I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied in part her request for compensatory education for her son related to the 2022-23, 2023-24, and 2024-25 school years.  Respondent (the district) cross-appeals from the IHO's decision, asserting that the parent's claims were precluded.  The appeal must be sustained in part.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  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

During the time period at issue in this appeal, the student received diagnoses of autism spectrum disorder with accompanying intellectual and language impairment, Level 2, and attention deficit hyperactivity disorder; according to the parent, the student has "always displayed very aggressive behavior" (Parent Ex. X ¶¶ 2, 6-7; Dist. Ex. 10 at p. 3).  The student arrived with his family in the United States at the age of five, was initially found eligible for special education as a student with autism, and thereafter attended a district public school where he received special education programming, including during the school years at issue in this matter (see Parent Exs. G at p. 1; X ¶¶ 3-5, 15, 24; Dist. Exs. 4 at p. 1; 10 at p. 1).

On November 14, 2022, during the 2022-23 school year (fifth grade), the parent emailed the district detailing her concerns with the student's behavior and requesting applied behavioral analysis (ABA) services by a board-certified behavioral analyst (BCBA) in school and at home (Parent Ex. H at pp. 1-2; see Dist. Ex. 4 at p. 1).  The district responded, informing the parent that the student's then-current IEP was "open . . .  for reevaluating" and, further, that a CSE meeting was scheduled for December 8, 2022 (Parent Exs. H at p. 1; I at pp. 3-4).

On December 8, 2022, a CSE convened, found that the student continued to be eligible for special education as a student with autism, and developed an IEP with a projected implementation date of December 22, 2022 (Dist. Ex. 1).[1]  The CSE recommended the student attend a 12-month school year program in an 8:1+1 special class in a district specialized school (id. at pp. 36, 38, 43).  The CSE further recommended the student receive one 30-minute session per week of group counseling services; one 30-minute session per week of individual occupational therapy (OT); one 30-minute session per week of group OT; two 30-minute sessions per week of individual physical therapy (PT); two 30-minute sessions per week of individual speech-language therapy; and two 30-minute sessions per week of group speech-language therapy (id. at pp. 36-37).  The CSE also recommended that the parent receive one 30-minute session per month of parent counseling and training (id. at p. 37).  In addition, the CSE recommended that the student be provided with the support of a behavior management/support plan throughout the school day, a full-time individual behavior support paraprofessional, and access to a dynamic speech generating device (SGD) to assist the student with communication in school and at home (id. at pp. 15, 37).  Further, the CSE determined that the student required compensatory services "to close gaps in expected progress toward IEP goals and to address skill loss experienced during blended and remote learning" that occurred during school closures related to the COVID-19 pandemic (id. at p. 39).  The recommended compensatory services consisted of five 60-minute sessions per week of special education support services (SETSS) in the home setting (id. at pp. 39-40).[2]

In an email to the district dated January 16, 2023, the parent, through her lay advocate, indicated that the IEP failed to address her request for ABA or SETSS to address the student's behavior needs, and that the district had still not identified a provider to fulfill the compensatory SETSS recommended in the IEP (Parent Ex. L at p. 2).  The parent further notified the district that she had identified a private SETSS provider at a specified rate (id.).  The district responded that, if the parent wanted "an enhanced rate," she would have to pursue due process (id. at p. 1).

On March 17, 2023, the parent filed a State complaint with the New York State Education Department's (SED's) Regional Office for Special Education Quality Assurance (SEQA), alleging multiple procedural violations against the district, that resulted in a decision dated May 12, 2023 (Parent Ex. M).  In pertinent part, regional office for SEQA concluded that both the December 2022 IEP and the resulting prior written notice, dated December 15, 2022, failed to include any information regarding the parent's requests for ABA, SETSS at home for behavioral support, or a reevaluation to address the student's behavior (id. at pp. 3-4).  In addition, SEQA found that the district failed to provide the student with the recommended SETSS from December 22, 2022 to March 17, 2023 and failed to respond to the parent's request made during the December 8, 2022 IEP meeting for parent counseling and training by a Board Certified Behavior Analyst (BCBA) in order to address the student's aggressive behaviors (id. at pp. 10, 14).  Finally, SEQA concluded that the district failed to provide the parent with parent counseling and training during the 2022-23 school year with the frequency recommended in the December 2022 IEP and the prior IEP developed on December 8, 2021 (id. at p. 16-17).  As a corrective action, SEQA directed the district, among other things, to provide SED with evidence by June 16, 2023, that a CSE meeting had been conducted to consider the impact, if any, of the failure of the district to provide the IEP-recommended SETSS and parent counseling and training services during the 2022-23 school year, and "recommend any compensatory services as needed as a result" (id. at p. 23).

On September 5, 2023, the student presented for an independent neurodevelopmental evaluation (neuropsychological evaluation) funded by the district to assess his then-current functioning and related needs (Dist. Ex. 10).[3]  The neuropsychological evaluation report, prepared by a licensed clinical psychologist (evaluator), reflected that the student was not able to participate in a standardized assessment due to his high level of behavioral dysregulation (id. at p. 1).  The evaluator later conducted a school observation on December 7, 2023 (id.).  Based on the 45-minute school observation, test data, and a review of records, the independent evaluator, in pertinent part, recommended the student receive 20 hours of 1:1 ABA SETSS per week provided by an instructor appropriately trained and certified in providing such services and monitored by a BCBA, with a portion of the program delivered in the home "for appropriate carry-over of skills (generalization), continuity of care, and to reinforce teaching to prevent regression" (id. at p. 3).  Further, she recommended that a portion of the ABA SETSS be used for parent education and instruction at home (id.).

On February 28, 2024 and/or April 3, 2024, a CSE convened, considered the independent neuropsychological evaluation, discussed " the impact of the [district's] failure to provide SETSS services and parent counseling and training during the 2022-23 school year," and developed an IEP (February 2024 IEP) (Dist. Ex. 7 at p. 3).[4]  The CSE developed an IEP for the student with a projected implementation date of March 13, 2024 (see id. at pp. 28-29).[5]  The CSE declined to recommend the twenty hours per week of 1:1 ABA SETSS proposed in the neuropsychological evaluation (id. at p. 40).  The CSE concluded that the student had been doing well at school and the physical aggression he displayed at home had very rarely been observed at school (id.).  Moreover, according to the IEP, the student had a behavior plan followed at school as well as a support paraprofessional (id.).  The CSE recommended five hours per week of SETSS to provide the student with the support that he needed at home to set up structures and routines to decrease his behavior, together with two hours of indirect SETSS to be provided for training with the parent/family for the 2023-24 school year (id. at pp. 29, 40).  Further, the CSE changed the mandate of parent counseling and training from one 30-minute session per month to four 60-minute workshops per year (compare Dist. Ex. 7 at p. 29, with Dist. Ex. 1 at p. 37).  Otherwise, the CSE generally continued the programming recommendations from the December 2022 IEP but no longer recommended compensatory SETSS related to the student's loss of skill during remote learning related to the COVID-19 pandemic (compare Dist. Ex. 7 at pp. 28-31, 35, with Dist. Ex. 1 at pp. 35-39, 43).

On June 24 and 25, 2024, the district conducted an updated functional behavioral assessment (FBA) and developed a behavioral intervention plan (BIP) for the student (Parent Ex. T; Dist. Ex. 13).[6]

On July 18, 2024, the parent filed a second State complaint with the SEQA regional office that alleged multiple procedural violations against the district (Parent Ex. V).  A decision was issued on September 13, 2024 (id.).  SEQA concluded that the district failed to provide the student with the direct and indirect SETSS recommended in the February 2024 IEP from its March 13, 2024 implementation date to the date of the decision (id. at p. 3).  SEQA further concluded that, during the 2023-24 school year, the district failed to provide the student with the compensatory SETSS as recommended in the student's December 2022 IEP (id. at p. 5).  The district was directed to provide the SED with evidence by October 30, 2024 that a CSE meeting had reconvened to consider, "the impact, if any, of the [district's] failure to provide the [s]tudent's IEP recommended in home direct and indirect SETSS from February 28, 2024 to present, and recommend any compensatory services as a result" (id. at 8).

A. Due Process Complaint Notice

In a due process complaint notice, dated October 7, 2024, the parent, through a lay advocate, alleged, in pertinent part, that the district failed to provide the student a FAPE during the 2022-23, 2023-24, and 2024-25 school years by failing to recommend to the student for an ABA program to address his severe maladaptive behaviors; failing to implement the student's recommended compensatory services of five hours per week of SETSS from December 2022 through February 2024; failing to implement the five hours of direct SETSS and two hours of indirect SETSS per week that were recommended in the February 2024 IEP; failing to recommend an evidence-based methodology for the SETSS, specifically ABA, as recommended in the district-funded independent neuropsychological evaluation; and failing to conduct a new FBA and develop a new BIP (Parent Ex. W at pp. 2, 6-8).  The parent also alleged that the FBA conducted in June 2024 was flawed and resulted in an inadequate BIP (id. at p. 6).

As relief, the parent sought compensatory education and an independent FBA and BIP (Parent Ex. W at pp. 7-8).  In particular, the parent sought 345 hours of compensatory BCBA-led ABA SETSS at market rate to make-up for SETSS mandated on the student's IEPs but not implemented, including 260 hours for the period of December 22, 2022 to February 28, 2024 and 85 hours for the period of February 28, 2024 through June 30, 2024 (id. at pp. 7-8).  Next, the parent sought 34 hours of compensatory parent counseling and training by a BCBA or LBA for services not received during the 17 weeks from February 28, 2024 through June 30, 2024 (id. at p. 8).  Specific to the 2024-25 school year, the parent requested 840 hours of direct ABA SETSS led by a BCBA and/or licensed behavioral analyst (LBA) at a "fair market rate" of no less than $200 per hour, representing ten hours per week of school-based and ten hours per week of home-based services for the 42-week extended school year (id. at p. 7).  In addition, the parent sought 84 hours of indirect BCBA and/or LBA services at "fair market rate" of no less than $200 per hour for the 2024-25 school year, representing two hours per week for the 42-week extended school year (id).  Finally, the parent sought funding of an independent FBA at the cost of $2,300 or the "fair market rate" along with the development of an independent BIP at the cost of $1,750 or the "fair market rate" (id. at p. 8).

The district submitted a response to the due process complaint notice denying the material allegations contained therein and asserting multiple affirmative defenses (see Due Process Response).

B. Impartial Hearing Officer Decision

The matter was assigned to an IHO with the Office of Administrative Trials and Hearings (OATH).  Following a prehearing conference on November 13, 2024,[7] an impartial hearing convened before the IHO on December 17, 2024 (Tr. pp. 1-58).  During the impartial hearing, the district conceded that it had not offered the student a FAPE for the school years in question but contested the relief sought by the parent (Tr. p. 33).

In a decision dated January 13, 2025, the IHO noted the district's concession and, further, found that the district failed to provide the student a FAPE during the 2021-22, 2022-23, and 2023-24 school years due to its failure to implement some of the services recommended in the December 2022 and February 2024 IEPs (IHO Decision at p. 6).  However, with respect to the February 2024 IEP, the IHO found the data that the CSE team possessed supported the recommendation for five hours per week of SETSS at home in addition to two hours of indirect SETSS (id.).  The IHO noted the parent's testimony that the CSE considered the neuropsychological evaluation, and the recommendations set forth therein, but concluded that the CSE was not required to adopt the recommendations (id.).  The IHO further noted the CSE's determination that the requested 20 hours of ABA SETSS were not appropriate as the student was able to make progress with a less intense schedule with the support of a BIP and a behavior support paraprofessional (id.).  In short, the IHO concluded that the district "offered a cogent and responsive explanation for [its] decisions in creating [the February 2024] IEP" (id.).

Regarding the parent's request for 840 hours of direct BCBA and/or LBA led ABA SETSS, in addition to finding that the February 2024 IEP was appropriate, the IHO also concluded that the evaluator who conducted the September 2023 neuropsychological evaluation did not explain in her report how she calculated her recommendation of twenty hours per week of 1:1 ABA SETSS or why 5 hours per week of SETSS, as recommended in the February 2024 IEP, was not sufficient in light of the student's progress (IHO Decision at p. 6).  Based on the foregoing, the IHO denied the parent's request for 840 hours of direct BCBA- and/or LBA-led ABA SETSS (id.).

As to the parent's additional requested relief, the IHO concluded that the district did not identify any appropriate compensatory education to remedy its denial of a FAPE to the student during the "2022-2023; 2023-2023-2024; 2024-2025 school years" [sic] (IHO Decision at pp. 7-8).  The IHO further found that the hearing record supported an award of compensatory education to make up for SETSS and parent counseling and training sessions not provided (id.).  Accordingly, the IHO ordered the district to provide compensatory relief by a private provider of the parent's choosing to include: (a) five hours per week of compensatory SETSS, totaling 260 hours, for SETSS not implemented from December 22, 2022 to February 28, 2024, to be funded at a fair market rate; (b) five hours per week of direct SETSS for those not provided to the student between March 13, 2024 (the implementation date of the February 2024 IEP) and June 30, 2024, to be funded at a fair market rate; and (c) two hours per week of indirect SETSS for the 12-month 2024-25 school year, at a rate not to exceed $200 per hours (id. at p. 9).[8]^, [9]  The IHO also awarded one hour every three months (for a total of four hours for one school year) of compensatory parent counseling and training to make-up for those services not provided from March 13, 2024 to the end of the 12-month 2024-25 school year (id.).   The IHO held that the bank of compensatory hours for the above would expire two years from the date of her decision (id.).

Finally, the IHO denied the parent's request for an updated FBA and BIP (IHO Decision at p. 8).  The IHO acknowledged the parent's testimony that on May 30, 2024 she had requested an updated FBA but that the resulting June 2024 FBA was based on flawed data collection and the resulting BIP was, therefore, also flawed (id.).  However, the IHO found that the June 2024 FBA discussed the student's problem behaviors, the triggers of those problems, and the interventions used in the past (id.; see Parent Ex. T).  Likewise, the IHO determined that the June 2024 BIP discussed the student's baseline measure of the problem behaviors, intervention strategies, and included a schedule to measure the effectiveness of interventions (IHO Decision at p. 8; District Ex. 13).  Based on the foregoing, the IHO found that the FBA and BIP were appropriate and a newly updated FBA/BIP was not necessary (IHO Decision at p. 8).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in that the awarded relief did not remedy the denial of a FAPE to the student during the 2022-23, 2023-24, and 2024-25 school years.  The parent also alleges that the IHO erred in excluding evidence; in ruling in a biased manner in favor of the district; and in phrasing the relief ordered in a manner that could cause delay or a lack of implementation.

More specifically, the parent asserts that the student had a history of maladaptive behaviors warranting ABA methodology as early as the December 2022 CSE meeting and that the IHO erred in finding the February 2024 CSE's recommendation appropriate, arguing that the IHO was incorrect in finding that the student showed progress and, further, that the district did not present any witness to defend or otherwise explain the CSE's recommendation.  The parent further claims that the IHO failed to address the parent's request for the compensatory education to be ordered specifically as ABA.  With respect to the hours of compensatory education service awarded, the parent asserts that the IHO failed to award any compensatory direct SETSS to remedy the denial of a FAPE to the student during the 2024-25 school year or any compensatory parent counseling and training owed to the parent arising from the December 2022 IEP.  The parent also reiterates her disagreement with the June 2024 FBA conducted by the district.  As relief, the parent requests that the SRO award the parent's "requested relief as requested in the parent['s] [due process complaint notice]."  The parent submits two proposed exhibits as additional evidence.

In an answer with cross-appeal, the district first asserts that the parent's claims should be dismissed as to the 2022-23 and 2023-24 school years because the parent made the same allegations regarding the district's failure to deliver services in her two State complaints and received relief relating thereto.  The district maintains that the parent's State complaints functioned as an election of remedies and that the parent is now barred from seeking a different remedy through the impartial hearing process, citing to the doctrines of res judicata and/or collateral estoppel.  The district also argues that the parent's claims "in essence" amounted to an attempt "to enforce" the State complaint decisions and that neither IHOs nor SROs have enforcement authority.  Specific to the 2024-25 school year, the district asserts that the parent's claims should be dismissed as outside the scope of the impartial hearing since the parent did not dispute the operative IEP for the 2024-25 school year, which the district claims was developed at a CSE meeting held on June 26, 2024.[10]  In the alternative, the district argues to uphold the IHO's decision in its entirety but asserts that, if modified by the SRO, any award of compensatory education for the 2024-25 school year should be limited to those services recommended in IEPs purportedly prepared for the student in June and October 2024.  As additional evidence, the district submits five proposed exhibits for consideration by the SRO.

The parent submits an answer to the district's cross-appeal responding to the district's allegations and asserting that the additional evidence offered by the district should not be considered.  The parent submits an additional document with her answer to the district's cross-appeal.  The district submits a reply to the answer to cross-appeal.

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]).[11]

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

VI. Discussion

A. Preliminary Matters

1. Additional Evidence

With her request for review and her answer to the district's cross-appeal the parent submits three proposed exhibits.  The district submits with its answer and cross-appeal five proposed exhibits.  Both parties request that their respective additional evidence be considered on appeal.  Generally, documentary evidence not presented at an impartial hearing is considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; Landsman v. Banks, 2024 WL 3605970, at *3 [S.D.N.Y. July 31, 2024] [finding a plaintiff's "inexplicable failure to submit this evidence during the IHO hearing barred her from taking another bite at the apple"]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]).

The parent offers additional evidence with her request for review in order to challenge an evidentiary ruling made by the IHO, arguing that, during the impartial hearing, the IHO failed to rule on the admissibility of a document marked as parent exhibit A, a psychoeducational evaluation of the student conducted on March 5, 2018.  Here, the district had objected to the parent's proposed exhibit A and other exhibits "on the basis of relevance," asserting that the "documents pertain[ed] to school years and matters" beyond the scope of the impartial hearing (IHO Ex. II at p. 3).  The parent, through her advocate, responded that parent exhibit A was "for historical purposes only" and "establishe[d] the student[']s need for special education services and the parental concerns" (id. at p. 1).  Contrary to the parent's contention on appeal, a review of the transcript reflects that the IHO ruled on the admissibility of the exhibit (Tr. pp. 31-32).  In particular, the IHO noted the district objected to the parent's proposed exhibits A through G, M, and V; that the parent responded; that the parent withdrew duplicative exhibits; and that "[a]fter reviewing the arguments of the parties," she would admit parent exhibits B through I, L, and P through BB (Tr. pp. 31-32).  On appeal, the parent does not allege any substantive error in the IHO's evidentiary ruling but goes on to cite the document to demonstrate the student's history of "maladaptive behaviors."  Ultimately, however, the CSEs at issue in this matter considered more recent evaluative information about the student to develop the student's IEPs, as summarized below, and I do not find that the IHO abused her discretion in deciding not admitting the document.[12]  Accordingly, I decline to consider the parent's additional evidence.

The proposed exhibits submitted with the district's answer and cross-appeal consist of four IEPs and an FBA of the student.  The June 2024 FBA is already in evidence (Parent Ex. T).  The other documentation submitted by the district as additional evidence pre-dates the December 17, 2024 hearing date, as well as the issuance of the IHO's January 13, 2025 decision and was therefore available to the parties during the impartial hearing (see Tr. p. 20; IHO Decision at p. 9).  Indeed, the district's failure to present this evidence at the time of the impartial hearing is "inexplicable" (Landsman, 2024 WL 3605970, at 3).  Accordingly, I do not accept the district's additional evidence into the hearing record.  The document submitted with the parent's answer to the district's cross-appeal was also available at the time of the impartial hearing and, because the district's additional evidence is not considered, the parent's document is also unnecessary as it was offered to respond to the district's submission.[13]

2. Effect of State Complaints

Turning to the district's arguments regarding the preclusive effect of the determinations made with respect to the parent's State complaints, under the IDEA, its implementing regulations, and State regulations, parents have two avenues available to resolve disputes with a school district regarding the education of a student with a disability: the impartial due process hearing process and the State complaint resolution process.  A parent or a district may initiate an impartial hearing 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]).  Under the State complaint process, a parent may file a complaint against a district for failure to comply with the terms of an IEP, violation of the IDEA and its regulations, or failure to implement an IHO's due process decision (8 NYCRR 200.5[l]; see 34 CFR 300.151-300.153).  In the event a State complaint is initiated that is also the subject of an impartial hearing or contains multiple issues of which one or more are part of the impartial hearing, the "State must set aside any part of the complaint that is addressed in the due process hearing until the conclusion of the hearing" (34 CFR 300.152[c]; 8 NYCRR 200.5[l][2][vii]).  Where an issue raised in a State complaint has previously been decided in an impartial hearing involving the same parties, the State must notify the parent bringing the complaint that the impartial hearing decision is binding (34 CFR 300.152[c][2]; 8 NYCRR 200.5[l][2][viii]).  Lastly, and particularly germane to the instant case, State regulation specifies that "[n]othing in this section shall abrogate the right of an individual student with a disability to due process under Education Law section 4404, including the right to initiate an impartial hearing to address issues previously raised in a [State] complaint decided pursuant to this section" (8 NYCRR 200.5[l][2][viii][3]).  Simply put, raising or failing to raise an issue in a State complaint does not have preclusive effect on issues that may be raised in a subsequent impartial hearing.  The United States Department of Education's Office of Special Education Programs (OSEP) has reached a similar conclusion.  OSEP has opined that "a party aggrieved by [a State educational agency] decision following a complaint investigation is permitted to pursue due process on the same issues so long as those issues concern the identification, evaluation, placement, or the provision of FAPE" (Letter to Lieberman, 23 IDELR 351 [OSEP 1995]).

Accordingly, the SEQA decisions resulting from the two complaints of the parent do not preclude her right to pursue an impartial hearing nor do they constitute an election of remedies.

Likewise, the parent's claims are not barred by the res judicata or collateral estoppel.  It is well-established that the doctrine of res judicata and the related doctrine of collateral estoppel apply to administrative proceedings when the agency acts in a judicial capacity (K.C. v. Chappaqua Cent. Sch. Dist., 2017 WL 2417019, at *6 [S.D.N.Y. June 2, 2017]; K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012]; Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp. 2d 529, 554-55 [S.D.N.Y. 2010]; Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450, at *6 [N.D.N.Y. Dec. 19. 2006]).  The doctrine of res judicata (or claim preclusion) "precludes parties from relitigating issues that were or could have been raised in a prior proceeding" (K.B., 2012 WL 234392, at *4; see Perez v. Danbury Hosp., 347 F.3d 419, 426 [2d Cir. 2003]; Murphy v. Gallagher, 761 F.2d 878, 879 [2d Cir. 1985]; Grenon, 2006 WL 3751450, at *6).  Res judicata applies when: (1) the prior proceeding involved an adjudication on the merits; (2) the prior proceeding involved the same parties or those in privity with the parties; and (3) the claims alleged in the subsequent action were, or could have been, raised in the prior proceeding (see K.B., 2012 WL 234392, at *4; Grenon, 2006 WL 3751450, at *6).  The doctrine of collateral estoppel (or issue preclusion) "precludes parties from litigating a legal or factual issue already decided in an earlier proceeding" (Grenon, 2006 WL 3751450, at *6 [internal quotations omitted]).  To establish that a claim is collaterally estopped, a party must show that

(1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits

(Grenon, 2006 WL 3751450, at *6 [internal quotations omitted]; see Perez, 347 F.3d at 426; Boguslavsky v. Kaplan, 159 F.3d 715, 720 [2d Cir. 1998]).

Given the lack of the preclusive effect of decisions arising from SED complaints—an investigatory process that does not incorporate the more formal procedures and litigation that occurs in an impartial hearing—neither res judicata nor collateral estoppel applies to preclude the parent's claims (see Lucht v. Molalla River Sch. Dist., 57 F. Supp. 2d 1060, 1065 [D. Or. 1999] [holding that, based upon Letter to Lieberman, res judicata did not attach in an impartial hearing following a State complaint process concerning the same student]).  Accordingly, the district's contention that the doctrine of res judicata precludes the parent from bringing claims concerning the 2022-23 and 2023-24 school years in the present matter is without merit.[14]

3. Scope of Review

The IHO found that the district denied the student a FAPE for the 2022-23, 2023-24, and 2024-25 school years by failing to implement the student's mandated services (see IHO Decision at p. 6).  The district has not appealed this determination and, therefore, it has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see Bd. of Educ. of the Harrison Cent. Sch. Dist. v. C.S., 2024 WL 4252499, at *12-*15 [S.D.N.Y. Sept. 20, 2024]; M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

The IHO did not explicitly rule on the parent's claim that the December 2022 IEP was inappropriate due to the lack of a recommendation for ABA.  On appeal, the parent alleges that the compensatory education awarded by the IHO was inadequate to remedy the denial of a FAPE and goes on the describe the student's behavioral needs, need for ABA, and the December 2022 CSE's failure to consider the parent's request therefor (see Req. for Rev. at pp. 4-5).  Further, the parent challenges the IHO's conclusion that the February 2024 IEP was appropriate for the student notwithstanding that the CSE did not adopt the recommendations from the September 2023 neuropsychological evaluation (see IHO Decision at p. 6; Req. for Rev. at p. 6).  Although the parent has not stated the issues on appeal with perfect clarity, in order to inform the analysis of the compensatory education award, it is necessary to first address the IEP design claims to which the parent's appeal alludes.

Moreover, while the district's cross-appeal challenges the IHO's decision on procedural grounds discussed above and the parent's appeal seeks more relief than the IHO awarded, the district does not directly challenge the IHO's award of 260 hours of compensatory SETSS to make up for services not implemented from December 22, 2022 to February 28, 2024; five hours per week of compensatory SETSS and one hour every three months of compensatory parent counseling and training to make up for services not implemented between March 13, 2024 and June 30, 2024; and two hours per week of compensatory indirect SETSS for the 12-month 2024-25 school year along with one hour of parent counseling and training every three months until the end of the 2024-25 school year or until the district began implementing the service (see IHO Decision at p. 9).  Nor does either party appeal the conditions placed on the compensatory award, including that they be delivered by private providers of the parent's choosing; that they be funded "at fair market rate as implemented by the Implementation Unit within the last six months of this decision" for the compensatory SETSS or "at a rate not to exceed $200.00 per hour" for the indirect SETSS; that the district directly pay the provider(s) within 35 days of submission of proof of delivery; and that they will expire within two years (id. at p. 8).[15]  Accordingly, the IHO's award of compensatory education will not be reduced but will be modified as discussed below.

I now turn to the IEP design claims.

B. FAPE

1. Methodology

Underlying the parent's claims that the December 2022 and February 2024 CSE developed inappropriate IEPs for the student is that the CSEs failed to recommend ABA methodology for the student.  Likewise, the parent seeks compensatory education specifically using ABA methodology.  Accordingly, it is necessary to consider a school district's obligation to recommend a particular methodology on a student's IEP.

Generally, an IEP is not required to specify the methodologies used with a student and the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher's discretion—absent evidence that a specific methodology is necessary (Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 [2d Cir. Oct. 29, 2014]; A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 [2d Cir. July 29, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 192-94; M.H., 685 F.3d at 257).  As long as any methodologies referenced in a student's IEP are "appropriate to the [student's] needs," the omission of a particular methodology is not necessarily a procedural violation (R.B., 589 Fed. App'x at 576 [upholding an IEP when there was no evidence that the student "could not make progress with another methodology"], citing 34 CFR 300.39[a][3] and R.E., 694 F.3d at 192-94).  Indeed, a CSE should take care to avoid restricting school district teachers and providers to using only the specific methodologies listed in a student's IEP unless the CSE believes such a restriction is necessary in order to provide the student a FAPE.

However, where the use of a specific methodology is required for a student to receive an educational benefit, the student's IEP should so indicate (see, e.g., R.E., 694 F.3d at 194 [finding an IEP substantively inadequate where there was "clear consensus" that a student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee" of the use of this methodology]).  If "the reports and evaluative materials" before the CSE recommend a particular methodology, there are no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member (i.e. school psychologist) to rely on a broader approach by leaving the methodological question to the discretion of the teacher implementing the IEP (A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017]).  The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate the "clear consensus" (R.E., 694 F.3d at 194).

2. December 2022 IEP

In an email to the district dated November 14, 2022, the parent requested ABA services for the student (Parent Ex. H at p. 2).  Therein, the parent requested ABA instruction by a BCBA at school and at home following information provided during home services through the Office of People with Developmental Disabilities (OPWDD) (id. at p. 2).  The parent requested re-evaluation of the student and a CSE meeting as she described that the student "continue[d] to display violent behavior at home consisting of pushing, hitting, kicking, punching, and pulling hair" towards the parent and others (id.).  The parent stated the student's behaviors had worsened over the last year as the student grew older and bigger (id.).  The parent reported the student launched at her when he wanted something or became frustrated and believed these behaviors occurred at school as well (id.).  In response, the school psychologist confirmed receipt of the parent's request for ABA services and advised the parent that the student's triennial review was scheduled for December 8, 2022 and the team would discuss the parent's request at that meeting (Parent Ex. I at pp. 3-4).  The school psychologist also reminded the parent that she had previously indicated she would not be attending the December meeting, and the meeting could be rescheduled to a different time if "that date and time d[id] not work for [her]" (id.).

The December 15, 2022 prior written notice reflects that the December 2022 CSE considered a November 2022 classroom observation report (Dist. Ex. 2 at p. 2).[16]  For the November 2022 classroom observation, the district school psychologist observed the student in his district 8:1+1 special class in which he was provided with the support of a behavior support paraprofessional (Dist. Ex. 4 at pp. 1-2).  The school psychologist noted that the student was seated at his desk with his head down and his paraprofessional close by (id. at p. 1).  She observed that the student responded to questions posed by the teacher using his communication device (id.).  More specifically she reported that the student typed the word "'heat'" in response to the teacher's directive to think of a word that began with the letter "H", and when asked to write about something that made him happy typed "watch TV'" (id.).  The school psychologist reported the student needed prompting from his paraprofessional to continue to use the device to respond to questions and copy a sentence into his notebook (id.).  When asked to draw a picture to go along with his writing the student "giggled and briefly flapped his hands" before drawing and when asked how he was feeling verbally replied "happy" and gave his technology teacher a high five (id.).  The school psychologist reported that the student had an individual behavior professional to address the targeted behavior of elopement (id.).  She reported the student exhibited impulsive behaviors of running away from staff and consistently left his seat to get a desired object (id.).  The school psychologist indicated that the student engaged in work avoidance behavior such as "screaming, crying, ignoring directives, pushing his chair out, pushing the desk, and making light physical cont[a]ct with adults" (id.).  Additionally, she stated that these behaviors were addressed through the use of a "token board with picture symbols and a timer for [the student] to earn a reward during work time" (id.).  The observation report stated that, based on the most recent progress monitoring, the student's BIP was effective in meeting the student's behavior needs (id. at p. 2).  Although the school psychologist described the student's maladaptive behaviors in her observation report, she indicated that during the observation the student was able to follow along with class activities with the frequent support of his paraprofessional, used his communicative device to appropriately respond to questions, and did not exhibit the behaviors included in his BIP (id. at p. 2).

As noted above, a CSE convened on December 8, 2022 and, finding the student continued to be eligible for special education as a student with autism, developed an IEP for the student with an implementation date of December 22, 2022 (Dist. Ex. 1 at pp. 1, 44).  The IEP indicated that the student, who was in fifth grade at the time, demonstrated reading and math skills at the kindergarten level (id. at pp. 5, 44).  As related to academics, the December 2022 IEP included information from the Student Annual Needs Determination Inventory (SANDI), completed in Fall 2022, in areas of reading, writing, math, and communication (id. at pp. 1-2).  With respect to reading and writing the IEP indicated the student identified five emotions; identified attributes such as color, size, shape; identified letters in three letter words, decoded consonant/vowel/consonant (CVC) words, and demonstrated the ability to spell his own name, copy 26 letters, and copy simple words (id.).  According to the SANDI, in the area of math, the student wrote numbers one to 100, and in order one to 20, in addition to solving addition problems with sums up to 10 (id. at p. 2).  In addition, in communication, the student pointed to five body parts, requested desired objects, greeted, waved and communicated using single words to indicate five single concepts using his preferred method of communication (id.).

According to the December 2022 IEP, the student communicated through use of gestures, words, and sentence approximations as well as an alternative and augmentative communication (AAC) device (Dist. Ex. 1 at p. 6).  The IEP stated that the student produced speech sounds and words with difficulty and verbally approximated one-to-two-word phrases, although he would use his AAC device to request a desired item such as spelling "[I] want i[P]ad and headphones" (id. at p. 7).  During speech sessions, the student responded positively to a visual schedule with a delayed reinforcer as a motivator (id.).  The student completed fine motor, gross motor and sensory activities, and appropriately transitioned to the therapy room (id. at p. 11).  Per report, the student inconsistently would cry or become upset when transitioning between undesired or unfamiliar activities and would require verbal support to transition back to task (id. at p. 12).

The December 2022 IEP indicated that the student's target behaviors, as identified in his BIP were "Off-task/Elopement" (Dist. Ex. 1 at p. 3).  The IEP included a review of November 2022 progress monitoring data which operationalized the student's target behaviors by level, as follows: level 1, the student ignored directives and turned his head to avoid eye contact; level 2, the student became disruptive in class with screaming and shouting to distract others, level-3, the student made physical contact with peers and staff members; level 4, the student left assigned areas and wandered around the class; and level 5, the student left the classroom and ran away from staff (id.).[17]  According to the IEP the student required a behavior support paraprofessional, transportation professional, and BIP to address his target behavior of elopement (id. at pp. 6, 15).  The IEP reported that the student "require[d] constant adult supervision during all transitions and require[d] the use of verbal and gestural prompts to complete tasks" (id.).  Further, the IEP reported the student "exhibit[ed] work avoidance behaviors such as screaming, crying, ignoring directives, pushing his chair out, pushing the desk, and making light physical content with adults in the room" or pushe[d] or hit[] classroom staff (id. at pp. 6, 9, 15).  The IEP reported the student protested non preferred items/actions by crying, yelling, and dropping to the floor (id. at p. 9).  Per parent report, the student protested and rejected by engaging in physically aggressive behavior towards her such as hitting and punching, and she expressed significant concerns regarding other violent behaviors seen at home that included pushing, kicking, and pulling hair (id. at pp. 9, 10).

The December 2022 CSE recommended that the student receive compensatory services to make up for loss of skills during school closures related to the COVID-19 pandemic, including SETSS in ELA for three 60-minute individual sessions and SETSS in math for two 60-minute individual sessions, all in the home setting with the projected beginning services date of December 22, 2022 (Dist. Ex. 1 at p. 39).[18]  The December 2022 CSE also recommended with a start date of December 22, 2022 that the student attend an 8:1+1 special class during the 2022-23 school year and receive related services of one 30-minute session per week of counseling services in a group of three; one 30-minute session per week of individual OT, two 30-minute sessions per week of OT in a group (2:1); two 30-minute sessions per week of individual PT; two 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of speech-language therapy in a group, as well as one 30-minute session per month of individual parent counseling and training; in addition to supplementary aids and services that included an individual management /support plan to be implemented daily throughout the school day, a paraprofessional for behavior support full-time, daily; and a assistive technology device to be used daily, throughout the day (id. at p. 37).

In her written testimony, the parent indicated that, during the December 2022 CSE meeting, she was told that the district was "not permitted to recommend a methodology" (Parent Ex. X ¶ 9).  The standards described above clarify that methodology is usually left to the teacher's discretion rather mandating a particular methodology in a student's IEP, but that in some specific instances it may be necessary to specify the precise methodology in the IEP in order to offer a student a FAPE.  Thus, any unequivocal statements made to the parent that a CSE is never permitted to recommend a methodology would be overly broad.  However, a fact-specific review of the information before the CSE regarding the student in this case shows that it does not contain a recommendation for a particular methodology, let alone a clear consensus that such approach would have been required to provide the student a FAPE.  Accordingly, it was appropriate for the CSE to leave the methodology open for a teacher's discretion and, to the extent the issue is presented on appeal, although the student demonstrated significant behavioral needs, I find the December 2022 CSE made recommendations that aligned with those needs.

3. February 2024 IEP

Next, I turn to the parent's allegations regarding the February 2024 IEP and, particularly, the CSE's failure to adopt the recommendations of the September 2023 independent neuropsychological evaluation.  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]).

On September 5, 2023, the student, who was in the sixth grade at that point, participated in an independent neuropsychological evaluation to assess his functioning and related needs (Dist. Ex. 10 at p. 1).  During the neuropsychological evaluation the evaluator reported the student was "highly self-directed with very limited verbal abilities" and generally uncooperative in response to attempts at engaging him in assessment activities, although he did respond randomly to some items (id.).  According to the evaluator, the student "became extremely agitated and aggressive" over time (id.).  The evaluator described the student as "not well controlled" and reported the student was unable to participate in standardized assessment due to his high level of behavioral dysregulation (id.).  Due to the student physically acting out within the evaluator's office he had to be removed (id.).  On December 7, 2023, the evaluator observed the student in his classroom that consisted of six students and six adults including his teacher and paraprofessional seated next to him (id. at pp. 1-2).  At initiation of the observation, the evaluator reported the student seated quietly, drawing on his whiteboard with repetitive writing/drawings of the same item and "not attending to the lesson" (id. at pp. 1-2).  The evaluator described a simple reward system in place in which the student received a certain number of checks in order to obtain a desired item, with the student adding an unearned check on one occasion (id. at p. 2).  The evaluator stated the teacher attempted to engage the student to participate, and the paraprofessional provided prompting, with the student responding, "in his own time and minimally" and at other times "he did not comply with requests" (id.).  The evaluator described the student as "extremely self-directed" throughout the observation (id.).  The evaluator reported that according to both the student's teacher and paraprofessional "the student could likely do more in class, academically, but that behavioral concerns represent[ed] the largest barrier to his learning and success at this time" (id.).  Per observation, the evaluator described the student as highly sensory seeking, for example playing with a "pop it" and with a "rubber ball in/on mouth" in addition to at times engaging in stimming, and exaggerated excitatory responses such as hopping, or vocalizing (id.).

Further, the evaluator reported that, during the evaluation and observation that occurred over two dates in September and December 2023, the student did not engage or appear interested in social interaction and the student was not observed to use spontaneous or functional language, although vocalized when mildly frustrated (Dist. Ex. 10 at p. 2).  The evaluator indicated, based on teacher report, that the student was extremely self-directed, avoidant of work, and often ignored requests for participation; at other times the student would tantrum loudly or lashed out physically at school staff when demands were placed on him (id.).  In addition, the evaluator included, per teacher report, that the student did not use his AAC system at school, and it was unclear if the student understood some tasks demands, which likely contributed to his difficulties (id.).  The evaluator concluded, "[b]ased on observations, [the student] [wa]s not an active (or passive) learner in the classroom at this time due to his significant behavioral difficulties" (id.).

The September 2023 neuropsychological evaluation included parent and teacher completed rating scales of the Behavior Assessment System for Children, Third Edition (BASC-3) that assessed the student's emotional, behavior, and adaptive functioning at home and at school (Dist. Ex. 10 at p. 3).  Both the parent and teacher endorsed difficulty or elevations in the following areas: hyperactivity, depression, atypicality, adaptability, social skills, leadership, withdrawal, attention problems, and functional communication (id. at p. 2).  The teacher also denoted an area of difficulty to include study skills, with the parent denoting elevations or difficulties in aggression and activities of daily living (ADLs) (id.).  In addition, the parent completed the Adaptive Behavior Assessment System – Third Edition (ABAS-3) the results of which suggested the student evidenced significant adaptive impairments across all areas with a general adaptive composite score of 47, corresponding to a score of less than the first percentile (id.).  Following the September 2023 neuropsychological evaluation, the clinician concluded that the student's history and current presentation warranted diagnoses of autism spectrum disorder, with accompanying intellectual and language impairment, level 3, requiring very substantial support; and ADHD, combined presentation (id. at p. 3).

Due to the nature and severity of the student's behavioral challenges, the evaluator opined that the student required 20 "SETSS hours" of 1:1 ABA instruction with a portion of the hours dedicated to a home component (Dist. Ex. 10 at p. 3).[19]^, [20]  Additional recommendations included medical consultation with a pediatric psychologist/neurologist due to behavioral dysregulation and aggressivity; provision of daily speech-language therapy to address the student's speech and language delay; continued OT services to address sensory processing, self-regulation and ADLs; as well as consistent communication between providers and parent; and ongoing assessment to monitor progress and the student's needs (id. at p. 4).

In addition to the September 2023 neuropsychological evaluation information, the February 2024 CSE had before it data regarding the student's reading, writing, communication, and math from the SANDI, and data as obtained from BIP progress monitoring data, in addition to parent and teacher interviews (Dist. Ex. 8 at pp. 5-6; see Dist. Ex. 10).

In relation to academics, the February 2024 IEP showed that the student's scores on the SANDI had increased in reading, math, and communication since he was last assessed in 2022, (compare Dist. Ex. 7 at p. 1, with Dist. Ex. 1 at pp. 1, 2).  Further, the February 2024 IEP stated that, using the student's previous IEP as an evaluation tool, the student had successfully met all of his academic goals, when given verbal and visual support (Dist. Ex. 7 at p. 2).  The goals on the student's previous IEP targeted his ability to use pictures to retell the main topic and two key details in a text, write/dictate two sentences of three to five words, solve addition problems with sums to 20 using a number line, solve subtraction problems with differences up to 15, and de-escalate and self-sooth during moments of maladaptive behavior, given proactive assistance from his paraprofessional (Dist. Ex. 1 at p. 18-24).[21]

The February 2024 IEP included information from the September 2023 neuropsychological evaluation that the student was unable to participate in standardized assessments due to his "high level of behavioral dysregulation" during the evaluation (Dist. Ex. 7 at p. 2).  The February 2024 IEP reported that compensatory SETSS services were recommended on the student's previous IEP and provided from September 2023 through November 2023 during the school day (id. at p. 4).  In addition, the IEP stated that the CSE was now recommending the student receive direct home SETSS along with indirect SETSS to support his family and their behavior concerns at home (id. at pp. 4, 39).

In relation to the student's behaviors, the February 2024 IEP reported that the student required a 1:1 behavior support paraprofessional and a BIP to address his target problem behavior of elopement (Dist. Ex. 7 at p. 9).  The IEP stated that the student required constant adult supervision during all transitions and required verbal and gestural prompts to complete tasks (id.).  The IEP described behaviors of the student to include running away from staff; consistently getting out of his seat to obtain a desired object; work avoidance behaviors such as screaming, crying, ignoring directives, pushing his chair out, pushing the desk and making light physical contact with adults in the room (id.).  The IEP noted, per the most recent BIP progress update, that the frequency and intensity of targeted behaviors had decreased, while the duration of the student's behaviors had slightly increased (id.).  Per parent report at the meeting, the student demonstrated physically aggressive behaviors at home (id.).

The February 2024 IEP included speech and language information that the student communicated using multi-modalities such as gestures, facial expressions, single to three-word sentences, and his communication device (Dist. Ex. 7 at p. 5).  The IEP reported the student understood concept categories and navigated his device to find correct words related to categories such as colors, shapes, holidays, sports, and clothing (id.).  In addition, the IEP noted the student followed simple two step directions, and when provided with visual choices could respond to who, what, when, and where questions (id.).  The IEP stated the student demonstrated a strength in receptive language, reading skills, and enjoyed hands on tasks (id. at p. 7).  The IEP reported the student needed visuals to support attention, and to develop increased awareness of peers, including in areas that addressed greeting and conversational skills (id.).

In the area of counseling, the February 2024 IEP reported the student enjoyed attending counseling sessions and demonstrated the ability to express his wants and needs (Dist. Ex. 7 at p. 8).  However, the IEP also indicated the student showed work avoidance during challenging or unfavorable tasks/activities and needed to improve his coping skills when angry or frustrated (id. at pp. 8-9).  The IEP noted that according to a behavior progress monitoring form the student also needed to work staying on task during classwork and socializing with classmates (id. at p. 8).

As related to physical development, the February 2024 IEP stated the student continued to need PT to address endurance and on task behaviors for non-preferred tasks (Dist. Ex. 7 at p. 10).  In the area of OT, the IEP reported the student required close supervision during transitions, and use of equipment due to limitations in safety and environmental awareness and indicated the student demonstrated inconsistent participation in therapist directed tasks due to his limited self-regulation, attention to task, and motivation (id.).

The February 2024 CSE continued to find the student eligible for special education as a student with autism and recommended he continue in an 8:1+1 special class setting and receive related services at the same frequency as the December 2022 IEP, with 60-minute parent counseling and training workshops provided as a group service four times per year (Dist. Ex. 7 at p. 29).  The February CSE continued to recommend a paraprofessional for behavior support full-time, daily, and an assistive technology device to be used daily, throughout the day (id.).  In addition, the February 2024 CSE recommended that the student be provided individual, direct SETSS five times per week for 60 minutes outside of the school setting and indirect SETSS two times per week either outside or in the school setting (id.).

With respect to the recommendations set forth in the September 2023 neuropsychological evaluation, the March 8, 2024 prior written notice stated that the "20 hours of ABA SETSS was not appropriate for [the student] as . . . he [wa]s able to make progress with a less intense schedule" and the February 2024 IEP indicated that the district considered the parent's request for 20 hours of support but believed the five hours of SETSS in the home would provide the structure and support the student needed to reduce maladaptive behaviors (Dist. Exs. 7 at p. 40; 8 at p. 6; see Dist. Ex. 10 at p. 3).

As the IHO noted, the February 2024 CSE considered the September 2023 neuropsychological but was not obligated to adopt the recommendations of the private evaluator (see, e.g., Mr. P., 885 F.3d at 753; Watson, 325 F. Supp. 2d at 145).  To be sure the district's view that the student would benefit from five hours of SETSS in the home would be stronger had the district implemented the previous recommendation for compensatory services consisting of a similar frequency and duration of services, albeit for a different purpose (Dist. Ex. 1 at pp. 39-40).  Nevertheless, the IEP documented the student's progress even without the home-based SETSS leading up to the February 2024 CSE meeting and without a particular methodology and, therefore, there was not a clear consensus that the student required ABA and there is insufficient basis in the hearing record to disturb the IHO's conclusion that the CSE's recommendation was designed to enable the student to make progress (D.S. v. Rockville Ctr. Union Free Sch. Dist., 2022 WL 683973, at *12 [E.D.N.Y. Mar. 8, 2022] [finding a CSE did not need to consider addition ABA services for a student where the student was making progress in the district's program]).

C. Compensatory Education

Turning to relief, I note that compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).  The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme, 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).  Likewise, SROs have awarded compensatory education services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. of City Sch. Dist. of Buffalo v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]).  Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

As noted above, the district has not challenged the IHO's award of 260 hours of compensatory SETSS to make up for services not implemented from December 22, 2022 to February 28, 2024; five hours per week of compensatory SETSS and one hour every three months of compensatory parent counseling and training to make up for services not implemented between March 13, 2024 and June 30, 2024; and two hours per week of compensatory indirect SETSS for the 12-month 2024-25 school year along with one hour of parent counseling and training every three months until the end of the 2024-25 school year or until the district began implementing the service (see IHO Decision at p. 9).[22]  The parent, however, appeals the IHO's award for failing to order the 840 hours of SETSS sought for the 2024-25 school year, for failing to order that the compensatory education be provided using ABA methodology, and for failing to award sufficient compensatory parent counseling and training.

With respect to the 2024-25 school year, in light of the above discussion of the February 2024 CSE's recommendation, I do not find that the IHO erred in declining to award the 840 hours of compensatory education requested by the parent for the 2024-25 school year.  However, according to the parent, since the beginning of the school year through the date of her affidavit, December 5, 2024, the student had "not received any of his SETSS program" (Parent Ex. X ¶ 24).  Further, there is no indication that there was a change in circumstances after the date of the parent's testimony.  I find that an award based on the recommendation for five hours per week of home programming, rather than the 20 hours per week recommended in the September 2023 neuropsychological evaluation, is reflective of the evidence in the hearing record and would serve to place the student in the position he would have been had the district implemented the services mandated by the February 2024 IEP or any subsequent plan during the 2024-25 school year.

Therefore, in addition to the compensatory hours awarded by the IHO, the district shall also provide or fund compensatory education  in the form of an additional 210 hours of SETSS to remedy the district's failure to implement the student's five hours per week of mandated home-based SETSS for the 2024-25 school year, less any services already provided by the district.

With respect to the parent's request that the compensatory SETSS be provided using ABA, while I find that the December 2022 and February 2024 IEPs were designed to enable the student to make progress despite the lack of recommendations for ABA, the district has failed to adequately consider ABA or to deliver the services it feels would benefit the student instead of ABA.  That failure has occurred despite specific findings after investigations resulting from the parent's State complaints that were then paired with specific corrective actions directing the CSE to consider ABA and address the implementation failures (see Parent Exs. M; V).  Moreover, the evidence reflects that the student exhibits interfering behaviors, which could potentially respond to ABA (see Dist. Ex. 10).  While the hearing record as whole does lead to the conclusion that the student could not receive educational benefits without ABA as part of the IEP programming, as a matter within my discretion, I will order the compensatory education to be provided using ABA, unless the parties otherwise agree.

Next, the parent also alleges that the IHO did not award compensatory education in the form of parent counseling and training to remedy the district's failure to provide the parent counseling and training mandated on the December 2022 IEP.  However, in the due process complaint notice, the parent requested compensatory parent counseling and training for the period of February through June 2024 (Parent Ex. W at p. 8; see also IHO Ex. I at p. 2).  The IHO awarded compensatory parent counseling and training for this time period based on the mandate in the February 2024 IEP for four 60-minute sessions per year (IHO Decision at p. 9; Dist. Ex. 7 at p. 29).[23]  Moreover, as requested by the parent, the IHO awarded 84 hours of indirect SETSS for the 2024-25 school year (IHO Decision at p. 9).  The original rationale of the district for recommending indirect SETSS on the February 2024 IEP was to address the district's failure to provide parent counseling and training during the 2022-23 school year (see Dist. Ex. 7 at p. 39).  Therefore, I do not find that further compensatory education in the area of parent counseling and training is warranted.

Finally, although the compensatory education for the unimplemented five hours per week of home-based SETSS  services shall be ordered as ABA, I do not find sufficient basis to modify the IHO's award of compensatory parent counseling and training or indirect SETSS to require that they be provided by a BCBA.  According to State regulation, parent counseling and training is defined as "assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's [IEP]" (8 NYCRR 200.1[kk]; see 34 CFR 300.34[c][8]).  In her explanation of relief sought, the parent states that the compensatory indirect services would be "used for collaboration between the home and school team, training of paraprofessionals/staff as needed and . . . to supply [the family] with parent counseling and training" (IHO Ex. I at p. 2).  There is no indication in the request or in the hearing record why a BCBA would be required to deliver these services.  Accordingly, I find no basis in the hearing record to disturb the IHO's award.

In summary the total number of compensatory education hours awarded due to the lack of SETSS including those awarded by the IHO as added to herein shall be 548 hours less any hours already provided or funded by the district.  Because the CSE failed to at least consider the use of ABA and provided the parent with prior written notice explaining its reasoning with regard to methodology as directed by SEQA, as a discretionary matter I find the 548 hours of compensatory education (less any hours already delivered) must be provided the student using ABA unless the parties otherwise agree.  Further the IHO's awards of approximately five hours of compensatory parent counseling and training and 84 hours of indirect SETSS are not disturbed.

D. Independent FBA and BIP

On appeal, the parent reiterates her disagreement with the district's June 2024 FBA of the student but falls short of challenging the IHO's failure to award district funding of an independent FBA and BIP.  Nevertheless, even if properly raised, the parent's request would be denied.

The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]).  Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]).[24]

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv).  If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]).  Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]).  The Second Circuit Court of Appeals has recently found that, if a district and a parent agree that a student should be evaluated before the required triennial evaluation "the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs" or "[o]therwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation" (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 [2d Cir. 2020]).

Relevant to the parent's request for an FBA as an IEE, the Second Circuit Court of Appeals has discussed the idea of a comprehensive evaluation or re-evaluation of a student forming the basis of an publicly-funded IEE request, as opposed to a single assessment (i.e., an FBA) (see Trumbull, 975 F.3d at 170; see also T.P. v. Bryan County Sch. Dist., 792 F.3d 1284, 1291 n.13 [11th Cir. 2015] [discussing the awkwardness of referring to individual assessments as IEEs when "evaluation" is used in the IDEA to refer to the entire process of determining a student's needs]).  The Court in Trumbull held that parents may base a request for an IEE on the last full evaluation conducted by the district (975 F.3d at 169-70 ["Because the only evaluations that trigger a parent's right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent's right to an IEE at public expense ripens each time a new evaluation is conducted.  The time within which a parent must express their disagreement with an evaluation and request an IEE depends on how frequently the child is evaluated."]).

Here, the district conducted a classroom observation of the student in November 2022 to constitute the student's triennial evaluation (see Dist. Ex. 4; see also Parent Ex. I).  Subsequent to that triennial evaluation of the student, the district funded the September 2023 neuropsychological evaluation, an IEE (see Dist. Ex. 10).  As noted above, "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]).  The district conducted an FBA of the student in June 2024 (Parent Ex. T).  While the parent has expressed disagreement with the June 2024 FBA, under the Second Circuit authority described above, disagreement with a single assessment such as an FBA may not for the basis of an IEE at public expense (Trumbull, 975 F.3d at 170).  Thus the parent is not entitled to an independent FBA or BIP based thereon at public expense under the prevailing law.

VII. Conclusion

Based on the foregoing, although the IHO's determination that the district denied the student a FAPE by failing to implement all of the student's mandated services is final and binding, I do not find additional grounds for a finding of a denial of a FAPE to the student for the 2022-23, 2023-24, or 2024-25 school years based on the claims raised by the parent relating to the December 2022 and February 2024 CSEs' failure to recommend ABA in the student's IEP or the February 2024 CSE's failure to adopt the recommendations of the September 2023 neuropsychological evaluation and specify those private recommendations in the IEP.  Nevertheless, the district's continued failure to remediate the situation necessitates some modification of the IHO's award of compensatory education for the reasons described above.  Accordingly, I will, as a matter within my discretionary authority to fashion equitable relief, order that the compensatory education relief be provided to the student in the form of ABA.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision dated January 13, 2025 is modified to provide that the compensatory education due to the lack of SETSS services shall total 548 hours less any hours already provided or funded by the district and shall be provided using ABA unless the parties otherwise agree.