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 determined that respondent (the district) offered their son appropriate programming and denied their request to be reimbursed for their son's tuition at the IVDU Upper School (IVDU) for the 2022-23 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

The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail.

The CSE convened on June 2, 2022, and found the student eligible for special education and related services as a student with a learning disability (Parent Ex. B).[1]  CSE members consisted of a related service provider/special education teacher who also served as the district representative, the parent, a district school psychologist, and an IVDU classroom teacher (id. at pp. 21-22).  The CSE recommended five periods per week of direct special education teacher support services (SETSS) for math, English-language arts (ELA) and writing support, and five periods per week each of 15:1 special class instruction in math, ELA, social studies, and sciences in a district nonspecialized school (id. at pp. 14-15, 19).  For related services, the CSE recommended one 40-minute session per week of individual counseling, three 30-minute sessions per week of individual occupational therapy (OT), two 40-minute sessions per week of individual speech-language therapy, and one 40-minute session per week of group speech-language (id. at p. 15).

In a prior written notice to the parents and a school location letter, both dated July 8, 2022, the district summarized the recommendations of the June 2022 CSE and notified the parents of the particular public school to which it assigned the student to attend for the 2022-23 school year (Dist. Exs. 13; 14).

In a letter dated August 15, 2022, the parent notified the district that she had received the school location letter for the 2022-23 school year (Parent Ex. C).  The parent indicated that she had concerns about the assigned public school and the recommendation of a 15:1 special class; however, she was interested in considering the district's program and placement (id.).  The parent noted that she had attempted to contact the school, but she had not heard back and did not have enough information to determine the appropriateness of the district's program/placement (id.).  Therefore, the parent notified the district out of "an abundance of caution" of her intent to unilaterally place the student at IVDU for the 2022-23 school year and that she would reserve the right to seek reimbursement/funding of the costs of the student's program from the district (id.).

The parent signed a contract with IVDU for the 2022-23 school year on September 4, 2022 (Parent Ex. H).  The contract indicated that the cost of tuition included related services of OT, counseling, speech-language therapy, and physical therapy (PT) (id.).  The student attended IVDU during the 2022-23 school year (12th grade) and received related services (Parent Exs. B at p. 2; E; F).

A. Due Process Complaint Notice

In a due process complaint notice dated November 12, 2023, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23 school year based on various procedural and substantive violations (Parent Ex. A).  The parents asserted that the district failed to develop an educational program to meet the student's individual needs and provide sufficient support (id. at p. 1).  Specifically, the parents alleged that the district's recommendation of a 15:1 special class was too large as it would not have provided the student with sufficient individual support and the additional SETSS was not an adequate substitute for a smaller classroom setting (id. at p. 2).  The parents also contended that the district failed to assess the student in all areas of suspected disability, failed to develop sufficient and measurable goals, failed to sufficiently state the student's transition needs, failed to recommend parent counseling and training, failed to outline support for school personnel, and failed to consider the full continuum of services including a private placement (id. at p. 3).  Additionally, the parents alleged that the district failed to offer sufficient supports, accommodations, failed to recommend a coordinated set of transition activities, failed to assign special education transportation, failed to specify information about promotion criteria, and failed to meaningfully consider the opinion/recommendations of IVDU staff and the parents (id.).  Moreover, the parents acknowledged that they had received a school location letter from the district notifying them of the student's assigned public school; however, they never heard back from the district about scheduling a time to visit the assigned public school (id.).[2]

The parents requested the district be ordered to reimburse/fund the tuition, costs, and expenses of the student's unilateral placement at IVDU inclusive of all supports, services, and evaluations (Parent Ex. A at p. 4).  The parents also reserved the right to seek reimbursement/funding for the cost of appropriate transportation services (id.).

B. Impartial Hearing Officer Decision

An impartial hearing convened on December 18, 2023 and concluded on November 19, 2024, after thirteen days of proceedings (see Tr. pp. 1-111).  In a decision dated December 22, 2024, the IHO found that the district offered the student a FAPE for the 2022-23 school year (IHO Decision at p. 5).  Specifically, the IHO determined that the 15:1 special class program with SETSS and OT could meet the student's academic and social/emotional needs (id.).  The IHO concluded that the 15:1 special class was not too large and was sufficient to support the student's needs (id.).  Having found that the district offered the student a FAPE, the IHO declined to address whether the unilateral placement was appropriate for the student (id.).

The IHO did address equitable considerations and held that they did not favor the parent (IHO Decision at pp. 5-7).  The IHO found that the parent "made little to no effort to visit the public school placement prior to the" start of the 2022-23 school year (id. at p. 6).  The IHO determined that the parent's testimony that she attempted to telephone the district during the summer was not credible because she did not identify any dates of communications or the names of school staff who she left a message (id.).  The IHO also noted that the parent waited more than five weeks to advise the CSE by a letter that she could not reach the school, which the IHO found to be "disingenuous" (id.).  The IHO held that the parent sent a letter to the CSE, rather than call, because this "would drag out the process and help support her claim for reimbursement" (id.).  The IHO dismissed with prejudice the parents' request for tuition reimbursement and/or direct funding (id. at p. 7).

IV. Appeal for State-Level Review

The parents appeal.  The parents argue that IHO erred because the decision was "conclusory, lacked appropriate citation to the record and the law, was not supported by the record, misstated the record, misjudged witness testimony and credibility, and failed to address several significant issues" (Req. for Rev. ¶ 16).  The parents allege that the IHO improperly found that the district offered the student a FAPE for the 2022-23 school year.  According to the parents, the district failed to explain why it ignored the parents and IVDU staff's concerns, the district failed to support its recommendations, and the district's school psychologist lacked knowledge of the student and the 15:1 placement.  The parents further allege that the IHO erred in failing to consider evidence that: a 15:1 special class would not be appropriate for the student; that the district engaged in predetermination; that the CSE was not properly composed; that the parents were denied the right to meaningfully participate; that SETSS was inappropriate; that the district failed to recommend appropriate related services for the student, including parent training; and that the district failed to recommend an appropriate transition plan.  The parents also argue that the IHO failed to consider that the district did not meet its burden to prove that the assigned public school could provide the student with a FAPE.

Additionally, the parents assert that the IHO erred by not addressing the appropriateness of IVDU, which the parents allege was appropriate to meet the student's needs.  Finally, the parents contend that the IHO erred in finding that equitable considerations do not favor them.  The parents argue that the district failed to rebut the presumption that they were cooperative and they in no way interfered with the district's ability to educate the student.  The parents assert they were cooperative, attempted to contact the assigned public school, and provided the district with timely notices.  According to the parents, the IHO misconstrued the parent's testimony and made unsubstantiated assumptions regarding her motives.

In an answer, the district alleges that the IHO correctly determined that it offered the student a FAPE.  The district asserts that any issue not raised in the request for review from the due process complaint notice should be deemed abandoned.  The district argues that it was not required to adopt all of the recommendations of the IVDU staff, but to consider the student's needs.  The district asserts that the parents had substantial input in the CSE process.  Moreover, the school psychologist was not required to have worked in a 15:1 placement to make such a recommendation.  The district alleges that it sufficiently explained why SETSS were appropriate for the student and the IEP sufficiently addressed the student's transition needs.  The district argues that the CSE was properly composed as a general education teacher was not required since the student was not a general education student.  Lastly, the district asserts that the parents do not make any specific allegations regarding the assigned public school and the claim is impermissibly speculative.

The district alleges that IVDU was not an appropriate placement for the student, and that the IHO correctly found that equites do not favor the parents.  The district asserts that the IHO properly concluded that the parent made little to no effort to visit the assigned public school.  According to the district, the IHO based his conclusions on the totality of the evidence, and they were not baseless or unsubstantiated.  The district also argues that the IHO correctly found that the parent's testimony was not credible.

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]).[3]

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. Preliminary Matters

1. Scope of Review

Before addressing the merits, a determination must be made regarding which claims are properly before me on appeal.  State regulations governing practice before the Office of State Review provide that a request for review "shall clearly specify the reasons for challenging the [IHO's] decision, identify the findings, conclusions, and orders to which exceptions are taken, or the failure or refusal to make a finding, and shall indicate what relief should be granted by the [SRO] to the petitioner" (8 NYCRR 279.4[a]).  Additionally, a request for review must provide a "clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately, and identifying the precise rulings, failures to rule, or refusals to rule presented for review" (8 NYCRR 279.8[c][2]).  The regulation further states that "any issue not identified in a party's request for review, answer, or answer with cross-appeal shall be deemed abandoned and will not be addressed by a State Review Officer" (8 NYCRR 279.8[c][4]).

Generally, the failure to comply with the practice requirements of Part 279 of the State regulations may result in the rejection of the submitted documents or a determination excluding issues from the scope of review on appeal (8 NYCRR 279.8[a]; 279.13; see  Davis v. Carranza, 2021 WL 964820, at *12 [S.D.N.Y. Mar. 15, 2021] [upholding an SRO's conclusions that several claims had been abandoned by the petitioner]; M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *23 [S.D.N.Y. Sept. 28, 2018] [upholding dismissal of allegations set forth in an appeal to an SRO for "failure to identify the precise rulings presented for review and [failure] to cite to the pertinent portions of the record on appeal, as required in order to raise an issue" for review on appeal]).

Here, the parents only identified six specific issues in the request for review: CSE composition; that the CSE predetermined the student's placement and therefore denied the parents participation in the IEP development process, the appropriateness of the 15:1 special class recommendation, related services (including parent training and counseling), and transition plan; and the ability of the assigned public school to implement the student's IEP (see Req. for Rev. ¶¶ 22-26).  As those are the issues raised in the request for review, those will be the only issues addressed in this decision and any claims from the due process complaint notice not raised on appeal are deemed abandoned (8 NYCRR 279.8[c][4]).

Moreover, the parents' general assertion on appeal that the IHO failed to consider many issues is not enough to resurrect claims in the due process complaint notice when the parents have not specified what issues went unaddressed by the IHO (see Bd. of Educ. of Harrison Cent. Sch. Dist. v. C.S., 2024 WL 4252499, at *13 [S.D.N.Y. Sept. 20, 2024] [finding that "[m]erely asserting that the IHO" erred in finding that the district did not offer the student a FAPE "does not raise the precise rulings presented for review"]; W.R. v. Katonah Lewisboro Union Free Sch. Dist., 2022 WL 17539699, at *9 [S.D.N.Y. Dec. 7, 2022] [same]; M.C., 2018 WL 4997516, at *23 [finding that "the phrase 'procedural inadequacies,' without more, simply does not meet the state's pleading requirement"]).  While I am tasked with conducting an independent review of the hearing record on appeal, State level review of an IHO's determination is not simply the relitigation of all prior arguments conceivably leveled against a party during an impartial hearing; on the contrary, it is an appellate administrative process in which the allegations must be brought forth by the party and clearly aimed at the findings in the IHO's decision (see 8 NYCRR 279.4[a]; 279.8[c][2]; cf. DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 [S.D.N.Y. 2009] [articulating a similar expectation for objections to a magistrate's report and recommendation]).

2. IHO Decision—Citations to the Hearing Record

The parents also contend that the IHO's decision that the district offered the student a FAPE was conclusory, lacked appropriate citation to the record and law, and was not supported by the hearing record (Req. for Rev. ¶ 16).  State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall set forth the reasons and the factual basis for the determination.  The decision shall reference the hearing record to support the findings of fact" (8 NYCRR 200.5[j][5][v]).  In order to properly reference the hearing record, pages of transcript and relevant exhibit numbers should be cited with specificity.  State regulations further require that an IHO "render and write decisions in accordance with appropriate standard legal practice" (8 NYCRR 200.1[x][4][v]).  Citations to applicable law are the norm in "appropriate standard legal practice," and should be included in any IHO decision.  The failure to cite with specificity facts in the hearing record and law on which the decision is based is not helpful to the parties in understanding the decision and deciding if a basis exists on which to appeal.  The IHO is reminded in the future to comply with State regulations, cite to relevant facts in the hearing record with specificity, and provide a reasoned analysis of those facts that reference applicable law in support of his conclusions.

As discussed in detail below, I have conducted an independent review of the issues specifically within the scope of review.

B. June 2022 CSE

On appeal, the parents assert generally that the IHO failed to consider that the June 2022 CSE was improperly composed.  The June 2022 CSE was composed of a related service provider/special education teacher who also served as the district representative, the parent, a district school psychologist, and the IVDU classroom teacher (Parent Ex. B at pp. 21-22).  The IDEA requires a CSE to include the following members: the parents; one regular education teacher of the student (if the student was, or may be, participating in the regular education environment); one special education teacher of the student or, where appropriate, not less than one special education provider of the student; a district representative;[1] an individual capable of interpreting instructional implications of evaluation results; at the discretion of the parent or district, other persons having knowledge or special expertise regarding the student, "including related services personnel as appropriate"; and if appropriate, the student (20 U.S.C. § 1414[d][1][B]; see 34 CFR 300.321[a]; 8 NYCRR 200.3[a][1]).  The parents correctly point out that there was no district regular education teacher at the June 2022 CSE meeting (Parent Ex. B at pp. 21-22).  However, this alone did not rise to the level of a denial of FAPE in this instance.  As stated above, a regular education teacher is only required when the student participates or may participate in the general education environment.  The student in this matter was not participating in the general education environment at the nonpublic school nor were the parents seeking such placement at the time of the CSE meeting, and on appeal the parents are still not seeking a general education placement for the student (Parent Exs. B at p. 2; K ¶¶ 1, 7, 8; L ¶¶ 5, 16).  Therefore, I decline to find that the lack of a regular education teacher rendered the CSE improperly composed.  Additionally, even if I had found that the lack of a regular education teacher was a procedural violation, it would not rise to the level of a denial of a FAPE as it did not impede the student's right to a FAPE, significantly impede the parents' opportunity to participate in the decision-making process, or cause a deprivation of educational benefits (see 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5 [j][4][ii]). 

In their memorandum of law, the parents also claim that the June 2022 CSE lacked related service providers, specifically an occupational therapist and speech-language therapist although both related services were recommended, a SETSS provider to "justify [the CSE's] offered program," and a "[t]ransition [c]oordinator or [g]uidance [c]ounselor" (Parent Mem. Of Law at pp. 11, 14-15).  Review of the June 2022 IEP shows that the CSE had information regarding the student's needs addressed by OT from a 2021 OT progress report, and information regarding the student's speech-language needs (Parent Ex. B at pp. 3-5).  Additionally, the evidence reflects that a special education teacher participated during the June 2022 CSE meeting, and the regulations described above do not require participation specifically from a SETSS provider (Parent Ex. B at p. 21; Dist. Ex. 19 ¶ 8).  Further, transition coordinators and guidance counselors are not required members of a CSE, and the appropriateness of the student's transition plan will be discussed below.

Next, on appeal the parents assert that the IHO "glossed over" that the only reason the CSE recommended a 15:1 special class placement was because it was the smallest class available for him in a community school, therefore failing to consider that the CSE predetermined the student's placement recommendation, which denied the parents meaningful participation in the IEP development process.  Here, the evidence does not support the parents' contention that the CSE predetermined the student's placement recommendation such that they were denied participation in the development of the student's IEP.

With respect 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. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-*11 [E.D.N.Y. Sept. 2, 2011]; 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 Dep't 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 IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. §1415[b][1]).  Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]).  Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see E.H. v. Bd. of Educ., 361 Fed. App'x 156, 160 [2d Cir. 2009]; E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *17 [E.D.N.Y. Aug. 19, 2013] [holding that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"]; DiRocco v. Bd. of Educ., 2013 WL 25959, at *18-*20 [S.D.N.Y. Jan. 2, 2013]; P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] ["[a] professional disagreement is not an IDEA violation"]; Sch. For Language and Commc'n Development v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] [finding that "[m]eaningful participation does not require deferral to parent choice"]).

While the school psychologist did testify that a 15:1 special class was the "smallest class size available for high school students" in a community (nonspecialized) school, review of the June 2022 IEP shows that the CSE considered other placement options for the student (Tr. pp. 91-92; Parent Ex. B at p. 21).  Specifically, the IEP reflects that the June 2022 CSE considered a general education class with integrated coteaching (ICT) services, but determined that this would be too overwhelming for the student and not provide the student's "needed level of support" (Parent Ex. B at p. 21).  The June 2022 CSE also considered a 12:1+1 special class in a district specialized school for the student, but determined that placement would not provide appropriate peer models for the student and was too restrictive (id.).  The school psychologist testified that the IEP present levels of performance "memorialized" the student's academic, social/emotional, and physical strengths and deficits and that the CSE had "a clear understanding" of the student's academic and functional levels (Dist. Ex. 19 ¶¶ 14-17).  Although during the CSE meeting IVDU staff expressed concerns about the "final recommendation" in that a 15:1 ratio was "too large of a setting" for the student, the school psychologist testified that the recommended placement was appropriate, as given what she knew about the student's strengths and needs, a district nonspecialized school "would enable [the student] to make progress with the general education curriculum in the least restrictive environment" (Parent Ex. B at p. 1; Dist. Ex. 19 ¶ 12).  As discussed more below, while the parents and nonpublic school staff were concerned about the size of the 15:1 special class, the CSE also recommended SETSS for the student, specifically to reinforce the student's 15:1 special class math, ELA, and writing instruction, that would be provided in a group no larger than eight students, as compared to the 8-10 students in the student's nonpublic school special class at the time of the CSE meeting (compare Tr. p. 88 and Parent Ex. B at p. 14, with Parent Ex. B at p. 2 and Parent Ex. L ¶ 16).

Additionally, review of the June 2022 IEP shows that the student's mother participated in the development of the student's IEP (see Parent Ex. B at pp. 2-5).  Specifically, the parent was asked about her concerns regarding the student's academic, social, and physical development, and the CSE included those concerns and the nonpublic school concerns in the IEP present levels of performance (see id.).  Review of the IEP also shows that information from IVDU, in the form of both teacher participation during the meeting and review of an IVDU progress report, was considered by the CSE and incorporated into the IEP (see id.).  A review of the annual goals contained in the June 2022 IEP shows that they appear to be developed directly from the student's present levels of performance, which included test results, teacher reporting, CSE discussion, and parent input (see id.).  For example, assessment results from the WIAT-III reflected the student's low average skills in spelling and the June 2022 IEP included an annual goal for the student to "employ a number of strategies to improve his spelling of multi-syllabic words, such as copying, flashcards, memorization, word games, and use in general writing" (id. at pp. 2, 8).  As stated by his nonpublic school teacher at the June 2022 meeting, the student exhibited continued needs in inferencing, determining story elements, and both paragraph and essay writing (id. at p. 3).  The June 2022 IEP contained five annual goals to improve the student's reading and writing, including his ability to "identify and explain common literary elements," and use several strategies to increase sentence length, use correct punctuation, and improve the "overall content of his writing" (id. at pp. 7-8).  Further, the nonpublic school teacher noted the student's learning needs in mathematics, specifically fractions, decimals, charting, word problems, and variables, and to address these specific needs, the June 2022 IEP included nine annual goals for math reflective of the teacher's input (see id. at pp. 3, 8-9).

Where parents or their privately obtained experts may disagree with the CSE's placement or program recommendations, such professional disagreement itself does not demonstrate that the parents were prevented from participating, nor does it rise to the level of a procedural violation unless there is evidence that their opportunity to participate was actually impeded or the CSE acted with a closed mind or predetermined outcome (see P.K., 569 F. Supp. 2d at 383).  Review of the hearing record does not support the parents' claims that the IHO erred by not finding that the alleged procedural violations including deficient CSE composition, predetermination, and lack of parent participation resulted in a denial of a FAPE.

C. June 2022 IEP

Turning to the parents' claims regarding the recommended special education programming, a review of the student's needs and current functioning will provide the further background necessary to evaluate the appropriateness of the June 2022 IEP.

The student's needs at the time of the June 2022 CSE meeting were identified in the IEP present levels of performance and are not in dispute on appeal.  A prior written notice dated July 8, 2022 indicated that the June 2022 CSE used the following evaluative information in developing the student's IEP for the 2022-23 school year: a February 2020 psychoeducational report; results from a June 2022 transition interview, and a 2021-22 IVDU student progress report (Dist. Ex. 13 at p. 2).

The June 2022 IEP reflected the student's performance on a 2020 administration of the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V), which yielded a full scale IQ of 83 (low average) and scores in the average range on the verbal comprehension, visual spatial, and working memory subtests; a low average score on the fluid reasoning subtest, and an extremely low score on the processing speed subtest (Parent Ex. B at p. 2).  On a 2020 administration of the Wechsler Individual Achievement Test, Third Edition (WIAT-III), the student achieved average subtest scores in mathematics problem solving and numerical operations; below average subtest scores in reading comprehension and spelling, and a score in the low range on the word reading subtest (id.).  According to the student's teacher, who was present at the June 2022 meeting, the student's reading skills were considered to be at a seventh-grade level and the student was working on inferencing and determining a theme, scene and setting of a story (id. at p. 3).  Fall 2021 IVDU progress report information reflected in the IEP indicated that the student required "minimal support" when independently reading a grade level text and was able to identify and analyze literary elements in a passage (id.).  In writing, the student's teacher indicated that he was working on paragraphs and "the starting of essay writing" (id.).  The teacher stated that in math, the student was in a "pre-algebra" course and the progress report noted that he had made progress understanding the relationship between fractions and decimals (id.).  A speech-language update included in the IEP noted that the student "continue[d] to require guided prompts to use inferential thinking and critical thinking skills" (id.).  The IEP indicated that the student had not taken any Regents exams to date but that he was preparing to take the algebra, living environment and US history exams in the 2022-23 school year (id. at p. 4).  Further, the IEP indicated that the parent reported that she wanted the student to take the "[R]egent exams and be able to get to a higher level with his academic skills," and that she had concerns across all areas of his academics (id.).

Turning to the student's social development, the June 2022 IEP noted that the parent indicated that the student was "very shy," it was difficult for him to "make friends" and he was more of a "homebody" (Parent Ex. B at p. 4).  The parent expressed that she wanted to "see him be more social with same aged peers" (id.).  The IEP reflected a fall 2021 counseling progress report that indicated that the student was continuing to develop "self-awareness" regarding his executive functioning challenges and how they impacted his productivity (id.).  According to the IEP, the student "continuously struggle[d] to have the motivation and to learn the skills to implement the change necessary for increased productivity" (id.).  The student was reported to have difficulty arriving to school on time, but had made some progress and accepted "full responsibility for the consequences in a mature manner" (id.).  The IEP stated that the student's social strengths included "initiating conversation and games with peers if it was regarding a topic of interest" (id.).

In terms of the student's physical development, the June 2022 IEP indicated that the student had some allergy sensitivities and wore glasses but there were no medical concerns noted (Parent Ex. B at p. 5).  The IEP indicated that the student had previously received a diagnosis of epilepsy as he sometimes had "small seizures" but was "no longer on medication" and "under a neurologist['s] care" (id.).  According to the IEP, the parent indicated that the student had received a diagnosis of attention deficit hyperactivity disorder (ADHD) in 2021, but a formal "report was not created," and the student did not take medication for it (id. at pp. 3, 5).  The IEP included information from a fall 2021 OT progress report which stated that the student completed "an exercise regimen that work[ed] to increase his upper extremity core muscle strength" and that his handwriting skills were improving (id. at p. 5).  The student's activities of daily living (ADL) skills were considered to be age-appropriate (id. at p. 3).  Additionally, the IEP reflected that that student had not received PT during the previous two school years and that the parent would pursue a PT reevaluation as she had concerns that the student was "very clumsy" and she wanted PT to work on his ability to throw or catch a ball (id. at p. 5).

The June 2022 CSE recommended approximately 30 annual goals that targeted the student's identified needs in the areas of verbal and reading comprehension, executive functioning and organization, written expression and spelling, math operations and problem solving, and post-secondary skills (Parent Ex. B at pp. 2-5, 7-11, 13-14).  Additionally, the June 2022 IEP included several speech-language, counseling, and OT goals to address the student's speech intelligibility, and receptive and expressive language, social pragmatic, graphomotor, and visual perceptual needs (see Parent Ex. B at pp. 3-5, 11-12).

Turning to the parents' IEP claims, they first argue that the IHO erred by concluding that the June 2022 CSE's recommendation for a 15:1 special class was appropriate, as the IHO failed to consider the evidence that the student needed a smaller, more intensive class setting.  The district contends that the recommendation of a 15:1 special class, together with SETSS and related services, was appropriate to address the student's needs.

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 term SETSS is not defined in the State continuum of special education services (see NYCRR 200.6), and the manner in which those services are treated in a particular case is often in the eye of the beholder.  As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district, and unless the parties and the hearing officer take the time to develop a record on the topic in each proceeding it becomes problematic (see Application of the Dep't of Educ., Appeal No. 20-125).  For example, SETSS has been described in a prior proceeding as "a flexible hybrid service combining Consultant Teacher and Resource Room Service" that was instituted under a temporary innovative program waiver to support a student "in the general education classroom" (Application of a Student with a Disability, Appeal No. 16-056), and in another proceeding it was suggested that SETSS was more of an a la carte service that is completely disconnected from supporting the student in a general education classroom setting (Application of a Student with a Disability, Appeal No. 19-047).

The June 2022 CSE recommended that the student attend a 15:1 special class for daily math, ELA, science, and social studies instruction, and receive five periods per week of group SETSS for math, ELA, and writing support (Parent Ex. B at pp. 1, 14-15).  In addition to the special class instruction the student would receive in the 15:1 classroom, the district school psychologist who attended the June 2022 CSE meeting testified that the CSE recommended the five sessions per week of SETSS for "some pre-teaching, reteaching," and to provide "added support" so that the student could best understand the material presented in the 15:1 special classes (Tr. pp. 84, 87-88; Parent Ex. B at p. 22).[4]

To address the student's management needs, the CSE recommended the following supports: graphic organizers; VAKI (visual/auditory/kinesthetic/tactile modalities of learning); teacher modeling; peer to peer group work; visual, gestural or verbal cues; use of highlighters and flashcards; repetition; and checks for understanding (Parent Ex. B at p. 5).  The IEP indicated that due to the student's language deficits, his needs in fine and gross motor coordination, delays in reading, social skills and social/emotional functioning, he required "specially designed instruction in a special education setting" (id. at p. 6).  In addition, the CSE recommended numerous testing accommodations for the student including extended time, separate location, and tests and test directions read aloud, clarified and repeated as needed (id. at p. 17).

To further support the student's needs, the CSE also recommended that the student receive the related services of one 40-minute session per week of individual counseling, two 40-minute sessions per week of individual speech-language therapy, one 40-minute session per week of group speech-language therapy, and three 40-minute sessions per week of individual OT (Parent Ex. B at p. 15).  Regarding related services, the parents contend on appeal that the IHO failed to consider the lack of a parent counseling and training recommendation.  State regulations require that an IEP indicate the extent to which parent counseling and training will be provided to parents, when appropriate (8 NYCRR 200.4[d][2][v][b][5]).  State regulations further provide for the provision of parent counseling and training for the purpose of enabling parents of students with autism to perform appropriate follow-up intervention activities at home (8 NYCRR 200.13[d]).  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]).  The Second Circuit has consistently held that the failure to include parent counseling and training on an IEP does not usually constitute a denial of a FAPE (see L.O. v. New York City Department of Education, 822 F.3d 95, 122-23 [2d Cir. 2016]; M.W. v. N.Y.C. Dep't of Educ., 725 F.3d 131, 141-42 [2d Cir. 2013]; R.E., 694 F.3d at 191; see also A.M. v. New York City Dep't of Educ., 845 F.3d 523, 538 [2d Cir. 2017]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 32 [2d Cir. Mar. 16, 2016]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 39 [2d Cir. Mar. 19, 2015]; but see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 80-82 [2d Cir. 2014]).  Here, it is noted that the student is not classified as a student with autism (Parent Ex. B at p. 1).  Moreover, the documentation available to and the discussion held at the June 2022 CSE did not indicate that the parents sought or required parent counseling and training for the student to receive a FAPE (see Parent Ex. B at pp. 1-5; Dist. Exs. 15-17).  Therefore, the evidence in the hearing record does not support a finding that parent counseling and training was a required service and that the lack of the recommendation, in and of itself, rose to the level of a denial of FAPE.

Next, the parents assert on appeal that the IHO failed to determine that the June 2022 CSE did not recommend an appropriate transition plan for the student.  Specifically, in the memorandum of law, the parents argue that the transition plan and corresponding goals were deficient because the IEP lacked the transition services needed to assist the student in reaching his goals in light of the student's reading deficits, and that the IEP did not adequately describe the student's post-school activities (Parent Mem. of Law at pp. 13-14).

Review of the June 2022 IEP shows that the June 2022 CSE considered and included recent transition information about the student, which the special education teacher who attended the meeting obtained from a June 2022 parent interview (compare Parent Ex. B at pp. 2-5, 21, with Dist. Ex. 15).  Generally, at the time of the June 2022 CSE meeting, the student was in a "pre-[R]egent[s] track," would take three specific Regents exams during the 2022-23 school year, and was preparing to obtain a "NYS academic diploma" (Parent Ex. B at p. 3).  The IEP also indicated that as the "vocational component" of the student's nonpublic school program, he was "part of a class" that was learning to use PowerPoint (id.).  The present levels of performance indicated that after graduation, the student planned on living at home, and his family reportedly wanted him to attend college (id.).  The IEP reflected that the student had expressed an interest in becoming a teacher, though the parent was unsure if that was a "good career fit" given his expressive language needs (id.).

Regarding the June 2022 IEP post-secondary goals, after high school graduation, the goal was for the student to "attend college/take college classes, or seek employment directly in his community"; specifically, that the student would be employed part or full time in a field yet to be determined, noting that he was interested in becoming a teacher (Parent Ex. B at pp. 6-7).  The IEP indicated that the student would use a daily planner to keep his schedule organized, take part in community activities, and manage his personal finances by maintaining a weekly budget (id. at p. 7).  The CSE identified the student's transition needs as needing to fulfill all the requirements for a New York State diploma, "pass[ing] the minimum number of Regent examinations," attend[ing] "tutoring sessions/test prep sessions" in order to prepare for State examinations, and meeting with his guidance counselor on a regular basis in order keep track of his "credits/exam record/progress" (id.).  Additionally, the IEP reported that the student would benefit from: identifying "realistic personal educational, and work goals"; using a daily planner or visual schedule to keep classes and school events organized and orderly; using an appropriate "interest inventory to explore work areas of possible interest"; demonstrating improved eye contact with peers and adults; participating in mock interviews, completing mock job applications, and exploring two-year college and certificate programs to learn about post-high school opportunities, all skills to which the June CSE developed corresponding annual goals (id. at pp. 7, 10).  A review of the student's transition activities shows that the student would attend Regents preparation course and tutoring sessions to support daily academics, gain academic credit and pass the examinations needed for a "NYS academic diploma," participate in OT, speech therapy, and counseling as recommended, and investigate and participate in community and school activities in his areas of interest; all of which are activities corresponding to the student's post-secondary goals (id. at p. 17).

As for the parents' concern that the student's transition plan was insufficient due to the failure to address his reading deficit, review of the IEP as a whole shows that the student's reading needs were appropriately addressed by the annual reading goals, daily 15:1 special class ELA instruction, and one daily period of SETSS to address, in part, his reading needs (Parent Ex. B at pp. 7, 12-15).  As such, the evidence in the hearing record does not support the parents' position on appeal that the IHO erred in failing to find that deficits in the student's transition planning rose to the level of a denial of a FAPE.

Overall, the evidence in the hearing record shows that the June 2022 CSE recommended special education programming that was reasonably calculated to confer educational benefit and enable the student to make progress.  While the parent's desire for the student to be placed in a smaller setting with more individualized attention is understandable, review of the June 2022 IEP shows that it would have provided sufficient services, including small group instruction and individual related services, and appropriate transition planning to address his needs.[5]  Therefore, the evidence does not provide a basis to disturb the IHO's determination that the district offered the student a FAPE for the 2022-23 school year.

D. Implementation/Assigned School

Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88).  The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]).  However, a district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]).  The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP" (M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. 2015]).  Such challenges must be "tethered" to actual mandates in the student's IEP (see Y.F., 659 Fed. App'x at 5).  Additionally, the Second Circuit indicated that such challenges are only appropriate, if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244).  In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP (see Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]).  Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate (K.F., 2016 WL 3981370, at *13; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016]).

Regarding the parents' ability to tour an 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]).[6] [7]

Here, the parents' claims regarding the assigned public school are speculative as the student never attended the assigned public school site pursuant to the June 2022 IEP.  Any conclusion that the district would not have implemented the student's IEP or that the assigned public school site could not meet the student's needs would necessarily be based on impermissible speculation, and the district was not obligated to present retrospective evidence at the impartial hearing regarding implementation of the student's programming under the IEP or to refute the parent's claims (R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]; F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 9 [2d Cir. Jan. 8, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 87 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 187 & n.3]).

Moreover, even if the parents' assertions regarding the assigned school were not speculative, the hearing record does not support the allegation that the student's IEP could not have been implemented had he attended the district's placement.  The assistant principal of special education at the assigned public-school site testified that the student's June 2022 IEP could have been implemented there and that the school had a seat available for the student for the 2022-23 school year (Dist. Ex. 18 ¶¶ 2, 5-6).

Accordingly, upon my independent review of the evidence in the hearing record, I find that there is no reason to disturb the IHO's determination that the district offered the student a FAPE for the 2022-23 school year.  As such, there is no need to address whether the unilateral placement is appropriate or whether equitable considerations favor the parents.

VII. Conclusion

Having found that the IHO correctly determined that the district offered the student a FAPE for the 2022-23 school year, the necessary inquiry is at an end.  I decline to address whether the unilateral placement was appropriate or review the IHO's determinations regarding equitable considerations.

THE APPEAL IS DISMISSED.