I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied the parents' request that respondent (the district) fund the costs of their daughter's tuition at the Tiferes Miriam School (Tiferes Miriam) for the 2023-24 school year. The appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

A review of the hearing record shows that the student received services through the Early Intervention Program, and has received special education services over the course of her educational history, including occupational therapy (OT), physical therapy (PT), speech-language therapy, counseling, hearing education services, special education teacher support services (SETSS), and the support of an FM unit (Parent Ex. J ¶ 2; Dist. Ex. 5 at p. 1).  According to the parents, the student attended a special education program at Tiferes Miriam for the 2021-22 and 2022-23 school years (Parent Ex. J ¶ 2).

On May 1, 2023, the CSE convened to create an IEP for the student for the 2023-24 school year, which documented that the student was eligible for special education as a student with a hearing impairment (Dist. Ex. 1).  The May 2023 CSE noted that the student was attending a 10th grade class at Tiferes Miriam and was "not receiving Speech, OT, and Hearing Education" (id.). According to the IEP, during the May 2023 CSE meeting, the "[p]arent requested to remove occupational therapy" (OT) from the student's IEP" (id. at p. 3).  The May 2023 CSE recommended that the student be placed in a 15:1 special class for math (10 periods per week), English Language Arts (ELA) (10 periods per week), social studies (four periods per week), and science (four periods per week) (id. at pp. 18-19).  The CSE also recommended that the student receive one 30-minute session per week of individual counseling services, two 30-minute sessions per week of individual hearing education services, three 30-minute sessions per week of individual speech-language therapy, and daily access to an individual FM unit (id. at p. 18).

The district created a prior written notice, dated August 15, 2023, notifying the parents of the recommendations made by the May 2023 CSE, and confirming that the May 2023 CSE created the student's May 2023 IEP after having reviewed a psychoeducational assessment, a July 4, 2021 speech and language assessment; an OT assessment; and a May 1, 2023 teacher report (progress report) (Dist. Ex. 2 at p. 1).  Through a school location letter dated August 15, 2023, the district notified the parents of the name and location of the public school the student was assigned to attend for the 2023-24 school year (Dist. Ex. 3).

In a letter, dated August 22, 2023, the parents notified the district that they had concerns about the May 2023 IEP and that they attempted to visit the assigned public school but were unable to do so (Parent Ex. B).  The parents further indicated they were rejecting the May 2023 IEP because they believed that the 15:1 class size would be detrimental to the student, they intended to place the student in Tiferes Miriam for the 2023-24 school year, and they intended to seek public funding to pay for the student's placement (id. at pp. 1-2). The district emailed the parents confirmation that it received their letter (id. at p. 3).

The parents enrolled the student in Tiferes Miriam for the 2023-24 school year (Parent Ex. G).[1]  The student began attending Tiferes Miriam on September 6, 2023 (Parent Ex. H ¶ 3).

According to a letter dated November 7, 2024, sent from the attorney for the parents to the district, the student's mother toured the assigned public school on November 3, 2023 (Parent Ex. C at p. 2).  As stated in the letter, after the visit, the parents determined that the assigned public school was not an appropriate placement for the student (id.). The parents notified the district that they would continue to enroll the student in Tiferes Miriam and would be seeking public funding for the student's private placement (id.).

A. Due Process Complaint Notice

In a due process complaint notice dated October 24, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A). The parents asserted that the May 2023 CSE failed to evaluate or assess the student's executive or behavioral functioning and hearing, noting that the CSE acknowledged it did not conduct a functional behavioral assessment (FBA) or a hearing education assessment of the student (id. at p. 2). The parents further contend that the CSE failed to consider information submitted by the school the student attended (id.).  The parents alleged that the May 2023 CSE was not validly constituted and that the parents were denied the opportunity to meaningfully participate in the CSE process (id. at p. 3).  In connection with the above, the parents asserted that the recommendation for a 15:1 special class ratio ignored the nonpublic school and parents' concerns, as the nonpublic school indicated the student needed to be in a small class and the parents expressed concern during the CSE meeting that a 15:1 class would be too large for the student (id.at pp. 2, 3).  Additionally, as a substantive argument, the parents asserted that the CSE's recommended class size of 15:1 was too large for the student (id. at p. 3).  In addition, the parents generally contended that the IEP did not contain sufficient goals, instruction, supports, or strategies (id.).  Finally, the parents acknowledged that the district timely notified them of the student's assigned public school, but claimed that when they called to contact the assigned public school to set up a tour the district failed to respond, thereby denying the parents the opportunity to tour the assigned public school prior to the start of the 2023-24 school year (id. at pp. 3-4).  According to the parents, when they were finally able to tour the assigned public school in November 2023, they found that it was an inappropriate educational placement for the student identifying factors such as that the school was "loud and distracting" and that a "large and chaotic environment would be overwhelming" for the student (id. at p. 4).  With respect to the student's placement during the pendency of the proceeding, the parents asserted that the district should fund Tiferes Miriam based on an IHO decision issued in October 2024(id.).  As relief, the parents requested funding or reimbursement for the costs of the student's tuition at Tiferes Miriam for the 2023-24 school year (id. at p. 5).

B. Impartial Hearing Officer Decision

An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on February 7, 2025 and concluded the same day (Tr. pp. 20-77).[2]  In a decision dated February 25, 2025, the IHO identified the allegations the parents addressed during the hearing, and determined that the allegations that were not argued during the hearing had been abandoned (id. at pp. 4-5).[3]  Turning to the merits pf the parties' dispute, the IHO found that the district had the burden of proving that it had provided the student with a FAPE for the 2023-24 school year and that the district met its burden and established that the student's March 2023 IEP "was reasonably calculated to enable [the student] to make appropriate progress" (id. at pp. 18, 22-25).  Although the IHO could have ended her analysis there, the IHO determined that the hearing record did not support that Tiferes Miriam provided the student with a program that met all of her areas of need and that the parents therefore failed to prove that Tiferes Miriam was an appropriate unilateral placement for the student (id. at pp.  25-26).  The IHO also determined that the equitable considerations favored the district because the hearing record established that the parents "never meaningfully considered the public placement" (id. at p. 26).  Additionally, the IHO stated that had she awarded the parents tuition at Tiferes Miriam, she would have reduced it by 20 percent because 20 percent of the student's school time was spent on "nonacademic, religious instruction without any indication that it was individualized to meet the student's needs or provide any educational benefit" (id.).  The IHO dismissed the parents' claims with prejudice (id. at p. 27).

IV. Appeal for State-Level Review

The parents appeal.  Initially, the parents allege that the IHO erred in determining that any claims not asserted during the impartial hearing were abandoned and assert the IHO should have considered them.  According to the parents, the IHO failed to address their claim related to the general education portion of the school day and improperly rejected the parents' claims regarding the evaluative information considered by the May 2023 CSE. The parents next assert that it was improper for the IHO to find that the district had provided the student with a FAPE for the 2023-24 school year because the district did not offer a cogent and responsive explanation for the May 2023 IEP recommendations. According to the parents, the documentary evidence was "conclusory, perfunctory, and vague" and does not support the IHO's determination that the May 2023 CSE's recommendations were appropriate. The parents further allege that the May 2023 IEP was flawed because the CSE had not relied on accurate and complete evaluative material. The parents argue that the May 2023 CSE committed a procedural violation by not considering a class size smaller than 15 students and one teacher and that the district committed procedural violations in delaying the mailing of the finalized IEP and prior written notice and in that the assigned public school site did not return the parents' phone call to set up a visit until after the start of the school year. Turning to the parents' unilateral placement of the student at Tiferes Miriam, the parents attest that the IHO erred in finding they did not meet their burden of proving that Tiferes Miriam was an appropriate placement for the student under the totality of the circumstances. Regarding equitable considerations, the parents argue that the IHO erred by finding that equities favored the district and that the IHO's prospective 20 percent tuition reduction was not an issue raised by the district and was not properly before the IHO.

In its answer, the district asserts that the IHO's finding that the district proved that it had procedurally and substantively provided the student with a FAPE for the 2023-24 school year should be affirmed.[4]  The district argues that the IHO's ruling that the parents failed to meet their burden of proving that Tiferes Miriam was an appropriate unilateral placement should be affirmed.  The district asserts that the IHO's holding that equitable considerations favored the district should be affirmed. The district argues that any issues that were contained in the parents' memorandum of law and were not raised in the request for review were not properly raised on appeal. The district also asserts that the following issues were not addressed during the impartial hearing and should be deemed abandoned by the parents: the district's alleged failure to evaluate, whether there was a need for alternate assessments, and the appropriateness of the assigned public school.

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]

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

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

VI. Discussion

A. Scope of the Impartial Hearing and of Review

I first address the parties' dispute as to what issues are before me on appeal. The district argues that all issues in the parents' due process complaint notice that were not addressed during the impartial hearing should be deemed abandoned (Answer ¶ 21). In particular, the district argues that the following claims should be deemed abandoned by the parents: the failure by the district to evaluate the student; the student's alleged need for alternate assessment; and the appropriateness of the assigned public school (id.).  In her decision, the IHO determined that the only allegations argued by the parents during the impartial hearing regarding the alleged denial of a FAPE for the 2023-24 school year were as follows: the appropriateness of the 15:1 special class recommendation; the recommendation for a 15:1 special class being based on availability rather than the student's needs; and the parents'  assertion that the assigned public school did not return their call requesting a tour (IHO Decision at p. 5). The IHO held that, with the exception of those three specific allegations, all of the other claims asserted by the parents in the due process complaint notice were not pursued by the parents at the impartial hearing and, therefore, had been abandoned (id.). The parents assert on appeal that they did not waive or withdraw any of their due process complaint claims and request that all claims raised in their due process complaint notice, including those not addressed by the IHO, be considered on appeal (Req. for Rev. ¶ 4). Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing (Application of the Board of Education of the Hewlett-Woodmere Union Free School Dist., Appeal No. 22-129; Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056).  Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.507[d][3][i], 300.511[d]; 8 NYCRR 200.5[j][1][ii]), or the original due process complaint notice is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]).  Indeed, "[t]he parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function.  To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district" (R.E., 694 F.3d 167 at 187-88 n.4; see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 [2d Cir. June 18, 2014]).

Here, the due process complaint notice alleges that the district denied the student a FAPE for the 2023-24 school year because the CSE failed to: conduct and consider sufficient evaluations and assessments of the student, including an FBA and a hearing education assessment;  properly consider the Tiferes Miriam 2022-23 progress report; have a validly constituted CSE team that would consider the full continuum of services;   consider a class smaller than 15:1; allow the parents effective participation in the CSE process;  adequately consider the student's needs;  recommend that the student be alternately assessed;  and recommend sufficient goals.  The parents also alleged that the district failed to allow the parents the opportunity to tour the assigned public school prior to the start of the 2023-24 school year or to afford the student's mother access to the assigned public school's therapy rooms, and asserted that the assigned school was too large and grouped special classes based on credits, not age or level of functioning.  The parents further objected to the CSE's recommendation that the student participate in gym and lunch with the general education student's at the assigned public school (see Parent Ex. A).

As reflected above, the parents alleged numerous bases in their due process complaint notice in support of their overarching assertion that the district denied the student a FAPE for the 2023-24 school year (see Parent Ex. A).

Prior to the hearing, during a status conference, the IHO indicated that any allegations that were raised in the due process complaint notice but "are not subsequently argued with specificity may be deemed abandoned" before reviewing the parents' due process complaint notice with the parents' attorney and identifying the following issues: the composition of the May 2023 CSE identified as the district representative not being aware of all of the options along the continuum of services (Tr. p. 13).  The IHO then identified a number of issues raised in the due process complaint notice such as that the CSE did not consider any class smaller than the recommended 15:1 special class, that the CSE prevented parent participation, that the May 2023 CSE recommended a 15:1 special class for core academics and the student needed a special class for all subjects, that the district failed to conduct evaluations, that the CSE did not consider the nonpublic school progress reports, and that the student was not recommended for an alternate assessment before specifically noting that the due process complaint notice indicated "the goals we[re] insufficient, but it doesn't say why or what was missing" and asking the attorney for the parents to "specify" (Tr. pp. 13-14).  The attorney for the parents responded by addressing the allegations related to goals and the IHO moved on to discuss the parents' assigned school claims, before ending by asking if there was anything else (Tr. pp. 14-17). The attorney for the parents again raised the issue related to predetermination before indicating that the discussion encompassed everything (Tr. pp. 17-18).

The parents argue on appeal that they did not withdraw or waive any of their claims during the impartial hearing and, accordingly, the IHO should have considered all claims raised in the due process complaint notice.  Moreover, as provided for in 8 NYCRR 279.4, the parents have identified on appeal "the failure or refusal to make a finding" by the IHO with respect to some of the claims the IHO determined the parents "abandoned" at the hearing.  More specifically, the parents raise allegations related to the sufficiency of the evaluative information before the May 2023 CSE, the recommended annual goals, and the student's need for a high level of 1:1 and small group instruction, as well as concerns regarding the student being in a general education class for a portion of the school day (Req. for Rev. ¶5).

Based on a review of the status conference and the transcript of the hearing overall, the parents did not waive any of the claims raised in the due process complaint notice and identified during the status conference, therefore, the IHO's finding that the parents abandoned certain of  their claims at the impartial hearing is not supported by the hearing record and mut be reversed and all claims raised in the request for review that were included in the parent's due process complaint notice will be addressed below.

B. FAPE 2023-24 School Year

1. Documentary Evidence

As an initial matter, before addressing the substance of the parents' claims on appeal, I will address the parents argument that the IHO erred in relying on documentary evidence alone in her determination that the district provided the student with a FAPE for the 2023-24 school year. Specifically, the parents argue that the district "failed to offer a 'cogent and responsive' explanation for its CSE's recommendations" and that "[i]n the absence of [district] witness testimony, the IHO hypothesized and speculated regarding the CSE's decision-making process based on a review of the documentary evidence" (Req. for Rev. ¶¶ 7, 11).

As noted above, the burden of production and persuasion has been shifted under State law to a district to show that it offered a student a FAPE (Educ. Law § 4404[1][c]).[6]  In Endrew F., the Supreme Court held that the "reviewing court may fairly expect [school] authorities . . .  to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances"(580 U.S. at 404).  However, neither the IDEA, State Law, nor case law provides that a district fails to meet its burden of proof simply because the evidence produced does not consist of witness testimony and instead, each party has the right to "[p]resent evidence and confront, cross-examine, and compel the attendance of witnesses" (34 CFR 300.512 [a][2]).  Because there is a right to present documentary evidence, the documentary evidence must be discussed as it relates to the disputed issues because a district could prevail on some or all of the disputed issues related to a FAPE for a student by producing evidence consisting of documentary evidence.  An IHO is required to conduct a fact-specific analysis in order to determine whether a district offered the student a FAPE and a district must ensure that the hearing record includes evidence addressing the particular issues raised by the parents in their due process complaint notice.  The sufficiency of the evidence presented should be determined after weighing the relative strengths and weaknesses of the parties' evidence in light of the allegations and the relevant legal standards.  To be clear, there is no procedural requirement that a district call witnesses at the impartial hearing in order to address the parent's due process complaint notice, especially if the district submits the extensive documentation that is required under the procedures of the IDEA itself.[7]  Thus, the parents' argument suggesting a bright line rule requiring witness testimony is rejected and, as discussed further below, I will address whether the documentary evidence alone in this case is sufficient to establish the appropriateness of the May 2023 IEP in light of the allegations raised by the parents that are before me on appeal.[8]

2. Sufficiency of Evaluative Information

The parents assert that the district denied the student a FAPE for the 2023-24 school year,

specifically arguing that the CSE failed to perform and consider sufficient evaluations.

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

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

            Looking back to the parents' due process complaint notice, they asserted that the May 2023 CSE did not conduct or consider assessments of the student's executive or behavioral functioning or her hearing and that the CSE did not adequately consider a progress report from the student's nonpublic school (Parent Ex. A at p. 2).  A review of the hearing record indicates that the CSE had before it and considered a June 2021 OT evaluation report, a July 2021 speech-language evaluation report, a July 2021 psychoeducational evaluation report, and a May 2023 teacher progress report as well as input from the student's mother and the student's private school assistant principal (Dist. Exs. 1, 2, 4-6).  On appeal, rather than raise the arguments that were made in the due process complaint notice, the parents' arguments focus on the documents submitted by the district, pointing out alleged insufficiencies in the submitted evaluative information.

The parents argue that the June 2021 OT evaluation is inadequate because it does not contain any information regarding the student's performance during the evaluation (see Dist. Ex. 6).  The parents correctly point out that the evaluation form refers the reader to "[p]lease see completed OT [e]valuation [r]eport in '[d]ocuments [r]elated to IEP'" and refers to an "enclosed [a]ssessment" but the hearing record does not include those documents (id.).  However, during the CSE meeting, the parents requested discontinuation of OT and the May 2023 progress report indicated that the student wrote slowly but legibly and had no noticeable physical limitations (Dist. Exs. 1 at p. 3; 4 at p. 3).

In developing the May 2023 IEP, the CSE incorporated information from the July 2021 psychoeducational evaluation (Dist. Exs. 1; 5).  The parents assert that it is not clear that the July 2021 psychoeducational evaluation was a valid and reliable assessment because it was administered remotely.  While, the July 2021 psychoeducational evaluation indicated that this evaluation was completed remotely due to the COVID-19 pandemic and noted that all scores should be interpreted with caution because the assessments used were not normed for remote administration this does not automatically render the assessment invalid as argued by the parents on appeal, but instead indicates as noted that the student's scores "should be interpreted with caution" and consideration should be given to the fact that the test was administered remotely (Dist. Ex. 5 at pp. 2, 5). 

With regard to the student's intellectual functioning, review of the psychoeducational report shows that   the July 2021 remote administration of the Wechsler Intelligence Scale for Children - Fifth Edition (WISC-V) yielded indices scores that fell within the extremely low to low average range and a full-scale IQ of 76, which fell within the very low (borderline) range (Dist. Ex. 5 at p. 2).  The scores from the July 2021 intelligence testing were included in the May 2023 IEP (compare Dist. Ex. 5 at p. 2, with Dist. Ex. 1 at p. 1).  In the psychoeducational report, the evaluator indicated that the student was functioning in the very low range of intelligence, specifically noting that her verbal comprehension fell within the low average range, fluid reasoning fell within the lower end of the low average range, working memory fell within the lower end of the low average range and processing speed fell within the upper end of the extremely low range (Dist. Ex. 5 at p. 4). 

Turning to the student's academic skills, the psychoeducational report indicated that the student's skills and ability to apply those skills both fell within the low range (Dist. Ex. 5 at p. 4).  According to the report, remote administration of the Woodcock-Johnson IV Tests of Achievement (WJ-IV ACH) placed the student's reading skills within the average range, relative to her ability to identify and pronounce words correctly (sight word recognition) (Dist. Exs. 1 at p. 1; 5 at pp. 3-4).

The student was able to demonstrate phonetic skills in sounding out both familiar and unfamiliar words containing up to four syllables (Dist. Exs. 1 at p. 1; 5 at p. 4).  Her passage and reading comprehension fell within the low average range relative to her ability to understand a written passage and complete the passage with a single word, her ability to identify words that were missing from a text, and ability to efficiently utilize both semantic and syntactic clues in the written text (id.).

In mathematics, the May 2023 IEP reported from the July 2021 psychoeducational evaluation that the student was functioning within the low range, relative to her ability to complete simple written mathematical computations (Dist. Exs. 1 at p. 2; 5 at pp. 3-4).  The student was able to complete simple single digit and double-digit addition facts but had difficulty completing multi-digit addition facts (Dist. Exs. 1 at p. 2; 5 at p. 4).  Additionally, she was able to complete single- and double-digit subtraction facts involving borrowing or carry over, and single digit and double-digit multiplication facts (id.).  She was able to complete single digit division facts but was unable to complete more complex division facts, simple fractions not involving a common denominator, or reduce or simplify fractions (id.).  Finally, the IEP reported that the student was functioning within the low range with respect to math reasoning as it pertained to her ability to listen to, analyze and recognize the appropriate procedure to follow when solving math problems (id.).

            With regard to written language, the May 2023 IEP reflected information from the July 2021 psychoeducational evaluation report that indicated the student was functioning within the very low range, relative to her ability to write or spell orally presented words correctly, noting that she was able to spell most two-syllable words and one three-syllable word (Dist. Ex. 1 at p. 2).  With regard to her writing samples, the IEP stated that the student was functioning within the low average range relative to her ability to produce quality writing samples of increasing grammatical and conceptual complexity to a variety of demands (id.).  The student struggled with organizing and formulating coherent sentences with adequate structure, seemed confused and frequently omitted words which would have improved the meaning of the sentence, omitted essential facts and information, and had difficulty with punctuation and grammar (id.).  The IEP further stated that the student occasionally did not begin sentences with a capital letter and her writing was often illegible due to poorly formed letters (id.).  The psychoeducational report indicated the student was functioning below grade expectancy with regard to word recognition, reading comprehension, spelling, expressive writing, math computation, and applied math problem solving skills (Dist. Ex. 5 at p. 4).[9]

            Additional information provided by the July 2021 psychoeducational evaluation showed that the student was evaluated due to concerns regarding her cognitive functioning as well as her academic needs (Dist. Ex. 5 at pp. 1, 4). The evaluation report described the student's medical history and noted that she had a 15 percent hearing loss bilaterally and wore hearing aids, and had several surgeries on her eyes, wore glasses and did not have peripheral vision (id. at p. 1).[10] The evaluator reported that the student's verbal/expressive language skills were adequate, she was able to easily organize her thoughts and express herself in an understandable and age-appropriate manner, and could carry on a clear, relevant goal directed conversation (id.). The student's receptive language skills were adequate to mildly decreased relative to her ability to easily recall, understand, grasp and carry out task related demands (id. at p. 2). The evaluator described the student as often confused, requiring repetition and clarification (id.).

            According to the July 2021 psychoeducational evaluation, clinical interview and review of clinical data revealed that there was no evidence of significant feelings of anxiety or depression, no significant issues with self-esteem, and the student's interpersonal relationships appeared adequate (Dist. Ex. 5 at p. 4).  The evaluator noted that the testing suggested various factors which might impact the student's overall academic functioning and adjustment including issues related to her ability to sustain working memory, ability to sustain attention and concentration, executive functioning, processing speed, verbal/linguistic/auditory processing, fluid reasoning, visual motor integration, communication and fine motor skills (id.).

            The May 2023 IEP incorporated the content of a May 2023 progress report in describing the student's management needs, specifically noting that the student required manipulatives, extra paper, verbal prompts, visual aids (picture clues/flashcards), repetition of materials and directions, positive reinforcements, and leveled texts (compare Dist. Ex. 1 at pp. 3-4, with Dist. Ex. 4 at p. 4).  The parents state that although the district represented in the prior written notice that it relied on a May 2023 progress report in developing the student's IEP, it failed to include a copy of the dated progress report in its documentary exhibit package and instead submitted an "undated, unsigned"  document "devoid of any information regarding the individual who authored it" (Req. Rev. ¶12).  The parents do not otherwise argue, however, that any of the substantive information concerning the student in the submitted progress report or as identified in the IEP is inaccurate or incomplete.

            The May 2023 progress report indicated that the student was performing in the middle of seventh grade in decoding, the end of sixth grade in reading comprehension, the middle of sixth grade in written language, the middle of fifth grade in spelling and organization, the middle of fifth grade in math calculations and the end of fourth grade in math problem solving (Dist. Ex. 4 at p. 1). The narrative indicated that decoding was an area of strength for the student and noted that she was "capable of answering straight forward questions with high levels of accuracy," had some analytical capabilities especially in oral comprehension, and had improved in her ability to answer open-ended questions clearly (id. at p. 2). The progress report indicated that higher order thinking questions were difficult for the student, especially with more complex passages, and that the student struggled with syllabication, and "progress, though steady, is slow and requires much time and practice" (id.). In writing, the progress report indicated that spelling was an area of strength for the student, and could write properly structured sentences with correct basic capitalization and punctuation, a basic paragraph clearly and coherently, and was working on constructing fact-based essays (id.).  However, the report further indicated that the student struggled with creativity, her writing was simplistic and immature, her vocabulary was delayed, and she often forgot to apply capitalization and punctuation rules to her writing (id.).  With regard to math, the progress report indicated that the student was "highly motivated to progress," was able to complete simple word problems in addition, subtraction, multiplication and division, could complete two-step word problems using all four basic operations, and had acquired a basic understanding of fractions (id.).  She struggled with computation, frequently mixing up numbers, signs and making "careless" mistakes, required a lot of repetition and reinforcement of skills to maintain ability, acquired new skills slowly, needed them broken down into small steps, and was "highly frustrated" by the pace of her lesson (id.).

            With regard to receptive language skills, the May 2023 progress report indicated that the student was capable of understanding concepts, as long as more complex topics were broken down into simpler pieces, and she was able to comprehend and follow directions with reminders and when given multi-step instructions (Dist. Ex. 4 at p. 3).  In expressive language skills, the student was reported to ask and answer questions in class, and generally expressed herself well, but could become flustered if she felt under pressure and would forget what she was saying or be unable to complete her thoughts (id.).  Additionally, the student had a slight speech impediment, delayed vocabulary, and could be shy and reluctant to advocate for herself, but this was noted to be improving (id.).

            Socially, the May 2023 progress report indicated that the student interacted properly with teachers; however, her conversational skills and social comprehension were delayed (Dist. Ex. 4 at p. 3). [11] Additionally, the report noted that the student's interactions had improved, and she was well liked although her anxiety could impede her ability to enjoy social situations (id.).  The student was described as highly sensitive, but would generally respond to corrective feedback in a positive way and she usually could remain focused throughout a lesson (id.).

            The May 2023 progress report described the student as organized and capable, transitioning nicely between classes and rarely requiring assistance (Dist. Ex. 4 at p. 3). The student was reported to write slowly, but legibly, had no noticeable physical limitations and could utilize technology appropriately (id.). The May 2023 progress report further indicated that the student was learning in a small group setting (7:1 or 2), the curriculum was individualized, skills carefully sequenced, used a lot of repetition and reinforcement of skills, the pace of lessons was set by her comprehension and ability, at the time she was placed in higher track classes for subjects that she did well in with lower track classes for more difficult subjects, and that she benefitted from a multisensory approach (id. at p. 4). According to the progress report, the management strategies being used in the classroom included: manipulatives, extra paper, verbal prompts, picture cards, leveled texts, flash cards, highlighters, differentiated classwork, positive reinforcers, re-teaching and repeated directions (id.). The progress report recommended that the student be in a small group setting with much individualized attention, repetition, reinforcement, carefully sequenced skills and specialized techniques (id. at p. 5).

Turning to the student's speech and language needs, available to the CSE described the student's receptive language skills as below average with regard to identifying semantic relationships and as at-risk in answering questions related to paragraph length material (Dist. Ex. 7 at p. 1).[12] According to the report, the student's expressive language skills were characterized by weaknesses in recalling sentences of increasing length and complexity and the student presented with average ability to formulate syntactically correct sentences (id.).  Additionally, the student presented with strengths in her reading comprehension skills by as evidenced by her ability to answer comprehension questions with 70 percent accuracy (id.).  However, the report noted that the student's narrative lacked details, characters, and complex sentences, and she demonstrated difficulties telling a simple narrative about the story (id.).

Additional information provided in the July 2021 speech-language evaluation report included that the student's voice quality was low, she spoke in a muffled tone on residual air which contributed to her poor intelligibility at times (Dist. Ex. 7 at p. 1).  The evaluator indicated that the student presented with distortions of /r/ in all positions and judged her articulation to be 90 percent intelligible in connected speech (id.).  Although the "evaluator made no recommendations with respect to the appropriate program," as alleged by the parents in their appeal, the evaluator provided the CSE with sufficient information to create an appropriate IEP (Req. for Rev. ¶ 17; see Dist. Ex. 7).

As detailed above, the present levels of educational performance included in the May 2023 IEP showed that the CSE had sufficient evaluative information to develop an appropriate educational program for the student.  Additionally, the parents' arguments regarding the sufficiency of the evaluative information are not supported by the weight of the evidence and, additionally, to the extent the parents argue  that the CSE did not adequately consider the May 2023 progress report, as discussed in more detail above, the CSE considered the progress report and used  information form the report to help determine the student's management needs as well as to develop many of the student's annual goals for the 2023-24 school year.

3. May 2023 IEP

With respect to the May 2023 IEP, the parents argue on appeal that the IHO failed to address their claim that the annual goals were not appropriate for the student and, further, that the IHO incorrectly determined the May 2023 CSE's recommendation of a 15:1 special class for all academic subjects was an appropriate placement for the student.

On May 1, 2023, a CSE convened to develop the student's IEP for the 2023-24 school year (see Dist. Ex. 1). As discussed in more detail above, the CSE had before it and considered the above-described June 2021 OT evaluation, July 2021 speech and language evaluation, July 2021 psychoeducational evaluation, and May 2023 progress report (Dist. Ex. 1; 2; 4; 5; 6).

            Additional information contained in the May 2023 IEP included information provided by the parents and the student's nonpublic school assistant principal (Dist. Ex. 1 at p. 2). According to the information provided by the parents, the student loved to read and read all the time, but the parents were unsure if the student was comprehending what she read, the student wrote beautifully but small, struggled in math, and had some issues with articulation but was able to have conversations with others (Dist. Ex. 1 at p. 2).  The parents indicated that math was a big area of concern for the student (id. at p. 3). According to the information attributed to the assistant principal, the student was a hard worker and was motivated, but got frustrated when she could not advance the way she wanted (id. at p. 2). The assistant principal reported that the student was making progress, her reading comprehension had improved two levels, she had mastered a lot of concepts during the 2022-23 school year, and she improved on word problems (id.). The assistant principal further reported that the student had some friends, but she could be more outgoing, specifically noting that other students had to initiate conversations with her (id.). Finally, the assistant principal reported that the student liked to be challenged and was on the Regents track, although not in all subjects, and might not get a Regents diploma (id.). Socially, the May 2023 IEP described the student as sweet and caring, noting she "love[d] everyone"; however, the IEP also indicated that the student preferred to be with her family and did not initiate calls to peers in her class (Dist. Ex. 1 at p. 3).  Additionally, the student's mother expressed that she wanted the student to be more involved with children her age (id.). The May 2023 IEP further indicated that the student presented with delays across academic domains, in expressive and receptive language, and in social-emotional skills, as well as a hearing loss, all of which "hinder[ed] her ability to functionally take part in the classroom without continued academic support, [s]peech, [c]ounseling, and [h]earing [e]ducation services" (id. at p. 4).

            To support the student's management needs, the May 2023 CSE recommended:  small group work to enhance peer to peer interactions; partner work to enhance peer to peer interaction and skill acquisition; manipulatives; visual aids; articulation drills to address misarticulation of phonemes; leveled texts to enhance decoding skills and reading comprehension; redirection; repetition of material and directions; breakdown of material to enhance learning; verbal and gestural prompts; oral motor activities to address expressive delays; positive reinforcement; coping strategies to address frustration and difficulties socially; a multi-sensory learning approach; extra time on assessments and assignments; a separate location for testing with minimal distractions; tests read on all assessments longer than 45 minutes; preferential seating close to the instructor during instruction and near the instructor during assessments; continued use of an FM unit; and auditory amplification (Dist. Ex. 1 at pp. 3-4).

            The May 2023 CSE recommended the student attend a 15:1 special class in a community school for core academic classes and receive the following related services:  one 30-minute session per week of individual counseling, two 30-minute sessions per week of individual hearing education services, and three 30-minute sessions per week of individual speech-language therapy (Dist. Ex. 1 at pp. 18-19, 25). Additionally, the student was recommended to receive a FM unit daily for all subjects except lunch and gym; as well as the following testing accommodations: extended time (1.5), separate location or room, tests read except ELA assessments, and auditory amplification (id. at pp. 19, 21).

            a. Annual Goals

In the due process complaint notice, the parents argued that the May 2023 IEP failed to recommend sufficient annual goals for the student (Parent Ex. A at p. 3). In both the due process complaint notice and on appeal, the parents do not further elaborate on the alleged deficiencies of the goals that the CSE developed for the student as part of  the May 2023 IEP.

An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 CFR 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]).  Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 CFR 300.320[a][3]).  The IDEA does not require that a district create a specific number of goals for each of a student's deficits, and the failure to create a specific annual goal does not necessarily rise to the level of a denial of FAPE; rather, a determination must be made as to whether the IEP, as a whole, contained sufficient goals to address the student's areas of need (J.L. v. New York City Dep't of Educ., 2013 WL 625064, at *13 [S.D.N.Y. Feb. 20, 2013]; see C.M., 2017 WL 607579, at *20-*21).

In order to address the student's identified needs, the May 2023 CSE developed approximately 14 annual goals designed to improve the student's reading, writing, math, language, social-emotional, and conversational and self-advocacy skills (Dist. Ex. 1 at pp. 7-17). Specifically, to address her needs in reading comprehension and decoding, the student's annual goals were to improve the student's ability to answer higher order thinking questions for complex passages and to syllabicate words and decode at a higher level (id. at pp. 7-8).  In writing, annual goals were developed for the student to improve her ability to write multiple paragraphs using creativity and detailed writing techniques with grade appropriate vocabulary, spelling, capitalization and punctuation rules (id. at p. 8).  The CSE developed two annual goals in math designed to improve the student's ability to solve math problems accurately with minimal errors, and to demonstrate age appropriate math problem solving skills by identifying and associating key math phrases and operations, her ability to correctly determine the steps needed to solve the problems, use informal counting strategies to find solutions and using manipulative to model the action in the problems (id. at pp. 8-9).  To address the student's speech-language needs, annual goals were directed at improving the student's comprehension and ability to follow directions with minimal repetitions and to categorize and provide attributes to acquire age-appropriate vocabulary words and use in proper context (id. at pp. 10-11). In the area of social-emotional skills annual goals were designed to improve the student's ability to advocate for her wants and needs, and to identify and manage her feelings on a daily basis (id. at pp. 12-13).  Finally, with respect to skills addressed by hearing education services, the student's annual goals were to improve her ability to advocate for her hearing needs and to improve her receptive language skills by retaining and interpreting auditory information to follow multi-step directions as well answer comprehension questions based on an oral passage and/or lecture (id. at pp. 15-16).

As described above, the annual goals were designed to address the student's skills in reading, writing, math, language, social-emotional, and conversational skills, as well as for her to advocate for her hearing needs, which lines up with her identified needs (Dist. Ex. 1 at pp. 7-17).  Additionally, the hearing record shows that many of the goals were developed utilizing information provided by the student's then-current teacher (compare Dist. Ex. 1 at pp. 7-14, with Dist. Ex. 4 at pp. 2-5).  Furthermore, the annual goals had defined criteria, identified the method by which progress would be measured, and identified a schedule for progress monitoring (id.).  As the annual goals aligned with the student's areas of need and were sufficiently measurable and clearly defined, the hearing record does not support a finding that the May 2023 CSE did not develop sufficient annual goals.

b. 15:1 Special Class and Least Restrictive Environment

The parents assert that the district did not provide a cogent and responsive explanation for the May 2023 CSE's recommendation for a 15:1 special class and that a 15:1 special class would not have provided the student with the level of small group and individualized support, instruction, and attention she required.  According to the parents, the information available in the hearing record did not support the recommendation for a 15:1 special class for academics only, asserting that the IEP was silent as to how the student would be supported during nonacademic classes.  The parents further argue that the recommendation for a 15:1 special class was based on district policy and resources rather than the student's needs and that the student required a smaller class size.  The district argues that the 15:1 special class is a smaller class size and in recommending it for core academics, the program would have provided the student with the support she needed to advance, and the general education classes would have offered her the opportunity to learn among her peers.

            The May 2023 CSE recommended that the student be placed in a 15:1 special class for math (10 periods per week), English Language Arts (ELA) (10 periods per week), social studies (four periods per week), and science (four periods per week) (id. at pp. 18-19).  The CSE also recommended that the student receive one 30-minute session per week of individual counseling services, two 30-minute sessions per week of individual hearing education services, three 30-minute sessions per week of individual speech-language therapy, and daily access to an individual FM unit (id. at p. 18).  State regulation defines a 15:1 special class placement as the "maximum class size for those students whose special education needs consist primarily of the need for specialized instruction" (8 NYCRR 200.6[h][4]).

The IHO held that "as to the appropriateness of the 15:1 class for only core academics, … that recommendation [is] supported by the record" (IHO Decision at p. 22).  The IHO noted that "the student demonstrated no adaptive or behavioral concerns, and her academic concerns, while requiring specialized instruction, were not severe" (id.).  The IHO described the student's "significant academic progress the prior year" and stated that "[t]he CSE was told that the student enjoy[ed] being challenged and [wa]s more resistant when things move at a slow pace, all of which supported her readiness for a larger class" than she was presently attending at Tiferes Miriam (id. at p. 23).  The IHO noted that "[t]here [wa]s nothing in the evaluative materials available to the CSE that suggested that the student could not participate in nonacademic courses, such as [physical education] or electives like art or music, with her nondisabled peers" (id.).  Moreover, the IHO noted that "[t]he fact that the student was on a Regents track for some courses support[ed] the CSE's determination that she was capable of being educated, at least in part, with her nondisabled peers" (id. at p. 24).  The IHO further noted that both "[t]he IEP and [prior written notice] state[d] that the CSE believed the recommended 15:1 program was most appropriate for the student, and [she] f[ound] that belief supported by the evaluative materials available to [it].  Although it appears to be true that [the CSE] did not consider any more restrictive placements, [it was] bound by the LRE requirement" (IHO Decision at p. 22).

Initially, the parents assert that the district has not provided a sufficient explanation for the May 2023 CSE's recommendations and allege that the CSE predetermined the student's placement because a smaller class was not available.

Review of the May 2023 IEP shows that the student presented with delays across academic domains, in expressive and receptive language, and in social-emotional skills, as well as a hearing loss, all of which "hinder[ed] her ability to functionally take part in the classroom without continued academic support, [s]peech, [c]ounseling, and [h]earing [e]ducation services" (Dist. Ex. 1 at p. 4).  The CSE considered general education and integrated co-teaching (ICT) services for the student but determined that neither would provide enough support and indicated that the 15:1 special class "would best meet [the student's] needs" (Dist. Exs. 1 at p. 25; 2 at p. 1).  As reviewed above, the May 2023 IEP identified the student's present levels of performance, management needs, and annual goals prior to making that determination (Dist. Ex. 1 at pp. 1-17).  Ultimately, the May 2023 CSE recommended among other things that the student attend a 15:1 special class for core academic subjects (id. at pp. 17-18). 

Turning to the rationale behind the May 2023 CSE's recommendation, the parent testified that, at the May 2023 CSE meeting, she "stated that a class with fifteen students and one teacher would be too big for [the student]" and in response she was told "there were no smaller classes available given [the student's] classification" (Parent Ex. J ¶4).[13]  However, the IHO "d[id] not credit the [p]arents' claim that the IEP was predetermined" (IHO Decision at p. 24).  More specifically, the IHO noted that the student's mother "testified that she was given the opportunity to fully participate in the meeting," that "[i]t [wa]s clear from the record that the Assistant Principal was also an active participant in the meeting," and that the IEP incorporated information from the nonpublic school progress reports (id.). The IHO also specifically noted that although the parent's concern regarding the overall class size was not memorialized in the May 2023 IEP, the IEP included management needs for smaller group instruction and that the student did not fit the statutory definition for placement in a smaller special class (id.).

In this instance, although the parent's statement that the CSE informed her there were no smaller classes available appears problematic, I agree with the IHO that it is against the overall weight of the evidence, which shows that the parents participated in the CSE meeting and the CSE believed a 15:1 special class met the student's needs.  As to predetermination, the consideration of possible recommendations for a student prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting (T.P., 554 F.3d at 253; A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8-*9 [S.D.N.Y. July 30, 2015]; see 34 CFR 300.501[b][1], [3]; 8 NYCRR 200.5[d][1], [2]).  The key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP" (T.P., 554 F.3d at 253; see D.D-S., 2011 WL 3919040, at *10-*11; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [E.D.N.Y. 2009], aff'd, 366 Fed. App'x 239 [2d Cir. Feb. 18, 2010]).  Districts may "'prepare reports and come with pre[-]formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions'" (DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18 [S.D.N.Y. Jan. 2, 2013] [alternation in the original], quoting M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 506 [S.D.N.Y. 2008]; see B.K. v. New York City Dept. of Educ., 12 F. Supp. 3d 343, 358-59 [E.D.N.Y. 2014] [holding that "active and meaningful" parent participation undermines a claim of predetermination]).

The hearing record demonstrates that elements of the May 2023 IEP were developed during the meeting, and that the CSE listened to the student's mother as the IEP notes parental concerns in "that math is a big area of concern," the parents requested removal of OT from the student's IEP, and the parents requested that the student "be more involved with children her age," as well as the nonpublic school assistant principal's description of the student and her concerns regarding the student (Dist. Ex. 1 at pp. 2, 3, 25).  The May 2023 IEP also noted that the CSE considered general education and ICT services, but rejected them "because they would not provide enough support" and a 15:1 special class "would best meet [the student's] needs" (id. at p. 25).    Contrary to the parents' contention, once a CSE determines that an appropriate class placement for the student is available within the district, the district is not obligated to continue considering additional placement options along the continuum of services (see B.K. v. New York City Dep't of Educ., 12 F. Supp. 3d 343, 359 [E.D.N.Y. 2014] [indicating that "once the CSE determined that a 6:1:1 placement was appropriate for [the student], it was under no obligation to consider more restrictive programs"]; E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *15 [E.D.N.Y. Aug. 19, 2013] [explaining that "under the law, once [the district] determined . . . the [LRE] in which [the student] could be educated, it was not obligated to consider a more restrictive environment"]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *7-*8 [S.D.N.Y. Mar. 19, 2013] [finding that "[o]nce the CSE determined that [the public school setting] would be appropriate for the [s]tudent, it had identified the [LRE] that could meet the [s]tudent's needs and did not need to inquire into more restrictive options"]).

Turning to the appropriateness of the recommendation, the parents' argue that the 15:1 special class would not have been sufficiently supportive for the student asserting that the student required a smaller class size.  In addition, the parents argue that the necessary inclusion of small group work, redirection when unfocused, positive reinforcement, and verbal and gestural prompts in the student's management needs indicated that the recommendation of a 15:1 special class for core academics was not appropriate.  More specifically, the parents assert that there was no explanation as to how these specific strategies to address the student's management needs could be provided to the student throughout the school day or at the rate the student required in a 15:1 special class.

The parents' arguments regarding class size focus on the information available to the CSE and the recommendations made in the available reports and connect to the parents' assertion as raised in the due process complaint notice that the May 2023 CSE did not adequately consider the nonpublic school progress report (Parent Ex. A at p. 2).  As noted by the parents, the teacher progress report included in the hearing record noted that the student was then in a class of seven students with one or two teachers and that the nonpublic school was able to customize the student's curriculum because of the small class size; further noting that the student "need[ed] to be in a small group setting with much individualized attention, repetition, reinforcement carefully sequenced skills, and specialized techniques" (Parent Ex. A at p. 2; Dist. Ex. 4 at p. 4, 5).[14] However, the progress report also included a more detailed description of the student's needs, which did not support a requirement that the student be placed in a smaller class.  For example, the report specifically noted that the student was "capable of answering straight forward questions with high levels of accuracy," had some analytical capabilities especially in oral comprehension, and had improved in her ability to answer open ended questions clearly; she was capable of understanding concepts, as long as more complex topics were broken down into simpler pieces, and she was able to comprehend and follow directions with reminders and when given multi-step instructions; additionally, the student was reported to ask and answer questions in class, generally expressed herself well, but could become flustered if she felt under pressure (Dist. Ex. 4 at pp. 2-3).  The report noted that the student interacted properly with teachers; she was well liked although her anxiety could impede her ability to enjoy social situations; and she was described as highly sensitive, but she responded to corrective feedback in a positive way and could remain focused throughout a lesson (id. at p. 3). She was also described as organized and capable, transitioning nicely between classes and rarely requiring assistance (id.).  Although the student was described as "highly motivated to progress," in math, and she could complete simple word problems and two-step word problems using all four basic operations, she required a lot of repetition and reinforcement of skills to maintain ability, acquired new skills slowly, and needed them broken down into small steps (id. at p. 2).  Overall, the specially designed instruction the student received was described as individualizing the curriculum and skills, using a lot of repetition and reinforcement of skills, setting the pace of lessons by the student's comprehension and ability, and providing a multisensory approach (id. at p. 4).

 

As discussed above, the May 2023 IEP described the resources and modifications needed to address the student's management needs (Dist. Ex. 1 at pp. 3-4).[15] Additionally, as the IHO determined, the IEP incorporated most of the management needs identified by the nonpublic school (IHO Decision at p. 24; Dist. Exs. 1 at pp. 3-4; 4 at p. 4).  In particular, recommended management needs included, among others, small group work; use of manipulatives, visual aids, and leveled texts; redirection; repetition; breaking down materials; prompts; positive reinforcement; and a multi-sensory approach (Dist. Ex. 1 at pp. 3-4).  These identified management needs correlate with the needs identified in the progress report (compare Dist. Ex. 1 at pp. 3-4, with Dist. Ex. 4 at pp. 3-4).  Additionally, although there are a number of management needs included in the May 2023 IEP, review of the management needs indicates that they could have been delivered in the recommended 15:1 special class.  For example, the IEP identified small group work to enhance peer to peer interactions and partner work to enhance peer to peer interaction and skill acquisition (Dist. Ex. 1 at p. 3), services one could expect to be delivered in a 15:1 special class as opposed to smaller special classes.  As noted above, State regulation provides that a 15:1 special class placement is designed to address students "whose special education needs consist primarily of the need for specialized instruction which can best be accomplished in a self-contained setting" (8 NYCRR 200.6[h][4]).  In contrast, State regulations contemplate a 12:1+1 special class for those students whose management needs interfere with the instructional process, an 8:1+1 special class for students whose management needs are determined to be intensive, and a 6:1+1 for students whose management needs are determined to be highly intensive (8 NYCRR 200.6[h][4][i]-[ii]).  Overall, review of the student's management needs, as identified in the May 2023 IEP, lends support to the May 2023 CSE's recommendation for placement of the student in a 15:1 special class (see,  [finding placement of a student in a 15:1 special class appropriate where CSE determined "'the student's academic performance, as well as his behavior and ability to interact with peers were at a higher level than that of a typical student in a 12:1+1 specialized school setting'"]).  Here, the hearing record does not contain any evidence that the student had behavioral concerns or that the student's management needs would have interfered with the instructional process such that additional support personnel would have been required.  Rather, the student's academic needs indicated that she required specialized instruction, which the CSE determined could be appropriately provided to her in a 15:1 special class.

Generally, district staff responsible for formulating the student's IEP in compliance with the requirements of the IDEA may be afforded some deference over the views of private experts (see Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 270 [1st Cir. 2010] [noting that "the underlying judgment" of those having primary responsibility for formulating a student's IEP "is given considerable weight"]; J.E. & C.E. v. Chappaqua Cent. Sch. Dist., 2016 WL 3636677, at *16 [S.D.N.Y. June 28, 2016], aff'd, 2017 WL 2569701 [2d Cir. June 14, 2017], citing E.S. v. Katonah-Lewisboro Sch. Dist., 742 F. Supp. 2d 417, 436 [S.D.N.Y. 2010] ["The mere fact that a separately hired expert has recommended different programming does nothing to change [the] deference to the district and its trained educators"], aff'd, 487 Fed. App'x 619 [2d Cir. July 6, 2012]; Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, at *6 [N.D.N.Y. June 19, 2009] [explaining that deference is frequently given to the school district over the opinion of outside experts]).  Moreover, in addition to considering what supports and services the student needed in order to receive educational benefits, the district was mandated to consider placing the student with her nondisabled peers in light of the IDEA's LRE requirements. The student's skillsets and level of functioning, along with the CSE's recommendation for weekly counseling services, hearing education, and speech-language services as well as a variety of supports, strategies and goals, convince me that the student would have been able to receive meaningful educational benefits in a 15:1 special class and when placed with nondisabled peers during lunch and gym class and that removal from the general education setting altogether to a special class in a nonpublic school would not have been consistent with LRE aspects of the IDEA.

Ultimately, the parents' preference for a "smaller class size" illustrates a common predicament: that often what is considered "small" in terms of class size is in the eye of the beholder (M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 335 [E.D.N.Y. 2012] [holding "[t]hat the size of the class in which [the student] was offered a placement was larger than his parents desired does not mean that the placement was not reasonably calculated to provide educational benefits"], aff'd, 725 F.3d 131 [2d Cir. 2013]), but a parents' decision to provide a smaller classroom ratio is not in and of itself conclusive evidence of the question of whether a public placement provides appropriate services to meet a student's needs (see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015]).  The parents would no doubt prefer a smaller class size for the student, however, districts are not required to replicate the identical setting used in private schools (see, e.g., M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *28 [S.D.N.Y. Sept. 28, 2018]; Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, at *6 [N.D.N.Y. June 19, 2009]; Watson, 325 F. Supp. 2d at 145).

Based on the above, I find that the hearing record supports the district's recommendation to place the student in a 15:1 special class for core academic classes, with the additional supports of individual counseling services, individual hearing education services, and individual speech-language therapy services.  Accordingly, I will not disturb the IHO's finding that the district offered the student a FAPE for the 2023-24 school year in the LRE.

4.. Assigned Public School Site and School Tour

The IHO held that "although it may have been a procedural violation for the [p]roposed [p]lacement not to return the [p]arent's phone call requesting a tour until after the start of the school year, [she] d[id] not find that resulted in a denial of a FAPE" (IHO Decision at p. 24).  The parents claim that they were denied meaningful participation in the development of the student's IEP because the district did not send them a copy of the May 2023 IEP and a prior written notice until August 2023 and because the parents were not provided the opportunity to tour the recommended assigned school site until November 2023, after the start of the school year.  The district argues that the parents toured the same school the prior year and that "[a]ny possibility [p]arent[s] would find the recommended placement suitable or that the [s]tudent would attend a public-school classroom willusory" (Answer ¶ 17).

Initially, regarding the timing of the August 2023 prior written notice and the delivery of the May 2023 IEP to the parents in August 2023, to meet its legal obligations, a district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability (34 CFR 300.323 [a]; 8 NYCRR 200.4 [e][1][ii]; Cerra, 427 F.3d at 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 [S.D.N.Y. Aug. 23, 3012], aff'd, 530 Fed. App'x 81, 2013 WL 3814669 [2d Cir. July 24, 2013]; B.P. v. New York City Dep't of Educ., 841 F. Supp.2d 605, 614 [E.D.N.Y. 2012]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [stating that "[a]n education department's delay does not violate the IDEA so long as the department 'still ha[s] time to find an appropriate placement . . . for the beginning of the school year in September'"], quoting Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *8 n.26 [S.D.N.Y. Nov. 20, 2007]).  Additionally, a must district provide parents of a student with a disability with prior written notice "a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the student or the provision of a [FAPE] to the student" (34 CFR 300.503[a]; 8 NYCRR 200.1[oo]; 200.5[a][1).  Pursuant to State and federal regulation prior written notice must include a description of the action proposed or refused by the district; an explanation of why the district proposed or refused the action; a description of the other options that the CSE considered and the reasons why those options were rejected; a description of each evaluation procedure, assessment, record, or report the CSE used as a basis for the proposed or refused action; and a description of the other factors relevant to the CSE's proposal or refusal (34 CFR 300.503[b]; 8 NYCRR 200.5[a][3]).

With respect to notification of the assigned public school site and the parents attempts to schedule a tour of the school, although not explicitly stated in federal or State regulation, implicit in a district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP (see T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 [S.D.N.Y. Mar. 30, 2016] [noting that "a parent must necessarily receive some form of notice of the school placement by the start of the school year"]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [finding that a district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year]).  While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless follows that it must be shared with the parent before the student's IEP may be implemented.

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

On the other hand, there is district court authority indicating that a parent has a right to obtain information about an assigned public school site (see H.L. v. New York City Dep't of Educ., 2019 WL 181307, at *9 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 2015 WL 5564446, at *11-*18 [S.D.N.Y. Sept. 21, 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 2014 WL 2207997, at *14-*16 [S.D.N.Y. May 27, 2014] [holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it]). The student's mother testified that, upon receipt of the August 15, 2023 school location letter, which the mother noted recommended "the same school recommended for [the student's] 2022-2023 school year," she "attempted to contact the school to schedule a time to visit the school to determine its appropriateness for [the student's] 2023-2024 school year" and that her "attempts included leaving a voicemail providing [her] contact information and stating that [her] daughter had been recommended to attend the school and that [she] would like to schedule a tour to learn about the program [the student] would receive" (Parent Ex. J ¶ 5; see Dist. Ex. 3).  On August 22, 2023, the parents sent a letter to the district, which indicated, in part, that the parents had not yet received a response from the assigned school regarding their request for a tour, but that they intended to schedule a tour or a phone conference once school opened in September 2023 (Parent Ex. B).  The student's mother testified that she "was able to tour [the assigned school] in the fall of 2023 with school personnel" and that "[b]ased on [her] observations of the school and the information [she] gathered during [her] visit of the school, [she and her] husband… deemed the school an inappropriate educational environment for [the student's] 2023-2024 school year" (id. ¶ 7). In a letter to the district, dated November 7, 2023, the parents noted their concerns regarding the assigned public school, indicating that the school was "extremely loud and distracting" and the environment would have been overwhelming and impossible for [the student] to navigate," that students were grouped based on credits rather than age level or functioning, and further indicating that the parents were "prevented from viewing the therapy rooms and determining their appropriateness for [the student] (id.).[17]

On appeal, the parents do not raise any specific concerns regarding the assigned public school site.  Instead, the parents contend that the district violated the parents' ability to participate in the decision-making process by not allowing them to visit the assigned school prior to the start of the school year.  In this instance, the parents' inability to schedule a tour of the school until after the start of the school year does not constitute a procedural violation that rose to the level of a denial of a FAPE.  As discussed above, while a general entitlement to visit an assigned school is not supported by the relevant legal authority, there is some authority that a district's failure to accommodate a parents' inquiries concerning an assigned school could, under certain circumstances, constitute a procedural violation that could either contribute to a finding that FAPE was denied to a student or in itself rise to the level of a FAPE denial.  Such circumstances, however, are not present here.  While the evidence in the hearing record supports a finding that there were some minor difficulties in arranging for a visit to the assigned school, ultimately, the parents toured the school.  Additionally, the hearing record indicates that the parents had visited the assigned public school, during the prior school year, and the parents have not identified, on appeal, any specific information that they were unable to obtain regarding the assigned public school and, instead, generally assert that the scheduling of the tour after the start of the school year inhibited their ability to participate in the process.  Accordingly, the parents' argument that the IHO should have found that the district denied the student a FAPE on the ground that the parents were not able to visit the assigned school until the fall of 2023 must fail.

VII. Conclusion

Having determined that the evidence in the hearing record establishes that the IHO properly concluded that the district offered the student a FAPE in the LRE for the 2023-24 school year, the necessary inquiry is at an end and there is no need to reach the issue of whether Tiferes Miriam was an appropriate unilateral placement for the student or whether equitable considerations favor the parents' request for relief (Burlington, 471 U.S. at 370).

THE APPEAL IS DISMISSED.