I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's tuition at Beacon-Ohr Dovid (Beacon) for the 2023-24 school year.  The district cross-appeals from that portion of the IHO's decision which failed to address the appropriateness of the parent's unilateral placement and equitable considerations.  The appeal must be sustained.  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

On August 11, 2022, district conducted a psychoeducational evaluation as part of a triennial evaluation of the student (Dist. Ex. 6).  According to the evaluation, the student had been attending a general education religious nonpublic school, had been eligible for special education as a student with a speech or language impairment, and had received special education teacher support services (SETSS), occupational therapy (OT), counseling, and speech-language therapy (id. at p. 1).[1]  The evaluation indicated that for the 2022-23 school year, the student would be entering the second grade at Beacon, a religious nonpublic special education school (id.).[2], [3]

A CSE convened on September 19, 2022, found the student eligible for special education as a student with autism, and developed an IEP with a projected implementation date of October 6, 2022 (Parent Ex. B at p. 1).  The CSE recommended that the student attend a 12:1+1 special class for English language arts (ELA), math, science, and social studies in a non-specialized school and receive related services consisting of two 30-minute sessions per week of group counseling, two 30-minute sessions per week of individual occupational therapy (OT), and one 30-minute session per week each of group and individual speech-language therapy, and that the parent receive one 60-minute session of parent counseling and training per week for five weeks (id. at pp. 14, 19).  The CSE also recommended full time 1:1 paraprofessional services for behavior support (id. at p. 15).

A CSE convened on January 3, 2023, found the student continued to be eligible for special education as a student with autism, and developed an IEP with a projected implementation date of September 7, 2023 (Dist. Ex. 2 at pp. 1, 22).[4]^, [5]  The January 2023 CSE recommended the same programming set forth in the September 2022 IEP (compare Dist. Ex. 2 at pp. 16-17, 22, with Parent Ex. B at pp. 14-15, 19).

The hearing record includes copies of a prior written notice and a school location letter both dated August 16, 2023 (see Dist. Exs. 4, 5).[6]

In a letter dated August 21, 2023, the parent, through her attorney, notified the district that she disagreed with "[t]he class size recommended in the IEP and the size of the school placement" and, moreover, that she had "not yet been afforded the opportunity to visit the proposed placement" for the student for the 2023-24 school year (Parent Ex. C).  The parent advised the district of her intent to enroll the student at Beacon for the duration of the 2023-24 school year and seek tuition funding from the district unless and until a resolution could be obtained (id.).

On September 1, 2023, the parent executed a "Letter of Agreement" for the student's attendance at Beacon for the 2023-24 school year (Parent Ex. D).  The student attended Beacon from September 5, 2023 through June 20, 2024 (Parent Ex. H).  During the 2023-24 school year the student was placed in a 6:1+2 special class and received 1:1 instruction in reading (Parent Ex. F ¶¶ 10, 20).

A. Due Process Complaint Notice

In a due process complaint notice dated September 23, 2024, the parent alleged 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 argued that the September 2022 CSE failed to recommend an appropriate program for the student and the district "failed to send a proposed public school placement to [the] parent" for the 2023-24 school year (id.).  The parent alleged that the student needed a smaller class size in order "to address all the student's academic skills, social/emotional skills, and life skills" (id.).  For relief, the parent sought an order requiring the district to fund the student's tuition at Beacon for the 2023-24 school year (id. at p. 2).

B. Impartial Hearing Officer Decision

After prehearing and status conferences on October 30, 2024 and December 4, 2024 (Tr. pp. 1-16), an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on January 22, 2025 and concluded the same day (Tr. pp. 17-47).[7]  In a decision dated February 6, 2025, the IHO found that the district offered the student a FAPE for the 2023-24 school year and denied the parent's requested relief in its entirety (IHO Decision p. 3, 7).

The IHO first noted that the parent's due process complaint notice "only raise[d] issues pertaining to the September 2022 IEP, and state[d] no dispute pertaining to the January 2023 IEP" (IHO Decision at p. 4).  Nevertheless, the IHO found that, even if the parent had sufficiently raised issues with the January 2023 IEP, the evidence supported a finding that the IEP was appropriate (id. pp. 5-6).  The IHO held that the district's documentary evidence "provided thorough insight into what the CSE considered before making [its] recommendation" and that the IEP reflected the "[s]tudent's current levels of performance and concerns with [the s]tudent's behavior" (id. at p. 5).  Regarding the parent's concern about the class size, the IHO found that the 12:1+1 special class was appropriate given the provision for an 1:1 paraprofessional (id. at pp. 5-6).

The IHO addressed the parent's argument that the district failed to notify her of the public school site to which the district assigned the student to attend for the 2023-24 school year, finding that "the [d]istrict presented clear and convincing evidence of a school location letter identifying the [s]tudent's public-school placement, mailed to [the parent] on August 16, 2023" and that the parent presented no evidence to rebut this (IHO Decision at p. 6).  To the extent the parent alleged that the assigned public school site would be inappropriate, the IHO concluded that the parent's claims were speculative as the student had not attended the district's recommended placement (id. at pp. 6-7).

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 argues that the IHO erred in finding that the January 2023 IEP was outside the scope of the impartial hearing, noting that, at the time of the due process complaint notice, she only had the September 2022 IEP "in [her] possession."  Further, the parent contends that, as both the September 2022 and January 2023 IEPs recommended the same class size and program of services, the parent's reference to the particular IEP was immaterial.  The parent argues that her claims about the sufficiency of the special class and recommended programming to address the student's behavioral needs for the 2023-24 school year were clearly stated.  Further, the parent alleges that the district failed to meet its burden to prove that the IEP was appropriate as the recommended 12:1+1 special class was too large, the IEP did not set forth behavioral strategies to allow the student to function in the "large classroom setting," and provision for a paraprofessional, who was not licensed in counseling or a "behavioral area," was not sufficient.  Finally, the parent contends that the district did not demonstrate that it sent the parent copies of the January 2023 IEP, or any prior written notice or school location letter.

The parent asserts that she met her burden to prove that Beacon was an appropriate unilateral placement for the student for the 2023-24 school year and that equitable considerations support an award of tuition funding.  For relief, the parent requests that the IHO's decision be reversed and the parent be awarded full tuition at Beacon for the 2023-24 school year.

In an answer and cross-appeal the district argues that the IHO's decision should be upheld in its entirety but asserts, in the alternative, that, in the event it is found that the district did not offer the student a FAPE, that the parent's requested relief should be denied on other grounds.  Namely, the district argues that the parent did not demonstrate the appropriateness of the unilateral placement of the student at Beacon and that any award of tuition should be reduced as an equitable consideration for the amount of the school day devoted to religious instruction.[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

A. Scope of the Impartial Hearing

Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing (Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056).  Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[i][7][i][a]; [j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]).  Indeed, "[t]he parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function.  To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district" (R.E., 694 F.3d 167 at 187-88 n.4; see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 [2d Cir. June 18, 2014]).[10]

As set forth above, the parent mentioned only the September 2022 IEP in her due process complaint notice with no reference to the January 2023 IEP (Parent Ex. A).  The parent's position is that she "did not have a copy" of the January 2023 IEP at that time (Req. for Rev. ¶ 14).[11]  Indeed, during the status conference, the parent's representative requested confirmation from the district that the September 2022 IEP was the last IEP developed for the student (Tr. p. 11).  The district's representative stated that there was "an IEP dated 12/19/2023" and the parent's representative requested that the district forward that plan, which she would review, and determine whether it would be appropriate to "amend the case" (id.).[12]  During the impartial hearing, the district offered the January 2023 IEP, which was entered into evidence (see Tr. pp. 21-22; Dist. Ex. 2).  When the parent offered the September 2022 IEP into evidence, the district objected on the grounds that it was an "old IEP" and that the relevant IEP was the January 2023 IEP (Tr. pp. 22-23).  The parent's attorney responded that the parent was "relying on the 2022 . . . IEP" but, after reviewing the January 2023 IEP, stated that the parent was "disputing this also," noting that the claims directed at the recommended special class and lack of support for the student's behaviors remained the same "irrespective" of the date on the IEP (Tr. p. 24).  In its opening statement, the district contended that the parent's due process complaint notice failed to set forth a challenge to the student's operative IEP for the 2023-24 school year (Tr. pp. 26-27).

Ultimately, as the parent notes, the recommendations in the January 2023 IEP mirror those in the challenged September 2022 IEP (compare Dist. Ex. 2 at pp. 16-17, 22, with Parent Ex. B at pp. 14-15, 19).  The parent's due process complaint notice challenges the district's plan for the student for the 2023-24 school year and includes allegations that a class of 12 students was too large for the student (Parent Ex. A).  Accordingly, notwithstanding that the parent did not reference the January 2023 IEP, the due process complaint notice provided the district sufficient notice that the parent disagreed with a recommendation for a 12:1+1 special class for the student for the 2023-24 school year (id. at p. 1).  Further, despite finding that the parent had not raised an issue with the January 2023 IEP in the due process compliant notice, the IHO reached and considered the merits of parent's allegations of a denial of a FAPE by reviewing the recommendations included in the January 2023 IEP (see IHO Decision at pp. 4-6).  Accordingly, I find it appropriate to review the IHO's analysis in this regard as raised by the parent on appeal (cf. Killoran v. Westhampton Beach Sch. Dist., 2021 WL 4776720, at *7 [E.D.N.Y. Oct. 11, 2021] [finding it appropriate to review a substantive analysis and determination made in the alternative despite a dismissal of claims on procedural grounds], aff'd, 2023 WL 4503151 [2d Cir. July 13, 2023]).  In any event, as discussed further below, even if I had found that the parent's claims relating to the January 2023 IEP were outside the scope of the impartial hearing, I find that the district denied the student a FAPE on other grounds.

B. January 2023 IEP

1. Student Needs

Although not in dispute, a review of the student's needs and functioning at the time of the January 2023 CSE meeting will provide the background necessary to evaluate the appropriateness of the January 2023 CSE's recommendations and the parent's unilateral placement.

The hearing record reflects that the evaluative information considered by the January2023 CSE included: a psychoeducational evaluation dated August 14, 2022 and progress reports dated January 11, 2023 (Dist. Exs. 2 at p. 1; 4 at p. 1).  The January 2023 IEP reported information from the psychoeducational evaluation that, based on administration of the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V), the student exhibited low average cognitive functioning with average verbal skills, low average visual spatial and processing speed, and borderline fluid reasoning and working memory (Dist. Ex. 2 at p. 1).  The student's reading, math, and writing skills were significantly low according to the Kaufman Test of Educational Achievement- Third Edition (KTEA-3) (id.).

The January 2023 IEP reported that, in reading, the student identified rhyming words but had difficulty producing rhymes (Dist. Ex. 2  at p. 1).  The IEP reported that the student blended and segmented words using onset and rhyme, clapped the number of syllables in a word, and identified beginning and ending sounds in words (id.).  The student worked on reading and spelling "VC" and "CVC" words (id.).  The student correctly identified the sight words "I, can, the, we, see, and, like" (id.).  When reading a story, the student answered literal questions as well as inferential and critical thinking questions (id.).  In math, the student counted to 100, recognized numbers to 20, and counted backwards from 10 (id.).  The IEP reported that the student added and subtracted numbers within five and was working on computation fluency, as well as learning the relationship between numbers and their quantities, and understanding more mathematical concepts (id.).  According to the IEP, the student worked hard on writing and was "eager to please" (id.).  The student had pre-writing skills and was working on forming all lowercase letters correctly with same size and correct spacing (id. at pp. 1-2).  When given a journal prompt, the student drew a picture and labeled it using inventive spelling (id. at p. 1).  It was reported that the student would verbally tell a sentence to the teacher for her to write (id. at p. 2).  The student was working on learning how to write his last name correctly (id.).

Regarding language and communication development, the IEP reported that the student exhibited difficulty expressing himself when frustrated (Dist. Ex. 2 at p. 2).  The January 2023 IEP reported that the student benefited from the clinician's model to label his feelings and express his frustration verbally (id.).  Receptively, the student exhibited difficulty following directions that contained multiple critical elements and sequencing a story (id.).  The student also had difficulty identifying the key elements of a story and retelling the story in a clear concise manner (id.).  The IEP indicated that the student answered "wh" questions on a story/picture scene when given maximum verbal prompts (id.).  It was also reported that the student conversed with peers and benefitted from reminders of the basic rules of a conversation (i.e., eye contact) (id.).  The student's language and communication skills were characterized as "improving" but the student was becoming more self-aware of his challenges and worked on improving his verbal expression skills (id.).

The IEP included information regarding the student's social/emotional and behavioral needs, including his progress in counseling, and noted that the student was adjusting to the new school and the behavior system (Dist. Ex. 2 at p. 2).  According to the IEP, the counselor reported that the student responded well to positive attention (id.).  However, the student demonstrated difficulty controlling his impulses in that he would call out and disrupt class instruction multiple times in a learning period (id.).  Socially, it was reported that the student initiated and maintained age-appropriate conversations and interactions with peers but often needed teacher prompting to keep it flowing (id. at pp. 2, 3).  When playing games and sports the student was described as a "real team player" (id. at p. 3).  The IEP reflected that the student displayed difficulty maintaining whole body listening during conversations and tended to get distracted (id. at p. 2).  In addition, the student struggled to "analyze a social scene and determine what he should do in various situations" (id.).  It was reported, when frustrated or upset, the student had difficulty communicating his feelings in words to the teacher or therapist (id. at pp. 2, 3).  Instead, the student expressed his frustration by "acting out in a socially inappropriate manner, by raising his voice with a whiny tone," which occurred up to five to seven times within a 20-minute period (id. at pp. 2-3).  The student was described as responding well to teacher outreach in these particular instances (id. at 3).  It was reported that "[o]n occasion, about 2-3 times a week, [the student] w[ould] have a total outburst" where "[h]e w[ould] scream or get aggressive with objects" but "[a]fter a five-minute timeout he w[ould] come out calm" (id.).  The student was characterized as taking pride in his work and wanting his work to be "perfect" such that he would try to fix a work product several times "until it's to his liking when it was really ok the first time" (reported as occurring two to three times within a 20-minute period) or would "not try" and would tell his teacher the task was "too hard" (reported as occurring one to two times within a 20-minute period) (id.).  The IEP indicated that the student was working on learning to communicate and express his frustrations in a more appropriate manner (id.).

The student's occupational therapist updated the physical needs section of the January 2023 IEP and reported that the student presented with delays in sensory processing which led to poor frustration tolerance (compare Dist. Ex. 2 at p. 3, with Parent Ex. B at p. 2).  The occupational therapist reported that the student had the need to perform tasks "perfectly" (Dist. Ex. 2 at p. 3).  It was reported that, when the student became upset, he struggled with self-regulation and had difficulty calming himself down (id.).  The occupational therapist also reported that the student had fine motor delays and an immature grasp (id.).  The student wrote his first name but could not write his last name (id.).  According to the IEP the occupational therapist created a sensory diet for the student and utilized individual daily rhythmic movement training (RMT) exercises for reflex integration (id.).

2. 12:1+1 Special Class with 1:1 Paraprofessional and Related Services

Turning to the parent's contention that the 12:1+1 special class with individual paraprofessional and related services would not have appropriately supported the student, 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]).  In addition, State regulation includes as a special factor a CSE's consideration of "supplementary school personnel (or one-to-one aide) to meet the individualized needs of a student with a disability" (8 NYCRR 200.4[d][3][vii]; see 20 U.S.C. § 1414[d][3][B]; 34 CFR 300.324[a][2]).  A CSE must consider a number of factors before recommending a 1:1 aide on a student's IEP, including: the student's management needs, goals for reducing the need for 1:1 support, the specific support the 1:1 aide would provide, other supports or accommodations that could meet the student's needs, the extent (e.g., portion of the day) or circumstances (e.g., transitions between classes) the student needs the 1:1 aide, staffing ratios, how the support of a 1:1 may enable the student to be educated with nondisabled peers, any potential harmful effect of having a 1:1 aide, and training and support that will be provided to the aide to help the aide understand and address the student's needs (8 NYCRR 200.4[d][3][vii]).  Further, a State guidance document, dated January 2012 provides examples of student needs that may require a CSE to consider a recommendation for the services of a one-to-one aide, including: the student "presents with serious behavior problems with ongoing (daily) incidents of injurious behaviors to self and/or others or student runs away and student has a functional behavioral assessment [(FBA)] and a behavioral intervention plan [(BIP)] that is implemented with fidelity"; the student "cannot participate in a group without constant verbal and/or physical prompting to stay on task and follow directions"; the student "needs an adult in constant close proximity for direct instruction," "requires individualized assistance to transition to and from class more than 80 percent of the time," and "needs an adult in close proximity to supervise social interactions with peers at all times" ("Guidelines for Determining a Student with a Disability's Need for a One-to-One Aide," Office of Special Educ. Field Advisory [Jan. 2012], at p. 1 & Attachment 2, available at https://www.nysed.gov/sites/default/files/programs/special-education/guidelines-for-determining-a-student-with-a-disabilitys-need-for-a-one-to-one-aide.pdf).

Here, the IEP documented that the January 2023 CSE considered SETSS and integrated co-teaching services for the student but rejected these options as they were insufficient to meet the student's needs at that time (Dist. Ex. 2 at p. 24; see also Dist. Ex. 4 at p. 2).  The January 2023 IEP included a statement concerning the effect of student needs on involvement and progress in the general education curriculum, stating that the student's deficits in cognitive, academic, social-emotional, communication and fine motor areas could best be met within a small, structured, ten-month, learning environment with related services and behavior management paraprofessional services to address his needs (Dist. Ex. 2 at p. 4).

In arguing that the IHO erred in finding the recommended programming to be appropriate, the parent asserts that 12:1+1 special class was "too large and there was a lack of specific behavioral strategies and a plan to deal with the Student in that large classroom setting" (Req. for Rev. ¶ 18).  However, in addition to the 12:1+1 special class, the CSE also recommended 1:1 paraprofessional and related services (Dist. Ex. 2 at pp. 16-17).  The January 2023 IEP identified modifications and resources needed to address the student's management needs including: repetition and review, modeling, reminders to check work, teacher check-ins, verbally explaining steps before starting, independent work, break assignments into smaller sections, praise, and encouragement (id. at p. 4).  The January 2023 CSE developed 13 annual goals for the student that focused on improving the following skills: decoding; reading comprehension; math computation; math word problems; basic writing; sensory processing, fine motor, and sensory integration; social interaction, frustration tolerance, and expressive and receptive language; and behavior with the paraprofessionals assistance (id. at pp. 5-15).  Specific to the student's behavioral need, the IEP included annual goals for the student to work on improving frustration tolerance, including by expressing himself with proper words and tone (id. at pp. 13-14).  The IEP also included an annual goal that stated the 1:1 paraprofessional would assist the student in "developing and maintaining more appropriate school behaviors and intercepting potentially frustrating and/or upsetting situations by discussing and implementing strategies to cope" (id. at p. 15).

Further, the CSE recommended a behavioral intervention plan (BIP) to assist the student in developing and maintaining appropriate school behaviors (Dist. Ex. 2 at pp. 4-5), which pursuant to State regulation would 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]).[13]

The parent's claim that a paraprofessional would not have possessed sufficient qualifications to support the student's behavior needs is speculative and without support in the hearing record.  State regulations no longer define the term "paraprofessional," as the term "paraprofessional" was replaced with the term "supplementary school personnel" (see NY Reg, June 25, 2014 at 85-86).  Supplementary school personnel "means a teacher aide or a teaching assistant" (8 NYCRR 200.1[hh]).  A teaching assistant may provide "direct instructional services to students" while under the supervision of a certified teacher (8 NYCRR 80-5.6[b], [c]; see also 34 CFR 200.58[a][2][i] [defining paraprofessional as "an individual who provides instructional support"]).  A "teacher aide" is defined as an individual assigned to "assist teachers" in nonteaching duties, including but not limited to "supervising students and performing such other services as support teaching duties when such services are determined and supervised by [the] teacher" (8 NYCRR 80-5.6[b]).  State guidance further indicates that a teacher aide may perform duties such as assisting students with behavioral/management needs ("Continuum of Special Education Services for School-Age Students with Disabilities," at p. 23, Office of Special Educ. [Nov. 2013], available at https://www.nysed.gov/sites/default/files/programs/special-education/continuum-of-special-education-services-for-school-age-students-with-disabilities.pdf).  The hearing record includes no evidence that the student required the support of an individual with additional qualifications or certifications in order to receive educational benefit.

It is clear that the parent preferred the class ratio that the student attended at Beacon.  In addition, the Beacon principal testified that a recommendation for a 12:1+1 special class would not have been appropriate for the student during the 2023-24 school year because "the student g[ot] frustrated and overreact[ed] in a disruptive way to minor problems" and "[a] larger class ratio present[ed] more opportunity for these occurrences" (Parent Ex. F ¶ 37).  The principal also testified that the student needed to be placed in an environment with fewer opportunities for distractions and more one-on-one instruction and intervention (id.).  According to the principal's testimony the student was placed in a 6:1+2 special class at Beacon due to his challenges of staying on task of completing work, the intensity of his behavior program, and that the student required a lot of positive motivation and support to get started in work (Tr. pp. 36-37).

However, the information before the CSE reflected that the student had made "measurable progress" at Beacon, including in his behaviors (Dist. Ex. 2 at p. 1).  Further, the parent shared with the CSE that the student had "developed greater self awareness about his behavior and . . . greater verbal expression" (id. at p. 2).  Given this information, it would have been reasonable for the CSE to consider a classroom with a larger student-to-staff ratio with the more focused support of an 1:1 paraprofessional.

Moreover, while the parent may have preferred the special class ratio provided at Beacon, districts are not required to replicate the identical setting used in private schools (see, e.g., M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *28 [S.D.N.Y. Sept. 28, 2018]; Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, at *6 [N.D.N.Y. June 19, 2009]; Watson v. Kingston City Sch. Dist, 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004]).  While it is understandable that the parent might have wanted more support in form of a smaller student to teacher ratio, 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 parent's 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]).

Based on the above, I find that the hearing record supports the IHO's finding that the district's recommended program, including the 12:1+1 special class in a non-specialized school with support of an 1:1 paraprofessional, was reasonably calculated to enable the student to receive educational benefits and offered the student a FAPE for the 2023-24 school year.

C. Notice of Assigned Public School Site

While the evidence in the hearing record supports the IHO's determination that the January 2023 IEP offered the student a FAPE, the parent also alleges that the IHO erred in finding that the district provided her with notice of the particular public school location to which it assigned the student to attend for the 2023-24 school year.  It is to that issue that I now turn.

Although federal and State regulations do not expressly state that a district must provide a written notice to the parents in any particular format describing the "bricks and mortar" location to which a student is assigned and where the student's IEP will be implemented, once an IEP is developed and a parent consents to a district's provision of special education services, the IDEA is clear such services must be provided to the student by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320).  When determining how to implement a student's IEP, the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation (see K.L.A. v. Windham Southeast Supervisory Union, 371 Fed. App'x 151, 154, 2010 WL 1193082, at *2 [2d Cir. Mar. 30, 2010]; T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]; White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 [5th Cir. 2003]; see Veazey v. Ascension Parish Sch. Bd., 121 Fed. App'x 552, 553 [5th Cir. Jan. 5, 2005]; A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 [4th Cir. 2004]; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 [2d Cir. 1980]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]).  To be clear there is no requirement in the IDEA that a student's IEP name a specific school location (see, e.g., T.Y., 584 F.3d at 420).  Moreover, parents generally do not have a procedural right to participate in the selection of a specific locational placement of their child (see Luo v. Baldwin Union Free Sch. Dist., 2013 WL 1182232, at *5 [E.D.N.Y. Mar. 21, 2013], aff'd, 556 Fed. App'x. 1, 2013 WL 6726899 [2d Cir Dec. 23, 2013]; J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *10 [S.D.N.Y. Feb. 20, 2013]; see also R.E., 694 F.3d at 191-92 [finding that a district may select a specific public school site without the advice of the parents]; F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *11 [S.D.N.Y. Oct. 16, 2012] [noting that parents are not procedurally entitled to participate in decisions regarding public school site selection]).

With that said, implicit in a district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP (see Rosenberger v. Banks, 2025 WL 2773299, at *3 [S.D.N.Y. Sept. 29, 2025] ["Naturally, one of the procedural requirements is that when a disabled student's placement is determined, the student and their guardians must be informed of that school placement by the start of the school year."]; T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 [S.D.N.Y. Mar. 30, 2016] [noting that "a parent must necessarily receive some form of notice of the school placement by the start of the school year"]; Tarlowe, 2008 WL 2736027, at *6 [finding that a district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year]).  While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless follows that it must be shared with the parent before the student's IEP may be implemented.  This analysis also fits with the competing notions that, while a district's assignment of a student to a particular school site is an administrative decision which must be made in conformance with the CSE's educational placement recommendation (see M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244-45 [2d Cir. 2015]), a parent has a right to obtain information about an assigned public school site (see H.L. v. New York City Dep't of Educ., 2019 WL 181307, at *9 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 2015 WL 5564446, at *11-*18 [S.D.N.Y. Sept. 21, 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 2014 WL 2207997, at *14-*16 [S.D.N.Y. May 27, 2014] [holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it]).

The parent alleged in her due process complaint that the district did not notify her of the assigned public school (Parent Ex. A at p. 1).  The evidence includes a school location letter, dated August 16, 2023, and also bearing the date the document was printed (December 4, 2024) (Dist. Ex. 5).[14]  However, given the allegation from the parent that she did not receive the letter, the district was tasked with more than just producing the document.  It had to establish that the document was sent to the parent or present enough evidence to warrant a legal presumption that it was mailed (V.A. v. City of New York, 2022 WL 1469394, at *6 [E.D.N.Y. May 10, 2022] [stating that proof of mailing of the school location letter may consisting of evidence of actual mailing or by proof of the district's routine business practice]).

Here, there is no evidence in the hearing record of actual mailing of the school location letter such as a certified mail return receipt or an affidavit of mailing by one with personal knowledge (see V.A., 2022 WL 1469394, at *10).  However, New York law provides a presumption of mailing and receipt by the addressee where there is proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (V.A., 2022 WL 1469394, at *6; T.C., 2016 WL 1261137, at *9; Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829 [1978]; see News Syndicate Co. v. Gatti Paper Stock Corp., 256 N.Y. 211, 214 [1931] [stating that the presumption is founded on the probability that the officers of the government will do their duty and the usual course of business]).  As long as there is adequate testimony by one with personal knowledge of the regular course of business, it is not necessary to solicit testimony from the actual employee in charge of the mailing (V.A., 2022 WL 1469394, at *6; T.C., 2016 WL 1261137, at *9; Nassau Ins. Co., 46 N.Y.2d at 829-30; In re Lumbermens Mutual Casualty Co. v. Collins, 135 A.D.2d 373, 374 [1st Dep't 1987]; Gardam & Son v. Batterson, 198 N.Y. 175, 178-79 [1910] [stating that "the rule upon the subject requires . . . in the absence of any evidence as to its being deposited with the post office authorities, that the proof shall establish the existence of a course of business, or of office practice, according to which it naturally would have been done"]; but see Rhulen Agency, Inc. v. Gramercy Brokerage, Inc., 106 A.D.2d 725, 726 [3d Dep't 1984] ["It is necessary to prove by testimony of the person who mails them that letters are customarily placed in a certain receptacle and are invariably collected and placed in a mailbox."]).  In order to rebut the presumption of mailing and receipt, the addressee must show more than the mere denial of receipt and must demonstrate that the sender's "routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed" (T.C., 2016 WL 1261137, at *9; Nassau Ins. Co., 46 N.Y.2d at 829-30).

Here, the hearing record also does not contain any testimony from district personnel as to the process by which school location letters are addressed and mailed and, therefore, the district is not entitled to the legal presumption.

The district argues that the parent did not testify that she did not receive the letter; however, there was no evidence of transmittal or presumption of mailing from the district for the parent to rebut.  The parent is correct that the district bears the burden of proof and was required to demonstrate that it notified the parent of the school placement (see Educ. Law § 4404[1][c]).  There is also no independent evidence in the hearing record that the parent did receive notice of the assigned school location (see Ambrister v. Banks, 2025 WL 2775936, at *2 [2d Cir. Sept. 30, 2025] [weighing evidence that the parent visited the school placement well before the school year at issue and there was no indication the school assignment changed]; Rosenberger, 2025 WL 2773299, at *4 [finding that, even if the school location letter was not considered, the hearing record included "other facts that cut against Parent" including the lack of statement in the parent's 10-day notice to the district that the parent had not received a school location letter and parent's admission that she received a delayed school location letter without specificity about the length of the delay]).[15]

Therefore, as there is insufficient evidence in the hearing record to show that the district met its obligation to notify the parent in some form regarding where or how the student could access his IEP services, its failure to provide the requisite "bricks and mortar" school location to the parent constitutes a procedural error.  Here, in her August 2023 letter to the district, the parent stated that she had not "been afforded the opportunity to visit the proposed placement" and that, based on the information available to her, "the size of the school placement offered appear[ed] to be too large" (Parent Ex. C at p. 1).  The parent's letter sufficiently demonstrates that, although she believed that a public non-specialized school location would be too large, she "remain[ed] open" to a public school placement and may have changed her view had she been provided an "opportunity to visit" an assigned school (id.).  Therefore, on this record, it cannot be said that the parent would not have altered her decision to unilaterally place the student at Beacon had she been provided an opportunity to consider an assigned school location (see V.A., 2022 WL 1469394, at *11 [finding the procedural violation significantly impeded the parent's opportunity to participate]; see also Ambrister, 2025 WL 2775936, at *2 [2d Cir. Sept. 30, 2025] [finding no suggestion that the parent would have altered her placement decision had she received earlier notice of a school location given her previous rejection of the school for the same school year and her overall position that no public school would be appropriate]; Rosenberger, 2025 WL 2773299, at *4 [finding such a procedural violation did not amount to a denial of a FAPE where the evidence did not indicate that the parent "had any intent at all to visit or investigate the placement location" and that it seems "inconsequential" to the parent what the school placement was]).  Therefore, under the circumstances presented, the procedural violation resulted in a denial of a FAPE to the student for the 2023-24 school year.

D. Unilateral Placement – Appropriateness of Beacon

Turning now to the district's contention that the unilateral placement of the student at Beacon was inappropriate, a private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129).  Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits.  Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs.  To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential.  They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The program description and the testimony of the principal of Beacon reflects that the school was designed for students who struggle in the general education setting due to behavioral and social challenges (Parent Ex. E at p. 1; F ¶ 6).  According to the description, the school provided students with related services from qualified speech-language therapists, occupational therapists, social workers, and behavioral specialists (Parent Ex. E at p. 1).  The school then-currently served 66 students from kindergarten to eighth grade and provided various special class ratios from 6:1+2 to as large as 10 to 12 students (Tr. p. 36; Parent Ex. F ¶ 6).

In arguing that Beacon did not address the student's needs, the district focuses on the lack of 1:1 paraprofessional support and asserts that the hearing record does not detail how the program met the student's needs or identify how many sessions of speech-language therapy and OT sessions the student received.

Evidence presented regarding the student's needs leading up to the 2023-24 school year is generally consistent with the information included in the January 2023 IEP, with the Beacon 2023-24 progress report and the testimony of the Beacon principal reflecting that the student had gained skills but continued to have needs in the areas of reading, math, writing, expressive and receptive language, sensory processing, and self-regulation (compare Parent Ex. F ¶¶ 20, 21, 24,  and Parent Ex. K at pp. 3, 5, 8, 12, 18, with Dist. Ex. 2 at pp. 1-3).  As for adult support, for the 2023-24 school year the student was placed in a 6:1+2 special class and instruction was provided by a head teacher who had her master's degree in special education, and two paraprofessionals (Parent Ex. F ¶¶ 10-11).  The student's individual weekly schedule included: four 60-minute sessions and two 25-minute sessions per week of reading, four 50-minute sessions per week of math, two 30-minute sessions and two 35-minutes sessions per week of writing, four 30-minute sessions per week of social thinking, two 20-minute sessions per week of rhythmic movement training, two 20-minute sessions per week of "Neuronet," one 60-minute session per week of science/social studies, one 30-minute session per week of executive functioning, and four 10-minute sessions per week of silent reading (Parent Ex. I).  As for related services and, contrary to the district's argument, the schedule reflected that the student received two 30-minute sessions per week of speech-language therapy (in addition to the social thinking and executive functioning classes), two 30-minute sessions per week of OT (in addition to rhythmic movement training and "Neuronet"), and two 30-minute sessions per week of counseling (Parent Exs. F ¶¶ 26-27, 29, 31, 33; I).

According to a progress report for the student for the 2023-24 school year, in reading, the teacher used "Wonders Reading Writing Workshop," literature anthology, and i-Ready online instruction (Parent Exs. F ¶ 20; K at p. 7).  The student's writing goals were addressed through use of journals, teacher made worksheets and activities, grammar sheets, and the "Wonders Program" (Parent Ex. K at pp. 10-11).  Math instruction involved ready practice and problem-solving books and i-Ready online instruction (id. at p. 9).  Speech-language therapy goals were addressed using a combination of books, games, picture cards, worksheets, arts and crafts and other multisensory activities (id. at p. 13).  The student also received classes in social thinking and executive functioning provided by a speech-language pathologist, which focused on engaging students in conversations, role modeling, teaching appropriate social behaviors, and organizations skills such as following multi-step directions (Parent Exs. F ¶¶ 16-17, 32-33; K at pp. 1-2, 16-17).  The social thinking class consisted of lessons, discussions, worksheets, role play, and games to build the student's understanding of social behavior (Parent Ex. K at p. 16).  In OT, the student participated in daily sensory diet as well as individual daily rhythmic movement training exercises (id. at pp. 3-4).  The occupational therapist also used programs and tools like "Neuronet," sensory equipment, writing implements, strengthening tools, games, and "Hart Charts/School Moves" charts (id. at p. 4).  Counseling needs were addressed through play therapy, art therapy, talk therapy, and animal therapy (id. at p. 19).  The student's behavior was managed through use of an individual BIP that included a behavior system, sticker system, and de-escalation strategies, as well as a time out plan (Parent Exs. F ¶¶ 14-16; J).

Based on the foregoing, the hearing record demonstrates that Beacon provided the student with specially designed instruction to meet his unique needs and the district's arguments to the contrary are without merit.

The district also argues that the hearing record reflected that the student did not make progress.  It is well settled that, while a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]), a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364).

However, here, contrary to the district's position, the hearing record reflects that the student made progress during the 2023-24 school year at Beacon.  In reading, the student needed to continue working on all five long-term goals but had mastered 23 out of 31 short-term objectives (Parent Ex. K at pp. 5-7).  According to the principal's testimony, the student "greatly expanded" his comprehension abilities by identifying and describing characters, settings, and major events and retelling stories, demonstrating an understanding of the central message (Parent Ex. F ¶ 21).  The student also identified similarities and differences between two texts on the same topic (id.).  In writing, the student needed to continue working on three out of three long-term goals but mastered 14 out of 20 short-term objectives (Parent Ex. K at pp. 10-11).  According to the principal, the student improved his pencil grasp, letter formation, spacing, and independently formulating sentences (Parent Ex. F ¶¶ 24-25).  In math, the student needed to continue working on two long-term goals but mastered 22 out of 29 short-term objectives (Parent Ex. K at pp. 8-9).  In speech-language therapy, as of June 2024, the student needed to continue working on three out of three long-term goals but mastered eight out of ten short-term objectives (id. at pp. 12-13).  For OT, the student needed to continue three out of three long-term goals but mastered six out of eight short-term objectives (id. at pp. 3-4).  In counseling, the student had mastered one out of five long-term goals and mastered one out of six short-term objectives (id. at pp. 18-19).  Regarding behaviors, the student needed to continue to work on both long-term goals but mastered five out of six short-term objectives (id. at pp. 14-15).  In addition, the progress report reflected that the student mastered his long-term goal of improving social thinking and mastered all seven related short terms objectives (id. at pp. 16-17).  The principal testified that the student improved in his class participation, focus, social skills, including initiating and maintaining appropriate conversations, and expressing frustration calmly (Parent Ex. F ¶¶ 18, 28).  The principal testified that the student "made great strides in his behavior and social skills due to the structure of the behavior system at Beacon and from the interventions provided for him" (id. ¶ 18).

Based on the multitude of evidence and my independent review of the hearing record, I find that Beacon was an appropriate unilateral placement when viewed under the totality of the circumstances.  As discussed above, Beacon provided the student with specially designed instruction in his areas of need, individualized behavior intervention supports, and related services.  Further, the evidence in the hearing record shows that the student made academic, social/emotional, and behavioral progress during the 2023-24 school year.  Together, these factors all support the appropriateness of the parent's unilateral placement of the student.

E. Equitable Considerations

The final criterion for a reimbursement award is that the parents' 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. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; 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"]).

The district contends that equitable considerations require a reduction in any award of tuition on the basis that a certain portion of the school day at Beacon is devoted to religious instruction.  The district does not argue that the religious instruction should be excluded as a matter of constitutional or statutory law.  Rather, the district argues that the religious portions of the school year exceed what the student requires in order to receive a FAPE.

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"]).

With regard to the degree to which the services are segregable, the authority relating to excessive services applies most frequently when the services are delivered in a separate location or by a provider not affiliated with the main tuition-based program and/or where the costs of the services are itemized or separately billed (see, e.g., Application of a Student with a Disability, 23-130; Application of a Student with a Disability, Appeal No. 21-086; Application of a Student with a Disability, Appeal No. 14-071).

The Beacon principal testified that 5.7 percent of the school day was religious in nature (Tr. p. 32).  The district argues that, given the specific percentage identified, that portion is segregable for these purposes, rather than the religious aspects being the type of feature that is "inextricably linked to the substitution" of a private program for a public one (Bd. of Educ. of City Sch. Dist. of City of New York v. Gustafson, 2002 WL 313798, at *7 [S.D.N.Y. Feb. 27, 2002] [finding features such as small class size or greater personal attention were not segregable]).  However, despite the Beacon principal's identification that daily morning prayer and two 30-minute Bible Study periods per week amounted to 5.7 percent of the student's day, he also indicated that, during those periods, "the same behavioral goals were in place" as well as supports for executive functioning, class preparation, and staying on task (Tr. p. 32; Parent Ex. F ¶ 35; see Parent Ex. I).

Thus, despite the percentage noted by the principal, I do not find this a basis for segregating the costs for the portion of the school day devoted to religious instruction.  Moreover, there is no indication in the hearing record that costs for any of the student's classes equates to funding for any other class.  Additionally, as the hearing record provides no concrete information as to the school's method for financing its activities, there was no reasoned way to know what portion of the student's tuition, if any, was actually used to pay for the portions of the school day devoted to religious instruction.  Rather, "the situation does not permit a fair approximation of the value of the services received" compared to the program overall and, therefore, equity supports full reimbursement (Gustafson, 2002 WL 313798, at *7).

Accordingly, there should be no reduction to the direct funding for the costs of the student's tuition at Beacon for the 2023-24 school year based on the provision of religious instruction.

VII. Conclusion

The evidence in the hearing record does not support the IHO's finding that the district offered the student a FAPE for the 2023-24 school year.  The parent met her burden to prove that Beacon was an appropriate unilateral placement and no equitable considerations warrant a reduction or denial of an award of tuition.  Accordingly, the parent is entitled to district funding for the student's full tuition at Beacon for the 2023-24 school year.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision dated February 6, 2025 is modified by reversing the portion which found that the district offered the student a FAPE for the 2023-24 school year and denied the parent's request for district funding of the student's tuition at Beacon for the 2023-24 school year; and

IT IS FURTHER ORDERED that the district shall directly fund the student's full tuition costs for attendance at Beacon for the 2023-24 school year.