Dist. Ex. 14 ¶ 5).  When asked what interventions other than counseling were used to address the student's chronic absenteeism, the school psychologist testified that she thought the district attendance person "[went] to the house one time," and thought the guidance counselor had "reached out" (Tr. p. 37).

In arguing that the IHO erred in finding that it denied the student a FAPE, the district contends that the student's diagnosed "conduct disorder is a mental health condition," and its FAPE obligation "does not include medical/psychiatric/behavioral issues that do not affect the student's educational performance" (Req. for Rev. ¶ 21).  However, the district's argument in this regard goes to an analysis of a student's eligibility for special education, whereas, here, there is no dispute that the student is eligible for special education.  For example, the district includes citation to two cases that involve a review of whether the students at issue were eligible for special education (Springer v. The Fairfax Cty. Sch. Bd., 134 F.3d 659 [4th Cir. 1998]; A. E. v. Indep. Sch. Dist. No. 25 of Adair County, Oklahoma, 936 F. 2d 422 [10th Cir. 1991]).  In addition, although the district cites 34 CFR 300.7(a)(1), which does not exist, and 8 NYCRR 200.1(mm), which defines a "preschool student with a disability," it is presumed that the district intended to cite 34 CFR 300.8(a)(1) and 8 NYCRR 200.1(zz), both of which define a student with a disability as a child meeting one of the categories of eligibility and who, by reason thereof, needs special education.  For the other health impairment category of disability, in order for a student to be found eligible for special education, it must be determined whether the student's limited strength, vitality or alertness related to a chronic or acute health program adversely affected the student's educational performance (34 CFR 300.8[c][9]; see 8 NYCRR 200.1[zz][10]).  The CSEs presumably determined that this was the case when they found the student eligible for special education as a student with an other health impairment (see Dist. Exs. 1 at p. 1; 4 at p. 1).  Accordingly, the authority cited by the district is inapposite.[14]

Nevertheless, the evidence consistently reflects that the student did not demonstrate the same defiant and risk-taking behaviors in school as those reported by the parent (see Dist. Exs. 1 at pp. 3, 6; 7 at p. 1), and the student's behaviors outside of school alone would not support a finding that the student required a more supportive program.  The student's attendance issues, on the other hand, were disruptive to his education even if the student passed many of his classes (see Parent Exs. E-G; Dist. Exs. 4 at p. 3; 14 ¶ 8).

A district may be found to have denied a student a FAPE if the student's IEP does not contain sufficient interventions to adequately address attendance issues (Middleton, 312 F. Supp. 3d at 146).  To be sure, as one court described, a student's "tardiness and attendance failures are clearly not the sole responsibility of [the district]" and the CSE "cannot rouse [a student] out of bed or escort him to school on time"; however, "[r]ecognizing the inherent limitations of [the district] over [the student], the focus of the inquiry is what, if anything, [the district] did and what, if anything, should it have done to address [the student's] attendance failure" (Lamoine Sch. Comm. v. Ms. Z., 353 F. Supp. 2d 18, 33-34 [D. Me. 2005]).  As with the student in that matter, here, "apart from assigning counseling services . . . , there is no evidence of any cohesive attempt to assure [the student]'s attendance and improve his tardiness" (Lamoine Sch. Comm., 353 F. Supp. 2d at 33-34; see also S.C. v. Chariho Reg'l Sch. Dist., 298 F. Supp. 3d 370, 389-90 [D.R.I. 2018] [finding that the first of two IEPs contained substantively fatal procedural deficiencies, such as vague goals about the student's need for coping and problem-solving skills without a reasonably defined path to improved school attendance, whereas the subsequent IEP sufficiently corrected these deficiencies with more specific goals and more extensive services, including a multi-stepped "reintegration plan" and assignment of a contract person in school]).

As noted above, the March and November 2024 CSEs acknowledged the student's inconsistent attendance, as well as the parent's concerns related thereto (Dist. Exs. 1 at pp. 4-6; 4 at pp. 4-8).  The CSEs both included annual goals in the IEPs aimed at improving the student's attendance (Dist Exs. 1 at p. 10; 4 at p. 12).  However, without an understanding of the conditions underlying the attendance issues, it is not clear that the counseling services and the associated annual goal sufficiently addressed the student's needs that resulted in the poor attendance (see L.O., 822 F.3d at 123 [finding that a failure to "attempt[] to address the root causes of [the student's] interfering behaviors, . . . cast[s] doubt on the adequacy of [the IEP's] provisions for treating them]).  For that matter, the reemergence of the attendance problems during the time leading up to the November 2024 CSE raises questions regarding whether continuing the same intervention and goal (albeit with an increase in counseling) was reasonably calculated to enable the student to make progress.[15]

On appeal, the district focuses on why the CSEs did not have to recommend a residential placement as requested by the parent, which is discussed further below; however, the district fails to identify a convincing basis to reverse the IHO's determination that the CSEs' recommendations for counseling alone were insufficient to address the student's attendance issues.  Based on the entire hearing record, I find no basis to disturb the IHO's determination that the one or two 30-minute sessions per week of counseling recommended by the CSEs were not reasonably calculated to enable the student to make progress.

B. Relief – Prospective Placement

Having found insufficient basis to disturb the IHO's finding that the district denied the student a FAPE, the next issue to be discussed is whether the IHO erred in ordering the CSE to reconvene and defer the student's placement to the CBST to locate an appropriate State-approved residential nonpublic school for the student for the remainder to the 2024-25 school year (IHO Decision at p. 7).

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

Here, at the time of the IHO's decision in February 2025, the 2024-25 school year was ongoing and, as such, I do not find that the IHO erred solely because the award was prospective in nature.  However, I do not find that the hearing record sufficiently demonstrated that a residential placement for the student was warranted.  The Second Circuit has stated that "[w]hile some children's disabilities may indeed be so acute as to require that they be educated in residential facilities, it is appropriate to proceed cautiously whenever considering such highly restrictive placements. . . . The norm in American public education is for children to be educated in day programs while they reside at home and receive the support of their families" (Walczak, 142 F.3d at 132).  A residential placement is not appropriate unless it is required for a student to benefit from his or her educational program (M.H. v. Monroe-Woodbury Cent. Sch. Dist., 296 Fed. App'x 126, 128 [2d Cir. Oct. 7, 2008]; Walczak, 142 F.3d at 122; Mrs. B., 103 F.3d at 1121-22; see Educ. Law § 4402[2][b][2]; 8 NYCRR 200.6[j][iii][d]).  In general, the Second Circuit requires that a court point to objective evidence of a child's regression in a day-program before finding that a residential placement is required by the IDEA (Walczak, 142 F.3d at pp. 131-32).  State law also requires that, in order to properly recommend a residential placement, a district must make the determination that there is no appropriate non-residential school available consistent with the needs of the student (Educ. Law § 4402[2][b][2]).

Here, although the district did not establish that the March and November 2024 IEPs offered sufficient supports to address the student's attendance issues, the information before the CSEs did not warrant a recommendation for a residential placement for the student.  For example, the hearing record was unclear as to why the private neuropsychologist changed his recommendation in October 2024 to a residential placement from his recommendation in June 2024 for a therapeutic day program (compare Parent Ex. B at p. 13, with Dist. Ex. 11 at p. 13).[16]  The neuropsychologist testified that his opinion altered because the day programs to which the student applied did not accept the student and that, therefore, he "would have to agree with them that it's not sufficient" (Tr. p. 73).  However, beyond these general statements of the neuropsychologist, the hearing record lacks any evidence to what programs the student applied or the reasons for their declinations.[17]  Further, during the November 2024 CSE meeting, the neuropsychologist seems less committed to his prior recommendations when he noted that it seemed the student could step back in to classes and do well but that he should be presented with a plan to see how he would respond (Dist. Exs. 4 at p. 4; 5 at p. 3).

The district proposes that the IHO's order should be modified to require the CSE to reconvene "to consider, but not mandate, a residential program for the Student" (Req. for Rev. ¶ 26).  Under the circumstances, including the lack of evidence sufficiently supportive of a residential placement, as well as the passage of time, which may have come with new or changing circumstances for the student, the district's suggestion is appropriate.  Accordingly, I will modify the IHO's order to provide that the CSE must reconvene to consider the student's programming, including whether a therapeutic day program or a residential placement would be appropriate to meet the student's needs.  Moreover, as the hearing record makes clear, the parent is struggling to help the student, and as the caselaw above describes, issues involving student attendance are not solely the responsibility of a school district despite a student's eligibility for special education; therefore, when the CSE reconvenes, it must include two sessions of parent counseling and training per month as a service on the student's IEP, unless the parties otherwise agree.

VII. Conclusion

There is insufficient basis in the hearing record to disturb the IHO's determination that the district failed to offer the student a FAPE for the 2024-25 school year.  However, the IHO decision is modified to provide that the CSE shall reconvene to consider whether the student's needs warrant a therapeutic day program or a residential nonpublic school.  Further, the CSE is directed to provide the parent with two sessions of direct parent counseling and training per month as a service on the student's IEP, unless the parties otherwise agree.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO decision dated February 19, 2024 is modified to direct the district to reconvene the CSE  within 15 days of this decision to discuss revisions of the student's IEP and to defer to the CBST to locate an appropriate therapeutic program for the student, either day or residential, unless the parties otherwise agree; and

IT IS FURTHER ORDERED that the district shall revise the student's IEP to provide the parent with a minimum of two sessions of direct parent counseling and training per month to assist with the student's chronic absenteeism concerns, unless the parties otherwise agree.