I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which found that respondent (the district) offered her son appropriate programming and denied her request for funding of her son's tuition at the Ha'Or Beacon School, also known as Yeshiva Ohr Dovid School, (Beacon) for the 2023-24 school year.  The district cross appeals from a portion of the IHO's decision.  The appeal must be dismissed.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

The parties' familiarity with the facts and procedural history of the case and the IHO's decision is presumed and will not be recited here in detail.[1]  The student has attended nonpublic schools since prekindergarten and was initially referred to the CSE for evaluation at the end of the 2021-22 school year (fifth grade) by his parent due to concerns about his academic ability and social/emotional behavior (Dist. Exs. 3 at p. 1; 4 at p. 1).  The district completed a psychoeducational evaluation, a speech and language evaluation, and an occupational therapy (OT) evaluation of the student, and a social history between July 25, 2022 and August 29, 2022 (see Dist. Exs. 3-7).

A CSE convened on January 24, 2023 to determine the student's initial eligibility for special education (Dist. Exs. 1 at p. 1; 2 at p. 1; 8 at p. 1).  At that time, the student was 11 years old and attending sixth grade at a nonpublic school (see Parent Ex. G; Dist. Ex. 1 at p. 1).  He presented with difficulties in academic, social/emotional, fine motor, sensory processing, behavioral, and executive functioning skills (see Dist. Ex. 1 at pp. 1-4).  The January 2023 CSE found the student eligible for special education as a student with an other health impairment and developed an IEP for the student with an implementation date of September 7, 2023 (id. at p. 1).[2]  The January 2023 CSE recommended 10-month programming consisting of 12:1+1 special class instruction for 10 periods per week of English language arts (ELA), 10 periods per week of math, three periods per week of science, and two periods per week of social studies, with related services of one 30-minute session per week of individual OT, one 30-minute session per week of group OT, one 30-minute session per week of individual counseling, and one 30-minute session per week of group counseling (id. at pp. 21-22, 23).  The January 2023 CSE also recommended that the student receive special transportation, which was described in the IEP as "[t]ransportation from the closest safe curb location to school…[d]oor to [d]oor busing" due to "[b]ehavioral [c]oncerns" (id. at p. 26).

By prior written notice, dated August 16, 2023, the district summarized the recommendations of the January 2023 CSE (Dist. Ex. 2 at pp. 1-3).  In a school location letter dated August 16, 2023, the district identified the public school site to which the student was assigned to attend for the 2023-24 school year (Dist. Ex. 8 at p. 1).[3]

By letter dated September 1, 2023, the parent provided the district with  written notice of her intent to remove the student from public school because the "class size recommended in the IEP and the size of the school placement offered appear[ed] to be too large to provide an appropriate education for [the student] for the 2023-2024 school year" (Parent Ex. C at p. 1).  The parent further advised that she intended to unilaterally enroll the student at Beacon and seek public funding for that placement (id.).  On September 1, 2023, the parent signed an enrollment contract with Beacon for the 2023-24 school year, which was countersigned that same day (Parent Ex. D at p. 1).[4]

A. Due Process Complaint Notice

In a due process complaint notice dated September 23, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A at p. 1).  The parent alleged that the CSE failed to recommend an appropriate class size, as "[t]he student needed a special class full time and with less than 12 students" (id.).  According to the parent, the class size recommended on the student's IEP was too large for the student (id.).  The parent also alleged that the district failed to timely provide the parent with a school location letter, and failed to recommend an appropriate public-school site, as the type of public school "recommended in the IEP would have been inappropriate and [would] not [have] addressed the student['s] academic, social, emotional and behavioral needs" (id.).  The parent further asserted that Beacon was an appropriate unilateral placement for the student for the 2023-24 school year (id. at p. 2).  As relief, the parent requested a finding that the student's 2023-24 school year IEP was not appropriate and an order directing the district to fund the cost of tuition and related services for the student's placement at Beacon (id.).

B. Impartial Hearing and Impartial Hearing Officer Decision

A prehearing conference was held on October 29, 2024 (Tr. pp. 1-6).  An impartial hearing then convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on December 13, 2024 and concluded the same day (Tr. pp. 7-44).  In a decision dated February 6, 2025, the IHO noted that the district relied solely on documentary evidence for presentation of its case and based on a review of the documentary evidence found the district offered the student a FAPE for the 2023-24 school year (IHO Decision at pp. 6-16).  Specifically, the IHO determined that neither a functional behavioral assessment (FBA) of the student nor a behavioral intervention plan (BIP) were required by law, the district "complied with the procedural requirements set forth in the IDEA," the CSE considered recent evaluations, and the recommended "12:1+1 special class, in conjunction with the recommended related services, was an appropriate placement for [the s]tudent (i.e., [the IHO did] not find that [the s]tudent's management needs [we]re intensive or highly intensive for the [2023-24 school year]" (id. at pp. 10, 12-14).  The IHO further found that "[n]ot only d[id] the IEP include appropriate goals, . . . it also contain[ed] management needs, including graphic organizer, redirection/focusing prompts, long assignments shortened, prepetition/reminders, movement breaks/reward system, limited distractions, and positive reinforcement" which aligned to evaluative data and recommendations (id. at p. 13).  Additionally, the IHO concluded that the evidence supported that a school location letter was sent to the parent, and the parent's argument that she did not have sufficient time to visit the proposed public school was without merit as there was no evidence she even "attempted to investigate the [p]ublic [s]chool" (id. at pp. 6-8).  As the IHO found that a FAPE was offered, the IHO denied the parent's request for relief (id. at p. 16).

While not required, the IHO went further and addressed the parent's remaining claims and requests for relief  in alternative findings and determined that Beacon was an appropriate unilateral placement for the student and equitable considerations would have warranted full funding for the cost of the student's attendance if the district had failed to offer the student FAPE (IHO Decision at p. 16).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding that the district offered the student a FAPE for the 2023-24 school year.  The parent specifically argues that the IHO erred in finding that a 12:1+1 special class for ELA, math, social studies, and science instruction for a total of 25 periods per week was an appropriate placement for the student during the 2023-24 school year, that the CSE's 2023-24 recommendations for the student were appropriate absent a BIP or "specific behavior strategies and methodologies," and that the district offered the student personalized instruction with sufficient support services to allow the student to benefit educationally from instruction.  The parent requests reimbursement for the costs of the student's tuition at Beacon for the 2023-24 school year.

The district answers arguing that the IHO's decision is well-reasoned and should be affirmed.  As an issue "on cross-appeal," the district asserts that the parent's request for review fails to comport with practice regulations and, therefore, should be dismissed.  Lastly, the district contends that the IHO erred in deciding that if the parent had prevailed, no reduction of the tuition awarded was called for based on equitable factors.  Rather, the district argues that equitable considerations require a 17 percent reduction of any tuition award, due to the portion of the school day devoted to religious instruction at Beacon.

V. Applicable Standards

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

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

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

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

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

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

VI. Discussion

Upon careful review, the hearing record reflects that the IHO correctly reached the conclusion that the district offered the student a FAPE for the 2023-24 school year (see IHO Decision at p. 16).  The IHO accurately recounted the facts of the case, addressed the core issues that were identified in the parents' due process complaint notice, set forth the proper legal standard to determine whether the district offered the student a FAPE for the 2023-24 school year, and applied that standard to the facts at hand (id. at pp. 1-16).  The decision shows that the IHO considered the evidence presented by both parties, and that he weighed the evidence and supported his primary conclusions (id.).  Furthermore, an independent review of the entire hearing record reveals that the impartial hearing was conducted in a manner consistent with the requirements of due process and that there is no reason appearing in the hearing record to modify the determinations of the IHO, with the exception of those issues indicated below (see 20 U.S.C. § 1415 [g][2]; 34 CFR 300.514[b][2]).  As described in further detail below, I adopt the majority of the IHO's conclusions as my own and concur with the IHO's ultimate determination that the district offered the student a FAPE and the January 2023 IEP was reasonably calculated to provide meaningful educational benefit to the student (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).[6]

A. Burden of Proof

As an initial matter, I will address the parent's assertions related to the district relying entirely on documentary evidence to meet its burden of proving the student was offered a FAPE in the 2023-24 school year.

The parent contends, on appeal, that the district failed to properly defend the January 2023 IEP at the hearing.  In relevant part, the parent argues that the district did not meet its burden of proof because the district failed to present witness testimony to explain and corroborate the January 2023 CSE's rationale for the recommendations contained in the January 2023 IEP and how the annual goals in the IEP could have been implemented in the recommended 12:1+1 special class, which the parent described as a "large class."  Specifically, the parent asserts that for the student to achieve the goals on the January 2023 IEP, he required a more intensive adult to student ratio than a 12:1+1 setting.  Thus, according to the parent, the IHO's determination that the recommended program was reasonably calculated to provide an educational benefit to the student lacked support in the hearing record.  The district argues that the "robust documentation and evaluative evidence" submitted by the district may, and did, sustain the district's burden of proof based on documents alone.

Under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer v. Weast, 546 U.S. 49, 59-62 [2005] [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]).[7]  Under State law, however, the burden of proof has been placed 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 Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85). Thus, the district has the burden of proving that the IEP it created was appropriate to meet the student's special education needs.

In Endrew F., the Supreme Court held that the "reviewing court may fairly expect [school] authorities . . . to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances" (580 U.S. at 404).  While the district's burden does not require that the district call witnesses, it does require the district to defend its recommendations and provide evidence that explains such recommendations.  If the district intends to rest its case on documentary evidence alone, the district should offer into evidence all documentation pertaining to the evaluation of the student and the CSE's recommendations, including prior written notices (34 CFR 300.503[a]; 8 NYCRR 200.5[a]; see also L.O. v. New York City Dep't of Educ., 822 F.3d 95, 110-11 [2d Cir. 2016] [discussing the consequences of a CSE's failure to adequately document evaluative data, including that reviewing authorities might be left to speculate as to how the CSE formulated the student's IEP]).

Here, the district presented documentary evidence including the January 2023 IEP itself, notices to the parent, and other materials pertaining to the district's initial evaluation of the student and development of the IEP (see Dist. Exs. 1-10).  Those evaluative materials, discussed in more detail below, included a psychoeducational assessment and observation of the student, a social history, a speech and language evaluation report, and an OT evaluation report, with all of the evaluations taking place in July and August 2022—around six  months prior to the January 2023 CSE meeting (see Dist. Exs. 1; 3-7).

Contrary to the parent's contention, the district's presentation of documentary evidence was sufficient to sustain its burden of proof (see Application of a Student with a Disability, Appeal No. 24-084 [reversing the IHO's determination that the district failed to meet its burden of proof without testimony "to explain why it was appropriate . . . to rely on [the evaluative information] and why the IEP was appropriate"]). There is no mandate that documentary evidence in a due process hearing must be found insufficient unless corroborated by witness testimony, which is what the argument of the parent's suggests.  In this case, the basis for the CSE's recommendations is evident from the January 2023 IEP, reviewed in conjunction with the aforementioned evaluative materials and documentary evidence.  Indeed, the prior written notice referenced the specific assessments administered to the student and reviewed by the January CSE to develop the 2023-24 IEP (Dist. Ex. 2 at pp. 1-2).  As further explained below, the district's presentation provided sufficient information to enable a fact-specific analysis of the parent's particular challenges to the IEP's substantive adequacy.  The specifics of the district's strategy in presenting its case was ultimately up to the district and its representative, and the parent also was afforded the right to be accompanied and advised by counsel who was authorized to call or even compel the attendance of one or more witnesses if she felt such testimony would have provided a different viewpoint of the disputed issues (see 34 CFR 300.512[a]; 8 NYCRR 200.5[j][3][xii]).

B. January 2023 IEP

Turning to the merits of the parties' dispute, the CSE convened on January 24, 2023 and developed an IEP for the student for the 2023-24 school year (see Dist. Ex. 1 at pp. 1, 27).[8]  According to the evidence in the hearing record, the January 2023 CSE had before it and considered a July 2022 psychoeducational assessment and observation, an August 2022 social history, an August 2022 speech and language assessment, an August 2022 OT evaluation including an observation of the student, and progress reports from the student's then current teacher and providers (Dist. Exs. 1 at pp. 1-4; 2 at pp. 1-2; 3-7).

Academically, the January 2023 IEP reported that the student demonstrated strengths in reading, math, and writing (see Dist. Ex. 1 at p. 1).  In reading, the student read fluently with appropriate tone and inflection; could predict, visualize, and make connections while reading a passage; used context clues to help derive the meaning of unknown words; and could answer higher thinking questions and explain his reasoning to the class (id.).  The student also summarized texts, stated the problem and solution, compared and contrasted, recognized genres, and learned eight new vocabulary words per week—learning to use those words in his weekly journal (id.).  Additionally, the student was learning to analyze texts and cite evidence; however, he sometimes missed the central message of stories (id.).  The IEP further indicated that the student was working on analyzing text and citing evidence and slowing down and rereading the text for comprehension (id.).

In writing, the January 2023 IEP indicated that the student's independent skills were adequate and noted that he could construct full sentences with proper capitalization and punctuation, could fill out a graphic organizer with four details, and he had correct letter formation and sentence structure (Dist. Ex. 1 at pp. 1-2).  Additionally, the IEP indicated that the student was learning to organize his written work, to stick to his original ideas and use the graphic organizer when writing his first draft, and to implement his vocabulary words and grammar skills into his written work (id.).

In math, the January 2023 IEP indicated that the student enjoyed computational tasks, comprehended quickly, and applied his knowledge correctly, but he could make careless mistakes (Dist. Ex. 1 at p. 1).  Additionally, the IEP reported that the student could self-check and self-correct when instructed to, was working on solving word problems and following written instructions in the textbook, and was working on filling in the gaps in his foundational math skills as well as using multiplication and division to solve word problems (id.).  The IEP further indicated that the student preferred independent work to working with a group (id.).

With regard to executive functioning skills, the January 2023 IEP reported that the student was working on developing skills such as organizing his belongings and planning tasks (Dist. Ex. 1 at p. 2).  The IEP noted that the student was able to keep his belongings organized with considerable adult intervention (id.).

Socially, the January 2023 IEP reported that the student was adjusting well to his new school environment, specifically, the consistency and behavior system (Dist. Ex. 1 at p. 2).[9]  The IEP further described the student as eager to please but noted that he could be disruptive and easily distracted in class (id.).  Specifically, the IEP indicated that the student had difficulty waiting to be called on and would "call out or do some other things to get the teacher's attention" (id.).  It was reported that the student preferred conversing with adults over peers but would play nicely when prompted by a teacher (id.).  Finally, while the IEP reported that when frustrated the student could express himself to the teacher or therapist before and after an incident; he could also react by pretending to sleep or saying he was not feeling well (id.).

The January 2023 IEP described the student as a charming and talented student who enjoyed expressing himself, particularly through acting, which he used to amuse others (Dist. Ex. 1 at p. 3).  Additionally, the IEP reported that the student typically went to class prepared but needed reminders to bring all required supplies and was encouraged to use a checklist for organization (id.).  Completing homework consistently remained a challenge (id.).  The student was described as highly self-directed, often requesting to switch subjects to ones he preferred, and would continue to ask or disrupt class when told to stay on task (id.).  He frequently needed multiple reminders to start his work and to stop requesting to change tasks (id.).  Additionally, the January 2023 IEP described that the student had difficulty waiting his turn during class discussions, often blurted out answers, interrupted others, or would approach the teacher's desk without raising his hand (id.).  The IEP further indicated that the student generally preferred conversations with adults rather than peers, and while competitive, he could be an excellent team player when engaged and encouraged to participate in group activities (id.).  Finally, the IEP indicated that the student sometimes shared stories that were not truthful and would insist they were true even when unrealistic (id.).   According to the IEP, the student was "learning to do what the rest of the class [w]as doing and follow basic classroom rules and decorum" (id.).

The January 2023 IEP included a section on social thinking, which described the student as a bright and capable student who enjoyed participating in the social thinking class, which included lessons, discussions, worksheets, role play, and games aimed at building students' understanding of social behavior (Dist. Ex. 1 at p. 3).  The IEP further indicated that the student was actively involved in classroom discussions and especially enjoyed role play activities, often providing examples in front of the class for his peers (id.). Additionally, the student had demonstrated an understanding of the importance of social thinking, could articulate what social thinking was, and recognized the concept of teamwork, including that individual actions can affect others, and that people can have varied interests (id.).

Regarding physical development, the January 2023 IEP reported that the student was in good health but presented with sensory processing delays, specifically describing that he was a very active student who had difficulty persisting at a task without movement breaks or without touching surrounding objects (Dist. Ex. 1 at p. 3).  The IEP further indicated that the student had difficulty accepting "no" or persisting through a difficult activity and would have an emotional outburst when something did not go his way (id.).  Additionally, the IEP described that the student used a lateral quadruped grasp, did not use proper letter formation, and presented with delays in manual coordination, strength, and agility (id. at p. 4).  The IEP further described that the student had many unintegrated primitive and postural reflexes (id.).

The January 2023 CSE recommended the following supports to address the student's management needs: graphic organizer, redirection and focusing prompts, long assignments shortened, repetition and reminders, movement breaks and a reward system, limited distractions, and positive reinforcement (Dist. Ex. 1 at p. 4).

1. Special Factors - Interfering behaviors

The parent contends that the January 2023 IEP did not adequately address the student's needs in that it failed to recommend placement in a full-time special education classroom with an adult to student ratio smaller than 12:1+1 and did not provide "specific behavioral strategies and methodologies" or require a BIP for the student (Req. for Rev. ¶ 13; see Dist. Ex. 1 at p. 5).  The district argues that, based on the evaluative materials and information available to the CSE at the time of the January meeting, the resulting IEP adequately addressed the student's needs.  I will first address the parent's contention as it relates to special factors, specifically the lack of a BIP for the student.

Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP.  Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., 361 Fed. App'x 156, 160 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172). A district is also required to conduct a FBA in an initial evaluation for students who engage in behaviors that impede their learning or that of other students (8 NYCRR 200.4[b][1][v]). State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider developing a BIP for a student that is based upon an FBA (8 NYCRR 200.4[d][3][i], 200.22[a]-[b]). Additionally, State regulations define an FBA as "the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment" and

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

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

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

With regard to a BIP, the special factor procedures set forth in State regulations note that the CSE shall consider the development of a BIP for a student with a disability when:

the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; (ii) the student's behavior places the student or others at risk of harm or injury; (iii) the CSE or CPSE is considering more restrictive programs or placements as a result of the student’s behavior; and/or (iv) as required pursuant to [8 NYCRR 201.3]

(8 NYCRR 200.22[b][1]).

If the CSE determines that a BIP is necessary for a student "[t]he [BIP] shall identify: (i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors . . . ; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals" (8 NYCRR 200.22[b][4]).

The district's failure to develop a BIP in conformity with State regulations does not, in and of itself, automatically render an IEP deficient, as the IEP must be closely examined to determine whether it otherwise addressed the student's interfering behaviors (see C.F., 746 F.3d at 80; F.L., 553 Fed. App'x at 6-7; M.W. v. New York City Dep't of Educ., 725 F.3d 131, 139-41 [2d Cir. 2013]; R.E., 694 F.3d at 190).

The January 2023 IEP described the student as a "bright young man who [wa]s full of positive energy" and that he was "inquisitive and enjoy[ed] exploring new subjects and ideas" (Dist. Ex. 1 at p. 1).  Additionally, the IEP described that in math the student asked for assistance when he did not understand a math problem, in writing, the student was a creative thinker who enjoyed expressing his ideas and thoughts with the class, and he was a motivated student (id.).  During the CSE meeting, the student's teacher described the student as a "motivated, bright, creative youngster" who participated in class and the teacher opined that the student had "made very good progress" in that he was less resistant and compliant in class (id. at p. 2).  The teacher described the student's main struggles as attention seeking behavior, frequently asking for breaks, calling out, and getting out of his seat (id.).   The student's counselor described the student as a smart and curious boy who was new to the school and was adjusting well to the consistency and behavioral system and noted that he was eager to please and did well with positive attention; however, in class he could be disruptive and get distracted easily (id.).  The student did not have the patience to wait to be called on and would call out or do other things to get the teacher's attention (id.).  Additionally, the student did not like organized play; however, when prompted he would join and play nicely with his peers (id.).  The counselor described that, when frustrated, the student would often express himself to the teacher or therapist before and after the incident; however, he would occasionally pretend to be sleeping or say that he was not feeling well, would occasionally complain that "it's not fair," and he could ignore the teacher or authority giving him the directions (id.).

The January 2023 IEP included a report from the student's teacher that the student could be very self-directed and would frequently ask to switch from an undesired subject to one he preferred, which would continue even after being told to stick with the subject or assignment at hand (Dist. Ex. 1 at p. 3).   Additionally, the student would forget to raise his hand and would walk up to the teacher's desk in the middle of a lesson to ask a question (id.).  While the teacher described that the student did not wait his turn to speak in class, blurted out answers and interrupted others, and became frustrated when not called on right away, the IEP also noted that he could produce quality work "when he put[] his mind to it" and had many talents and excellent capabilities (id.).   The IEP also reported that the student often shared stories that were not true and would insist that they were true even when unrealistic (id.).  Finally, the teacher noted that the student preferred indoor recess, however, when encouraged he would join group sports and was an excellent team player (id.).

The January 2023 IEP reported, from an occupational therapist, that the student was very active and had difficulty persisting at a task without movement breaks or touching surrounding objects (Dist. Ex 1 at p. 3).  Additionally, the occupational therapist described the student as requiring a number of redirections to focus on the task at hand, having a difficult time accepting "no" and persisting through a difficult activity, and potentially having an emotional outburst when something did not go his way (id.).

According to the July 2022 psychoeducational evaluation report, the student presented as a "hyperactive and inattentive young man" who transitioned to and from the evaluation room without difficulty; however, he transitioned with some difficulty after a 10-minute break (Dist. Ex. 4 at p. 2).  The evaluator reported that the student engaged in pleasant conversation, when focused he was able to complete tasks without difficulty; benefitted from movement breaks and encouragement to remain focused; did not always listen to instructions and benefited from repetition; was easily distracted throughout testing and was often out of his seat; needed redirection back to task; was easily frustrated completing social/emotional assessments as sentences were repetitive; played with objects in front of him, and seemed to benefit from rewards (id.).  The evaluator recommended the parent seek out physician assistance with ruling out medical diagnoses regarding inattention, hyperactivity, and/or inappropriate behavior (id. at p. 8).

According to the August 2022 speech and language evaluation report, the clinician described the student as a "respectful youngster who easily engaged in conversation with the evaluator"; however, she noted that he appeared to have difficulty remaining focused for extended periods of time and frequently became distracted (Dist. Ex. 6 at p. 1).  The clinician further opined that the student benefited from refocusing prompts, movement breaks and verbal praise throughout the evaluation, specifically noting that he appeared to be motivated by consistent feedback regarding his performance (id.).  According to the clinician the student often asked questions not pertaining to the evaluation or inquired whether he could tell a story and responded to redirection intermittently which led to the evaluation taking about two and a half hours (id.).  The student appeared self-aware and asked for breaks or fidget toys to keep his hand busy which helped him to focus, as well as that he appeared respectful when he requested repetition which demonstrated self-advocacy skills (id.).  Finally, the clinician indicated that the student had difficulty remaining seated throughout the evaluation and benefitted from frequent, short movement breaks, repetition of instructions, refocusing prompts, and consistent feedback regarding his progress (id. at p. 2).

The August 2022 OT evaluation report indicated that the student played well during recess and interacted appropriately with classmates, transitioned well to the evaluation setting, and was distracted throughout the evaluation by auditory or visual input but was able to redirect with a verbal cue from the therapist (Dist. Ex 7 at p. 10).  The occupational therapist further described that the student was "quiet and reserved," "insightful and very sweet and respectful," and that he was able to express his needs during the evaluation (id. at pp. 10, 11).  The occupational therapist shared from a spoken report that the student struggled to manage emotions independently and was described as "impulsive" (id. at p. 10).  During the evaluation the student demonstrated socially appropriate behaviors, and the therapist described their back-and-forth conversation as "mature," noting that he asked appropriate questions during the conversation and added on topic details to the conversation (id.).  The student was able to follow directions and rules during the evaluation; however, he struggled to sustain effort, worked at an extremely slow pace to complete tasks throughout the evaluation, and required one rest break (id.).  The therapist reported that the student struggled to organize materials and complete work independently unless cued on what was needed, and he struggled to complete work on time due to working at an extremely slow pace and holding a pencil in an inefficient way causing early fatigue (id.).  The occupational therapist further reported that the student struggled with filtering out auditory and visual input, which affected his functional attention and caused him to miss information throughout his day; the therapist opined that the student would benefit from a sensory diet regulating visual and auditory input (id. at p. 13).  The occupational therapist summarized that the student struggled with his speed while completing any visual motor or fine motor task; underlying deficits in hand stability, speed, and fine motor development impacted his ability to manage classroom tools effectively (id. at p. 14).  She further opined that the student struggled with impulsivity and attention that affected his executive functioning skills (id.).

Regarding the student's behavior, the documents reviewed by the January 2023 CSE showed that the student had difficulty attending, required frequent redirection to stay on task, could become frustrated, would call out, interrupted and left his seat, had difficulty waiting for his turn, and was self-directed.  However, the documents also showed that he could participate in class, his resistance was decreasing, he demonstrated improved compliance in class, played nicely with peers when prompted, demonstrated self-advocacy and self-awareness, and could express himself when frustrated.  The January 2023 CSE determined that the student did not need strategies or supports to address behaviors that impeded his learning or that of others and that he did not require a BIP (Dist. Ex. 1 at p. 5).  Review of the evidence offers conflicting views of whether the CSE, as a procedural matter, was required to conduct an FBA of the student in order to develop a BIP, because while it appears that some of the time the student engaged in behaviors that may have interfered to a degree with his own learning or that of others, at other times he engaged well, responded appropriately to supports such as repetition and redirection, and was performing well academically.  Accordingly, although the district did not sufficiently establish during the impartial hearing that, procedurally speaking, an FBA of the student was not required,  the inquiry does not end there because, as described above, the lack of an FBA or a BIP does not automatically result in a denial of a FAPE to a student and it must be determined whether the IEP otherwise contained strategies to addresses the behaviors of concern.  In this case, the January 2023 IEP does contain such strategies, as further described below.

The January 2023 IEP reported that the student worked best with frequent feedback and positive reinforcement and suggested that by addressing his foundational skills such as integrating his reflexes, he will have the necessary foundations to help overcome learning, sensory and behavioral challenges (Dist. Ex. 1 at pp. 1, 4).  The management needs section of the January 2023 IEP noted that the student would benefit from redirection and focusing prompts, long assignments shortened; repetition and reminders; movement breaks and a reward system, limited distractions and positive reinforcement (id. at p. 4).  Among other supports for the student, the CSE developed annual goals that targeted the student's academic, social interaction and thinking skills, classroom behavior, focusing and attention, social interaction, sensory processing, coping, core strength, integration of primitive reflexes, verbal and nonverbal communication, ability to express feelings, problem solving, and executive functioning skills (id. at pp. 5-20).  The January 2023 CSE further recommended the student receive 30 minutes weekly of individual counseling services, 30 minutes weekly of group counseling services, 30 minutes weekly of individual OT, and 30 minutes weekly of group OT (id. at p. 22).

The evidence described above supports a finding that even if the district did not establish that an FBA was not necessary, this procedural error does not, in this instance, rise to the level of a denial of FAPE.  Similarly, the district's determination to not develop a BIP for the student does not constitute a denial of FAPE because the IEP otherwise identified the areas of concern with respect to the student's behaviors and contained appropriate strategies to address them, even if they were not the same exact strategies preferred by the parent or the providers in the private school. Thus, the lack of an FBA or a BIP in this case did not lead to a denial of a FAPE to the student.

2. 12:1+1 Special Class

Turning next to the parent's dispute over the class size of the student's placement recommendation as set forth in the January 2023 IEP, State regulation provides that "the maximum class size for special classes containing students whose management needs interfere with the instructional process, to the extent that an additional adult is needed within the classroom to assist in the instruction of such students, shall not exceed 12 students, with one or more supplementary school personnel assigned to each class during periods of instruction" (8 NYCRR 200.6[h][4][i]). By way of comparison, State regulation also indicates that the maximum class size for special classes containing students whose management needs are determined to be intensive or highly intensive and requiring a significant or high degree of individualized attention and intervention shall not exceed eight or six students, respectively, with one or more supplementary school personnel assigned to each class during periods of instruction"(8 NYCRR 200.6[h][4][ii][a]-[b]).

The parent alleges on appeal that the IHO erred in finding the January 2023 CSE's recommendation was appropriate arguing that the recommendation of the 12:1+1 special class was too large to meet the student's needs, and he required a class with a smaller student to teacher ratio.

Review of the January 2023 IEP revealed that the CSE considered a program consisting of only related services, as well as a class where integrated co-teaching services were delivered, but rejected both options as being insufficient to meet the student's needs (Dist. Ex. 1 at p. 29).  The January 2023 CSE determined that the student's "needs could best be met within a small, structured, full-time, ten-month, (12:1:1) learning environment with related services of occupational therapy and counseling" in a community school (id. at pp. 4, 21-22, 27).

In conjunction with the supports inherent in a 12:1+1 special class, the January 2023 CSE developed annual goals directed at addressing the student's skills in academics (reading, writing, and math), social/emotional, behavioral, communication, executive functioning, sensory processing, gross and fine motor, and vocabulary skills (Dist. Ex. 1 at pp. 5-21).  Specifically, the annual goals were designed to improve the student's comprehension of literature and informational text; increase his accuracy in spelling and phonics level five list words; develop effective coping skills when participating in an activity or task perceived as unfamiliar or challenging; improve core strength and endurance; improve fine motor and graphomotor skills; improve his social interaction skills by expressing frustration to the teacher or therapist before and after a frustrating incident; improve sensory processing skills to improve his ability to effectively interact with people and objects in the school and home environment; improve classroom behavior by focusing on the lesson being taught by the teacher; improve his social behavior skills by listening to teacher or therapist instructions; improve overall arithmetic computation skills; improve word-problem solving skills; improve classroom behavior skills by refraining from disrupting the class; increase his vocabulary skills; improve his writing skills; improve his grammar skills; demonstrate improved integration of primitive reflexes; improve classroom behavior; improve social behavior; improve social thinking skills by learning about verbal and nonverbal communication, expressing feelings, and problem solving; and improve executive functioning skills (id.).  In addition, the January 2023 CSE recommended one 30-minute session per week of individual counseling, one 30-minute session per week of group counseling, one 30-minute session per week of individual OT and one 30-minute session per week of group OT to address the student's social/emotional, behavioral, sensory processing, and fine motor needs (id. at pp. 21-22).

Additionally as discussed in more detail above, the student's behaviors were not found to be intensive or highly intensive such that he required a "significant or high degree of individualized attention and intervention" and were appropriately addressed by the recommended annual goals and management needs including graphic organizer, redirection, and focusing prompts, long assignments shortened, repetition and reminders, movement breaks and a reward system, limited distractions, and positive reinforcement (Dist. Ex. 1 at pp. 4, 5-21).

Based on the evidence in the hearing record, there is an insufficient basis to disturb the IHO's determination that the 12:1+1 special class placement with the recommended related services and supports identified in the January 2023 IEP were appropriate to address the student's needs.  It is understandable that the parent might have wanted more support in form of a smaller student to teacher ratio; however the statute ensures as "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).  Additionally, the parents' preference for a "smaller class size" illustrates a common predicament that often what is considered "small" in terms of class size is in the eye of the beholder (M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 335 [E.D.N.Y. 2012] [holding "[t]hat the size of the class in which [the student] was offered a placement was larger than his parents desired does not mean that the placement was not reasonably calculated to provide educational benefits"], aff'd, 725 F.3d 131 [2d Cir. 2013]), but a parents' decision to provide a smaller classroom ratio is not in and of itself conclusive evidence of the question of whether a public placement provides appropriate services to meet a student's needs (see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015]).[10]

VII. Conclusion

Having determined that the evidence supports the IHO's ultimate determination that the district offered the student a FAPE for the 2023-24 school year, the necessary inquiry is at an end, and I need not reach the issue of whether equitable considerations support the parent's request for relief (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).

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

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.