I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied, in part, their request that respondent (the district) fund the student's educational program for the 2024-25 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 student in this matter has received a diagnosis of autism spectrum disorder (ASD) (Parent Exs. E at p. 7; X ¶ 2; Y at pp. 8-9; Dist. Ex. 1 at p. 6).  Beginning in December 2015, the student received Early Intervention (EI) services that consisted of applied behavior analysis (ABA) services, speech-language therapy, and occupational therapy (OT) (Parent Ex. X ¶ 3).  The student attended a mainstream preschool with a 1:1 special education itinerant teacher (SEIT), speech-language-therapy, OT, and physical therapy (PT) (id.).  While in preschool, the student also received home-based speech-language therapy, and home-based ABA services delivered by Children First Speech Language Pathology and Psychology, PLLC (Children First) (Parent Exs. E at p. 2; W ¶ 8; X ¶ 3).[1]  The student began attending The Manhattan Childrens Center (MCC) in July 2019 (kindergarten) and continued through to the 2024-25 school year (Parent Ex. Y at p. 2; Dist. Ex. 1 at pp. 1-2).[2]

In a letter dated June 14, 2024, the parent reminded the district that a CSE meeting had not yet been held for the student for the 2024-25 school year, and informed the district of the parents' intent to place the student at MCC for the 2024-25 school year and "hold the district financially responsible" (Parent Ex. C at p. 1).

The parents electronically signed a tuition agreement with MCC on June 26, 2024 for the term of July 2024 through June 2025 (see generally Parent Ex. L).

On July 9, 2024, the CSE convened and continued to find the student eligible for special education services as a student with autism (see generally Dist. Ex. 1).[3]  The July 2024 CSE recommended a 12-month special education program of three periods per week of adapted physical education and a full time 8:1+1 special class placement in a district specialized school (Dist. Ex. 1 at pp. 27, 29, 33-34).  Additionally, the July 2024 CSE recommended related services that consisted of two 30-minute sessions per week of individual OT; two 30-minute sessions per week of OT in a group of two; two 30-minute sessions per week of individual speech-language therapy; three 30-minute sessions per week of speech-language therapy in a group of two; and 60 minutes per month of parent counseling and training (id. at pp. 28, 34).  Individual paraprofessional services for behavioral support was also recommended for the student (id. at p. 28).  Lastly, the July 2024 CSE recommended special transportation accommodations/services of transportation from the closest safe curb location to school (id. at pp. 33, 35).[4]

In a letter dated August 2, 2024, the parents notified the district of their disagreement with the July 2024 IEP and informed the district that they had not received a school location letter, and, therefore, intended to place the student at MCC for the 2024-25 school year (see Parent Ex. I).

A. Due Process Complaint Notice

In an amended due process complaint notice dated October 16, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A).[5]  As an initial matter, the parents requested pendency in an unappealed decision dated January 8, 2024 which consisted of the district funding tuition and costs at MCC; up to 18 hours per week of home and community based 1:1 ABA services; twice monthly supervision meetings with a board certified behavior analyst (BCBA) supervisor; one hour per week of 1:1 speech-language therapy; monthly supervisory and interdisciplinary meetings; and transportation expenses (id. at p. 2).

In connection with the July 2024 IEP and the 2024-25 school year, the parents alleged that the district failed both procedurally and substantively to offer the student a FAPE in and among the following ways, the district: failed to conduct a functional behavioral assessment (FBA) and/or develop a behavioral intervention plan (BIP); failed to observe and obtain knowledge of the student's needs prior to the CSE meeting; failed to assess and conduct evaluations of the student prior to the CSE meeting; failed to consider private evaluations of the student; failed to meaningfully communicate with the parents; failed to conduct a timely CSE meeting for the 2024-25 school year; included inaccurate information or other errors in the July 2024 IEP such as not properly identifying the student's need for consistency in programming and generalization; failed to develop measurable annual goals or goals that would address the student's needs; failed to recommend 1:1 instruction, individual parent counseling and training, and adequate "levels and frequencies" for the related services;; failed to recommend ABA instruction; and recommended an inappropriate assigned school (Parent Ex. A at pp. 3-12).  The parents alleged that MCC was reasonably calculated for the student to obtain educational benefits, and equitable considerations favored an award of reimbursement (id. at p. 12).

As relief, the parent sought district funding for the costs of the student's tuition at MCC; up to 18 hours per week of home and community based 1:1 ABA services; twice monthly supervision meetings with the BCBA supervisor and other therapists; one hour per week of 1:1 speech-language therapy by a PROMPT trained speech pathologist; monthly supervisory and interdisciplinary meetings; and transportation expenses (Parent Ex. A at p. 12).  Additionally, the parents sought compensatory education services for any services that the district did not provide to the student including the student's "pendency entitlements" (id.).

B. Impartial Hearing Officer Decision

After two status conferences on September 9, 2024 and October 10, 2024, an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on December 2, 2024 and concluded on December 9, 2024 after three days of proceedings (Sept. 9, 2024 Tr. pp. 1-7; Oct. 10, 2024 Tr. pp. 8-13; Dec. 2, 2024 Tr. pp. 6-41; Dec. 5, 2024 Tr. pp. 42-56; Dec. 9, 2024 Tr. pp. 43-60).[6]  In a decision dated January 10, 2025, the IHO found that the district failed to offer the student a FAPE for the 2024-25 school year, that the parents met their burden of proving that MCC was an appropriate unilateral placement for the student, and that equitable considerations weighed against granting the parents' request for district funding of the student's home-based ABA services (IHO Decision at pp. 4-7).

With respect to the district's burden, the IHO found that the July 2024 IEP was developed "over a week" after the recommended 12-month services were set to start and, therefore, no IEP was in place for the student at the beginning of the 2024-25 school year, which constituted a denial of a FAPE to the student (IHO Decision at pp. 3-4).  In connection with the parents' burden to demonstrate the appropriateness of MCC, the IHO relied on the testimony of the MCC director of education (MCC director) with respect to the student's goals and his progress towards those goals, as well as progress he made academically and with his related services (id. at p. 5).

The IHO then discussed equitable considerations, as they applied to the parents' request for home-based ABA services and addressed the district's argument that it was not required to fund the services because they were for the generalization of the student's skills and were not necessary for the student's education (IHO Decision at p. 5).  The IHO noted the testimony of the parents' witnesses that the home-based ABA services addressed the home and community environments (id. at p. 6).  The IHO concluded that the student's needs were met by the MCC program, and the district was not required to fund the ABA services "as part of their offer of FAPE" (id.).  Lastly, the IHO found no evidence in the hearing record of a contract with the ABA provider detailing the duration or frequency of the services provided by Children First or a rate for the services (id. at p. 7).

Ultimately, the IHO ordered the district reimburse the parents for payments toward the student's MCC tuition in the amount of $41,437.50, and to directly pay MCC the remainder of any tuition, less any amounts paid under pendency, not to exceed $138,462.50 for the student's attendance at MCC for the 2024-25 school year (IHO Decision at p. 7).

IV. Appeal for State-Level Review

The parents appeal, alleging that the IHO erred in denying funding for the student's home and community-based ABA services.  The parents assert that the evidence in the hearing record establishes that the ABA services were appropriate for the student.  Alternatively, the parents request a remand to the IHO to "determine what level of supplemental, home and community-based ABA services, if any, was needed to enable [the student] to receive a FAPE."  The parents argue that the IHO "presupposed" that the student's home-based ABA services were for generalization or maximization and did not consider whether the home-based services were necessary for the student to receive a FAPE.  According to the parents, the student required the home-based services, in addition to his school program at MCC, to work on activities of daily living (ADL) skills that the parent asserts could not be easily addressed in a school setting, elopement and other dangerous behaviors, and for the development of the student's independence.  The parents further assert that the student required the home-based services in order to remain at MCC and not be moved to a more restrictive setting.  The parents submitted additional evidence to be included in the hearing record.[7]

In an answer, the district generally denies the material allegations contained in the request for review.  The district asserts that the IHO correctly found that the home-based ABA services were duplicative of the MCC program and only served to maximize the student's education.[8]

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]).[9]

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

Turning to the parents' assertion on appeal that the IHO failed to award home-based ABA services, parents may generally obtain outside services for a student in addition to a private school placement as part of a unilateral placement (see C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 838-39 [2d Cir. 2014] [finding the unilateral placement appropriate because, among other reasons, parents need not show that a "'private placement furnishes every special service necessary'" and the parents had privately secured the required related services that the unilateral placement did not provide], quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 365 [2d Cir. 2006]).  The IHO found that although there was a benefit to the student's home-based ABA services, the district was not required to fund the services as they exceeded those required for a FAPE (IHO Decision at p. 6).  Furthermore, the IHO found that the student's needs were adequately met through the MCC program (id.).  Accordingly, the issue of whether the home-based ABA services constituted maximization of services is an equitable consideration.

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

Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]).  An IHO may consider evidence regarding the reasonableness of the costs of the program or whether any segregable costs exceeded the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100).  More specifically, while parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA.  To the contrary, "[r]eimbursement 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 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).  Accordingly, while a parent should not be denied reimbursement for an appropriate program due to the fact that the program provides benefits in addition to those required for the student to receive educational benefits, a reduction from full reimbursement may be considered where a unilateral placement provides services beyond those required to address a student's educational needs (L.K., 674 Fed. App'x at 101; see C.B. v. Garden Grove Unified Sch. Dist., 635 F. 3d 1155, 1160 [9th Cir. 2011] [indicating that "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced"]; Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 [5th Cir. 1986] ["The Burlington rule is not so narrow as to permit reimbursement only when the [unilateral] placement chosen by the parent is found to be the exact proper placement required under the Act.  Conversely, when [the student] was at the [unilateral placement], he may have received more 'benefit' than the EAHCA [the predecessor statute to the IDEA] requires"]).

Additionally, as the IHO noted in discussing generalization of skills, courts have indicated that school districts are not required, as a matter of course, to design educational programs to address a student's difficulties in generalizing skills to other settings outside of the school environment, particularly where it is determined that the student is otherwise likely to make progress, at least in the classroom setting (see, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; L.K., 2016 WL 899321, at *8-*10); Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; see IHO Decision at pp. 5-6).[10]

Initially, the parents assert that the IHO failed to consider the home-based ABA services as part of the student's unilateral placement and, as such, "never grappled with any of the evidence pertaining to [the student's] home and community based ABA services, the essential services they provide[d], and the role th[o]se services play[ed] in allowing [the student] to remain at MCC, in his least restrictive environment."  Although the IHO did not address the appropriateness of the home-based services in finding that the student's placement at MCC was appropriate, the IHO specifically noted that "there [wa]s clearly a benefit to the work done with the [s]tudent outside of school" (IHP Decision at p. 6).  Additionally, review of the IHO decision shows that the IHO reviewed the testimony of the director of Children First, the testimony of the BCBA employed by Children First, and the testimony of the private psychologist in concluding that the services provided at  home exceeded what was required of the district for the provision of  a FAPE to the student (IHO Decision at pp. 6-7; see Dec. 5, 2024 Tr. at pp. 28, 36-38, 48; Dec. 9. 2024 Tr. pp. 50-51; Parent Exs. V; W; Z).  Accordingly, the parent's assertion that the IHO failed to consider the home-based services and did not grapple with the evidence is not supported by a review of the decision.

Turning to the merits of the parents' dispute, the parents argue that the student needs the home-based ABA services in addition to the MCC program to work on his "pervasive" ADL challenges including personal hygiene, toileting, cooking, and bathing.  In addition, the parents seek the home-based ABA services to decrease the student's "elopement and other dangerous behaviors."  Further, the services are requested for the student to learn to be independent and to prevent the student from being placed in a more restrictive setting than MCC.  The parents assert that the student needs both ABA instruction in school and after school to ensure his progress at school.[11]  However, the district argues that the home-based ABA services were "largely duplicative" of the MCC program and constituted a maximization of services that were not required for a FAPE.

Although the parents do not identify parent counseling and training separate from the home-based ABA for the student, the evidence shows that the home and community-based ABA services included some elements of what would constitute parent counseling and training (Parent Exs. E at p. 6; W ¶ 7).[12]  The July 2024 IEP recommended one 60-minute session per month of group parent counseling and training (Dist. Ex. 1 at p. 28).  There is evidence in the hearing record that MCC provided parent counseling and training, as the MCC educational progress report from July 2023 through December 2023, stated that to ensure consistency in the home and school, at a minimum, MCC offered one hour per week for parent observation in the classroom, a home visit twice per year, and "[p]arent [e]ducation [w]orkshop [s]eries" once per month with additional services if requested by MCC or the parents (Parent Exs. H at p. 6; K at p. 7).  Additionally, the MCC educational progress report stated that "[a]ppropriate goals and objectives come from parent participation in the program" (Parent Ex. H at p. 6).  However, since there is no specific request for additional home-based parent counseling and training, for purposes of discussion, the home-based ABA services will only be considered as a service delivered directly to the student.

In examining whether the home-based ABA instruction constituted services that exceeded what was required to provide the student with a FAPE, the student's needs and programming at MCC during the 2024-25 school year must be considered.

As reported in the student's July 9, 2024 present levels of performance at MCC, the student exhibited identified needs in the areas of academic skills, sensory processing, self-care, communication, play skills, emotional regulation, self-regulation, recall, turn taking with peers, community safety, and classroom skills (see Parent Ex. H at pp. 4-12).  In terms of academics, the student had "strong decoding, spelling, and grammar skills" and was learning to "respond to a variety of Wh-questions, identify the main idea of a text and supporting details, sequence and recall details from a text, and write a summary of a story with response prompts" (id. at p. 4).  In math, the student was learning multidigit multiplication, geometry concepts, and one-step multiplication and division word problems (id.).  The student communicated using phrases and simple sentences, and his spontaneous language consisted primarily of rote and repetitive phrases and sentences (id. at p. 5).  Additionally, the student worked on improving hygiene and organization skills, as well as bilateral coordination and endurance to participate in school activities (id. at p. 4).

Regarding behavior and social skills, the student was noted to require frequent redirection to tasks and scheduled reinforcement (Parent Ex. H at p. 4).  Additionally, the student "demonstrate[d] an emerging interest in his peers" and was learning, with prompts, to invite peers to join an activity and orient to his peers during conversations (id.).  Further, the student was learning to identify his emotions and select tools to regulate himself when feeling frustrated (id.).  Results of an FBA and corresponding BIP indicated that the student engaged in elopement to gain access to tangible reinforcements, and unsafe behaviors to gain access to a preferred item (id. at p. 12).  MCC identified the "tactics" used to address these behaviors, and the data showing a decrease in the frequency the behaviors were exhibited with those tactics in place (id.).

To address the student's needs for the 2024-25 school year, MCC developed goals in the areas of academic literacy; verbal behavior; self-management; social skills; behavior; sensory integration and regulation; ADL and self-care skills; gross motor coordination; fine motor, visual motor, and perceptual skills; receptive, expressive, and pragmatic language; community safety; and independent and cooperative play skills (Parent Ex. H at pp. 13-22).  Specifically, regarding academic skills, goals were developed to improve the student's reading and comprehension, written communication, and math computation skills, as well as his knowledge of science and social studies concepts (id. at pp. 13-14).  The student's verbal behavior goals were developed to address the student's listening and speaker skills and improving his conversation skills with adults (id. at pp. 14-15).  Self-management and self-help skill goals were designed to improve the student's ability to identify emotions and corresponding strategies for self-regulation, and complete self-care routines (id. at p. 15).  To improve community safety skills, MCC developed goals to improve the student's ability to identify people he could interact with in the community and the behaviors he could engage in, and identify his location when walking in the community (id. at pp. 15-16).  MCC developed goals for the student to improve his social communication and interaction skills with peers, and in the areas of daily living and self-care skills, the goals included four short-term objectives and/or benchmarks to address the student's need to improve his "self-care skills for greater independence in school and home environments" (id. at pp. 16, 18-19).  Additionally, goals were developed to improve the student's receptive ability to identify the main idea of short stories and thoughts of others, expressive ability to recall immediate past events and respond to "why" questions in pictures (id. at p. 21).  To improve pragmatic language and play skills, MCC designed goals to increase the student's conversation skills with adults and peers, and improve play skills including solving peer conflicts (id. at pp. 21-22).  With respect to sensory integration and regulation, MCC developed a goal to improve the student's ability to use sensory processing to understand and effectively interact with people and objects in school and home environments (id. at p. 18).  The goals developed for gross motor coordination were to improve the student's motor planning and bilateral coordination "to enhance [the] quality of movement and efficient organization of self for effective participation in school and home activities" (id. at p. 19).  Further, the student's goals for fine motor, visual motor, and visual perceptual skills were to also help the student both in school and at home (id.).

Regarding the student's programming at MCC, the student attended a class comprised of eight students, with six adults in the room including one lead teacher, one head ABA instructor, and four ABA instructors, with peers that received both 1:1 and 2:1 instruction (Parent Ex. V ¶ 27; see Parent Ex. O).[13]  According to the testimony of the MCC director, MCC provided a "highly individualized program of ABA" services wherein the student received both 1:1 and 2:1 ABA instruction (see Parent Ex. O; Parent Ex. V ¶¶ 12-13, 27, 31).  The student's educational progress report from July 2023 to December 2023 noted that the student received instruction in five domains: "verbal behavior (receptive and expressive communication), social skills, academic skills, community of reinforcers, and self-management behaviors" (Parent Ex. H at p. 6).

With respect to the student's progress at MCC, the MCC director testified that the student made progress with the goals that were developed for the 2024-25 school year, particularly on his math, language, and social skills goals (Dec. 2, 2024 Tr. pp. 25-27; Parent Ex. V ¶¶ 40-42).  The MCC director further indicated that within OT sessions, the student had demonstrated progress in his social/emotional, self-care, gross motor, and academic typing skills; and in speech-language therapy the student made progress in identifying the main idea of a short story (Parent Ex. V ¶¶ 42, 44).

The 2024-25 MCC program description noted that collaboration with home-based providers allowed MCC "to promote generalization of skills" in the school and home environments, and the MCC director testified that MCC collaborated closely with the student's at-home ABA program (Dec. 2, 2024 Tr. p. 28; Parent Ex. K at p. 8).  The BCBA from Children First testified that the home-based providers were in "constant collaboration with [MCC]" (Dec. 5, 2024 Tr. pp. 47, 50; see Parent Ex. W ¶¶ 1-2).  The Children First BCBA testified that there were behavioral, community, social, and parent training goals as part of the student's home and community based ABA program, which required teaching "beyond school hours" to prevent regression, which was "not to generalize skills" but to allow the student to be "more available" for learning in school (Dec. 5, 2024 Tr. p. 49).  According to the BCBA's testimony, the student's home-based ABA services targeted social and behavioral goals that were not directly addressed at MCC including daily living skills and following self-care routines (id.).

The Children First BCBA testified that she had worked with the student since September 2022, and during the 2024-25 school year, she provided the student with six hours per week of home-based ABA services, and the student received four hours of home-based ABA services per week from another ABA provider (Parent Ex. W ¶¶ 6-7).  The BCBA testified that during home-based ABA instruction, she and her colleague worked on improving the student's ADL skills, promoting socialization, teaching some leisure skills, increasing pragmatic language, working on compliance and task completion, and promoting and supporting the student's growing independence, many if not all of which were skills addressed by MCC (compare Parent Ex. W ¶¶ 7, 10-12, with Parent Ex. H at pp. 13-22).

Specifically, the BCBA testified that the student engaged in high rates of escape behavior, although over "the last year," that behavior had decreased in frequency, and review of the MCC 2024-25 classroom goals shows that MCC developed goals for the student to decrease this behavior during the 2024-25 school year (Parent Exs. H at pp. 12, 17; W ¶ 10).[14]  According to the Children First BCBA, the student was working on conversation skills, such as commenting, asking questions, and sharing information reciprocally, skills also addressed at MCC (compare Parent Ex. W ¶ 12, with Parent Ex. H at pp. 14-15, 16, 21).  ADL related skills targeted at home to improve the student's skills at getting dressed, completing routines, and toileting, were similar to skills the student performed at MCC (compare Parent Ex. W ¶ 17, with Parent Ex. H at pp. 15, 18).  In both settings the student was working on recognizing how he was feeling, why he felt that way, and independently choosing a self-regulation strategy to help regulate and self-direct from perseverative thoughts and speech when he was upset (compare Parent Ex. W ¶¶ 11, 15, with Parent Ex. H at pp. 15, 18).  Additionally, the Children First BCBA noted that the student had "deficits with auditory processing and working memory, and struggle[d] with joining conversations and socialization," which were needs also addressed at MCC (compare Parent Ex. W ¶¶ 11, 15, with Parent Ex. H at pp. 14-15, 16, 21).

The Children First BCBA opined that the student's "combined programming" was what allowed him to make progress and sustain the progress he was making (Dec. 5, 2024 Tr. pp. 50-51).  The BCBA further testified that the home-based ABA program allowed more parental involvement to support the student's progress (Dec. 5, 2024 Tr. pp. 49-50).  According to the student's July 2024 Children First progress report, reflecting the progress the student made during the 2023-24 school year, the BCBA recommended that the student continued to receive after school ABA services "to facilitate progress towards inclusion in his school setting, to generalize skills, target areas where [the student] [wa]s still significantly behind his peers, parent training, as well as behaviors and skills particular to the home community environments" (Parent Ex. E at p. 6).

The MCC director testified that with regard to progress seen in the classroom as a result of the home-based ABA instruction, the student made improvements in identifying his emotional state, as previously he had difficulty identifying when he was angry, frustrated, or feeling nervous or anxious, although he still required prompts to engage in a regulation strategy (Dec. 2, 2024 Tr. pp. 28-29).  The MCC director testified that the student's home-based ABA services addressed his ADL challenges, social skills, communication skills, behaviors, toileting, and his need to learn to become more independent, and with the "dual program" of MCC programming and home-based ABA services the student had made "steady progress at school" (Parent Ex. V ¶ 45).  However, in making her recommendation for continued services, she noted that MCC was an appropriate placement for the student because MCC met the student's "academic, communication, social, self-management and behavioral needs within MCC's ABA setting and through (MCC's) transdisciplinary model" (Parent Ex. V ¶ 48).  When asked to explain how the student made progress in the classroom based on the at-home program, the MCC director testified that the critical aspect they saw was the student's identification of his emotional states and use of strategies to make him available for learning; however, she also testified that the student's emotional needs were addressed across both the home and school settings (Dec. 2, 2024 Tr. pp. 28-29, 30).  Similarly, the clinical psychologist who conducted a neuropsychological evaluation of the student in November 2024 concluded in her draft report that the student should continue placement in a school "grounded in ABA principles" and receive home-based ABA "to further consolidate skills across environments" (Parent Exs. Y at pp. 9-10; Z ¶ 17).  During her testimony, the clinical psychologist opined that the student required home instruction, explaining that "there [we]re a host of skills that [we]re worked on in the home setting that [we]re important to [the student's] functioning in other settings," such as frustration tolerance, increasing independence in ADL skills, and the ability to remain seated for longer periods of time (Dec. 9, 2024 Tr. pp. 50-51).  However, she testified that the student received instruction in those areas in the classroom setting as well (id. at p. 51).

Despite the evidence of progress the student made at MCC, in this case, the parents argue that the student required up to ten hours per week of home-based ABA services.  However, the hearing record includes some inconsistent testimony as to the purpose or necessity of the home-based ABA services for the student's continued progress.  The student's mother testified that her son needed the home-based ABA services to make progress with his behaviors and ADL skills in the home and at school; to maintain the progress he had already made in school; and increase his independence as he got older (Parent Ex. X ¶¶ 45-46).   As noted above, the MCC director testified that MCC collaborated with the student's home-based program and she identified emotional regulation as something that benefitted the student's classroom performance and that it was worked on both in school and at home (Dec. 2, 2024 Tr. pp. 28-30).  Additionally, the neuropsychological evaluation report included a recommendation for home-based services to consolidate skills across environments (Parent Ex. Y at pp. 9-10).

Here, the program at MCC addressed the student's difficulties with ADL skills, language skills, self-regulation, and social skills and the evidence shows that the student made progress (Dec. 2, 2024 Tr. pp. 25-27; Parent Ex. V ¶¶ 40-42, 44).  Additionally, the student presented with some behaviors that interfered with his learning, as discussed above, which MCC addressed by providing the student with an FBA and a BIP (Parent Ex. H at p. 12).  Further, as part of his programming MCC developed goals for the student and provided related services, which, while not in dispute on appeal, relate to the totality of the parents' unilateral placement consisting of MCC and the student's home-based ABA services (see Parent Exs. E; H at pp. 4-22; S; V; W; X).  Overall, the hearing record indicates that MCC addressed all of the student's areas of need, some of which were also addressed in the student's home-based ABA program (Req. for Rev. ¶ 12; see Dec. 2, 2024 Tr. pp. 25-27, 38-39; Parent Exs. X ¶¶ 7-19; V ¶¶ 14, 20, 31, 33-44).  Accordingly, the evidence in the hearing record indicates that the student was receiving primarily individual instruction utilizing the principles of ABA at MCC.  Further, the hearing record indicates that the student made progress across all domains which was carrying over into his home and community settings.  As such, the evidence does not tip in favor of the parents' argument  that district was required to provide the student with a home-based ABA program in addition to funding the MCC programming (see Y.D. v. New York City Dep't of Educ., 2017 WL 1051129, at *8 [S.D.N.Y. Mar. 20, 2017] [finding out-of-school services were unnecessary to ensure the student made progress in the classroom and would, instead, be aimed at managing behaviors outside the school day]; R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *15 [S.D.N.Y. Sept. 27, 2013] ["While the record indicates that [the student] may have benefited from home-based services, it contains no indication that such services were necessary"], aff'd, 589 Fed. App'x 572 [2d Cir. Oct. 29, 2014]).  While the home-based ABA services may have been beneficial, they were not necessary in order to provide the student with services that were reasonably calculated to enable the student to receive educational benefits, the standard enunciated in Rowley and Endrew F.  As noted above, the IDEA ensures the provision of an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132).[15]

Based on the foregoing, I find IHO correctly concluded that the district was not required to fund the student's home-based ABA services in addition to the unilateral placement at MCC.[16]

VII. Conclusion

There is insufficient basis in the hearing record to disturb the IHO's determination that the home-based ABA services exceeded the level of services the student required to receive a FAPE and that, therefore, the district was not required to fund them as part of the unilateral placement of the student.

THE APPEAL IS DISMISSED.