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 district) appeals from a decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondent's (the parent's) son and ordered it to fund the student's tuition at the Gersh Autism Academy/West Hills Academy (West Hills) for the 2022-23 and 2023-24 school years.  The appeal must be sustained.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

The student received special education services as a young child through the Early Intervention Program and then through the Committee on Preschool Special Education (Dist. Ex. 22 at p. 1).  For kindergarten and first grade, the student attended a general education class with integrated co-teaching (ICT) and related services and support of a paraprofessional in a district public school (see Tr. pp. 44, 50, 53, 233-34, 1331; Dist. Ex. 22 at p. 2; see also Dist. Exs. 13; 25).  Prior to the school years at issue, he had received diagnoses of a seizure disorder, autism spectrum disorder (ASD), sensory processing disorder, attention deficit hyperactivity disorder (ADHD), and generalized anxiety disorder (Dist. Ex. 22 at pp. 2, 6-7).

A CSE convened on March 21, 2021, found the student eligible for special education as a student with an other health impairment, and developed an IEP for the student for the 2021-22 school year (second grade) (see Dist. Ex. 11).  The CSE recommended he receive ICT services for two hours and fifteen minutes per day, five times per week, along with related services of one 30-minute session per week of small group speech-language therapy, one 30-minute session per week of small group and one 30-minute session per week of individual psychological counseling services, two 30-minute sessions per week of small group (5:1) occupational therapy (OT), and one 30-minute session per week of individual physical therapy (PT) (id. at pp. 10-11).  The CSE also recommended several supplemental aids and services including a daily 1:1 aide (id. at p. 11).  In addition, the CSE recommended the parent be provided with 20 60-minute sessions per year of individual parent counseling and training (id. at p. 10).

A CSE convened on August 17, 2021 and modified the student's recommended programming for the 2021-22 school year (see Dist. Ex. 9).  The CSE found that the student continued to be eligible for services as a student with an other health impairment but changed the student's program recommendation from ICT services to a 12:1+1 special class for four hours and 30-minutes per day, five times per week (compare Dist. Ex. 9 at pp. 1, 10, with Dist. Ex. 11 at pp. 1, 10).  The CSE recommended the same related services and continued to recommend the provision of a 1:1 aide for the student (compare Dist. Ex. 9 at p. 10-11, with Dist. Ex. 11 at pp. 10-11).  The student attended the district's recommended program for the 2021-22 school year (see Dist. Ex. 29).

In March and April 2022, the district conducted a reevaluation of the student (see Dist. Exs. 15-20).  On April 11, 2022, a CSE convened to conduct an annual review and to develop an IEP for the student for the 2022-23 school year (third grade) (see Dist. Ex. 7).  The CSE recommended the student's disability classification be changed from other health impairment to autism to "reflect what [wa]s most impacting him within the school setting" (Dist. Exs. 7 at p. 1; 8 at p. 1).  In addition, the CSE recommended the student attend a 12:1+1 special class five times per week and receive related services of: two 30-minute sessions per week of small group speech-language therapy, one 30-minute session per week of small group and one 30-minute session bi-weekly of individual psychological counseling services, two 30-minute sessions per week of small group (5:1) OT, and one 30-minute session per week of individual and one 30-minute session per week of small group (3:1) PT (Dist. Ex. 7 at p. 12).[1]  The CSE also recommended that the parent receive 20 60-minute sessions per year of individual parent counseling and training (id.).

Around this same time the parent requested an independent educational evaluation (IEE) at public expense in the form of a neuropsychological evaluation, which the district granted (Dist. Exs. 8 at p. 1; 38).  The neuropsychologist who evaluated the student offered diagnoses of autism - level 1 without intellectual impairment, with language impairment; sensory processing disorder; specific learning disorder in reading (dyslexia), and ADHD-combined type (Dist. Ex. 22 at p. 7).  The evaluator's June 15, 2022 report recommended various accommodations and clinical services to address the student's psychological, medical, and educational needs (id. at pp. 7-10).

The student began the 2022-23 school year in the district's recommended program (see Dist. Ex. 27).  On December 8, 2022, a CSE reconvened to review the June 2022 neuropsychological evaluation, as well as the results of an audiological evaluation and a Board of Cooperative Educational Services (BOCES) vision assessment (Dist. Exs. 3 at p. 1; 4).  In addition, the student's special education teacher and related services providers reported on the student's then-present levels of performance (Dist. Ex. 4 at p. 2).  Based on a review of the above, the CSE continued to recommend the student attend a district 12:1+1 special class (Dist. Ex. 3 at p. 14).  In addition to the related services recommended in the student's April 2022 IEP, the CSE recommended that one 60-minute session per week of individual behavior intervention services in the home setting be added to the student's IEP (id. at p. 14).  A December 2022 prior written notice indicated that at the CSE meeting the parent and her advocate requested the student be moved to West Hills, as the parent did not feel the student had made meaningful progress in reading and math in the district program (Parent Ex. 4 at p. 1).  According to the prior written notice, the CSE recommended a psychiatric evaluation of the student (id.).

In a letter dated December 16, 2022, the parent notified the district of her disagreement with the recommendations of the December 2022 CSE and of her intent to unilaterally place the student at West Hills for the remainder of the 2022-23 school year (see Parent Ex. GG).[2]  The parent indicated that she would be seeking reimbursement/funding from the district for the costs of the student's tuition at West Hills and also requested transportation services (id. at p. 2).[3]

On December 22, 2022, the parent signed a "parental guarantee of tuition" agreement with West Hills for the student's attendance from January 3, 2023 to June 23, 2023 (Parent Ex. L).  The agreement specified the amount of the student's January to June tuition and also listed the frequency of and rates for related services of speech-language therapy, OT, counseling, PT, and parent training, as well as the provision of an individual paraprofessional (id. at pp. 1-2).  The student began attending West Hills on January 3, 2023 (Parent Ex. M).

A CSE convened on June 12, 2023 and continued to find the student eligible for special education as a student with autism (see Dist. Ex. 1).  For the 2023-24 school year (fourth grade), the CSE again recommended the student attend a district 12:1+1 special class (id. at p. 13).  In addition, the CSE recommended the student receive the same related services as in his December 2022 1EP with the exception of OT, which the CSE recommended be changed from two group (5:1) sessions per week to one individual and one group (3:1) session per week (compare Dist. Ex. 1 at p. 13, with Dist. Ex. 3 at p. 14; see Dist. Ex. 2 at p. 1).  The CSE recommended extended school year services of three 60-minutes sessions of individualized specialized instruction from July 3, 2023 to August 11, 2023 (Dist. Ex. 1 at p. 14).

In a letter dated June 29, 2023, the parent notified the district of her disagreement with the June 2023 IEP and her intent to unilaterally enroll the student at West Hills for the 2023-24 school year (see Parent Ex. RR).  The parent indicated that she intended to seek reimbursement/funding from the district for the student's unilateral placement (id. at p. 3).

On July 1, 2023, the parent signed a "parental guarantee of tuition" agreement  with West Hills for the student's attendance during the 12-month 2023-24 school year from July 10, 2023 to June 26, 2024 (Parent Ex. KK).  The agreement specified the amounts for the student's summer 2023 and 10-month school year tuition and listed the frequency of and rates for related services of speech-language therapy, OT, counseling, PT, and parent training, as well as the provision of an individual aide (id. at pp. 1-2).

A. Due Process Complaint Notice

In a due process complaint notice dated November 23, 2023, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23 and 2023-24 school years (see Parent Ex. A).

For the 2022-23 school year, the parent asserted that the district denied the student a FAPE on various procedural and substantive grounds (Parent Ex. A at p. 5).  Among the parent's arguments, the parent alleged that the recommended 12:1+1 special class placement was not calculated to produce educational benefit for the student and instead caused regression (id. at pp. 4-5).  The parent asserted the student displayed maladaptive behaviors during the 2022-23 school year that the district failed to address (id.).  Specifically, the parent alleged that the district did not conduct a functional behavioral assessment (FBA) and/or behavioral intervention plan (BIP), failed to recommend board certified behavior analyst (BCBA) services, and that any behavioral interventions on the IEP were insufficient (id. at pp. 5-6, 7).  The parent also argued that the district failed to accurately report the student's present levels of performance and failed to evaluate the student in all areas of disability (id. at p. 5).  According to the parent, the district developed inappropriate and vague goals that were not measurable and failed to recommend appropriate supplementary aids, services, and program modifications to allow the student to make educational gains (id. at pp. 6-7).  In addition, according to the parent, the district did not recommend any assistive technology for the student despite the recommendation of the private evaluator, failed to recommend individual speech-language therapy, failed to recommend a sufficient amount of parent counseling and training, and did not specify the group size for the student's group speech-language therapy and group counseling (id. at p. 7).  The parent alleged that the district denied her the ability to meaningfully participate, that the CSE both dismissed and mischaracterized the recommendations of her experts, and that the CSE engaged in inappropriate predetermination (id.).  For the 2022-23 school year, the parent alleged that she sent timely notices to the district of her disagreement with the CSE and her intent to unilaterally place the student (id. at pp. 5, 7).

Turning to the 2023-24 school year, the parent argued that the June 2023 CSE failed to recommend an appropriate program because the district refused to consider placement at West Hills and continued to recommend the same program that caused the student regression (Parent Ex. A at p. 8).  The parent also alleged that the June 2023 IEP was procedurally and substantively defective (id.).  According to the parent, the district failed to recommend: an appropriate small-class, specialized program; an appropriate transition plan for moving the student from a class of six students to a class of 12 students; or appropriate reading instruction (id. at pp. 8-9).  The parent argued that the district failed to address the student's maladaptive behaviors and the return to the larger class would have returned/increased those behaviors; in addition, the parent argued the district failed to develop a BIP, failed to recommend BCBA services, and the IEP lacked appropriate behavioral strategies (id. at p. 9).  The parent also argued that the district failed to fully and accurately report the student's present levels of performance and only minimally considered information provided by West Hills (id.).  With respect to the 2023-24 school year, the parent also repeated many of the same allegations that she asserted regarding her claim that the district denied the student a FAPE for the 2022-23 school year, arguing the district failed to recommend assistive technology and alleging similar deficiencies as she asserted for the prior year regarding the goals, supplementary aids, services, and program modifications, and recommended services (id. at pp. 9-10).  In addition, the parent argued the district failed to recommend sufficient testing accommodations and extended school year services for the 2023-24 school year (id. at p. 10).  The parent again contended that she was denied the ability to meaningfully participate, that the CSE both dismissed and mischaracterized the recommendations of her experts, and that the CSE engaged in impermissible predetermination (id.).

For relief, the parent requested the district be ordered to fund the student's placement at West Hills for both the 2022-23 and 2023-24 school years, inclusive of summer 2023 (Parent Ex. A at p. 11).  The parent also requested the district reimburse the parent for any transportation expenses (id.).

B. Impartial Hearing Officer Decision

An impartial hearing convened on January 22, 2024, and concluded on October 21, 2024, after twelve days of proceedings inclusive of a prehearing conference (see Pre-Hr'g Conf. Tr. pp. 1-21; Tr. pp. 1-1543).[4]  In a decision dated January 21, 2025, the IHO found that the district failed to offer the student a FAPE for the 2022-23 and 2023-24 school years, that the unilateral placement of West Hills was appropriate for both school years, and that equitable considerations weighed in favor of the parent's requested relief (IHO Decision at pp. 17-20).  The IHO granted the parent's request for district reimbursement/funding of the student's tuition at West Hills and for transportation costs for the period of January 2023 through June 2024 (id. at p. 20).

The IHO summarized the hearing record, the parties' arguments, legal standards, and made findings throughout the decision (IHO Decision at pp. 2-20).  Regarding the 2022-23 school year and the parties' dispute about whether the student had made sufficient progress in the public school program prior to the parent removing the student and unilaterally placing him at West Hills in January 2023, the IHO noted some evidence of educational progress in the district's program but held that de minimus growth was not sufficient considering the student's circumstances (id. at pp. 7, 12-13).  According to the IHO, the district must use interventions that target the student's unique disabilities (id. at p. 7).  The IHO noted the parent's concerns that the district failed to evaluate or address the student's dyslexia (id. at p. 14).  The IHO further referenced evaluations that recommended ABA services and placement in a small setting; the IHO noted that the CSE instead recommended a 12:1+1 special class placement with no ABA (id. at pp. 9, 13).  According to the IHO, "[l]ack of provision of the type of program and services that a consensus of evaluations indicate are needed constitute[s] a denial of FAPE" (id. at p. 9).  While the IHO acknowledged that district personnel who worked with the student and evaluated the student did not share in the consensus that the student required ABA services, the IHO ultimately determined that the district erred by not recommending ABA services (id. at pp. 13, 15).

With respect to the student's behavior, the IHO summarized the parties' differing viewpoints and evidence in the hearing record that described the student's behavioral needs (IHO Decision at pp. 9-10, 13).  The IHO found that the district conducted an FBA and had "strategies that to a degree addressed and managed the student's problematic behavior," but that the district did not develop a BIP, evidence demonstrated the student struggled in school, and his "problematic behavioral pattern was present at least somewhat in school" (id. at pp. 9-10, 13, 16).  The IHO noted that the district incorporated some of the concerns of the parent, such as adding summer services, which showed that the parent's ideas were considered and the CSE outcomes were not predetermined (id. at p. 9).  Regarding the parent's argument that the district failed to recommend adequate educational services for summer 2023, the IHO found that the district's recommended extended school year services were appropriate (id. at p. 15).  However, the IHO found that the district did not offer appropriate testing accommodations to address the student's attention needs (id.).

The IHO concluded his analysis regarding whether the district offered the student a FAPE by restating his understanding of the parties' positions (IHO Decision at pp. 17-18).  The IHO ultimately determined that the district's program was not appropriate because the student's progress was inadequate and the student was "struggling" (id. at p. 18).  The IHO stated:

It is clear from the case law that the district need not have provided the world's best program; it only needed to provide an appropriate program.  But with the student struggling, as described above, it appears to me that the program provided by the district was not appropriate in light of the circumstances.  Who can blame the parent for wanting her son in a program where the student could thrive rather than struggle?  Autism and the other educational and mental health issues that this student has are no small matters.  A program such as the district provided allowed for progress but it was inadequate, it seems to me, if it left the student struggling.

(id.).  The IHO next described the student's attendance at West Hills, which the IHO contrasted to the district's program by finding "the student apparently has been experiencing success and thriving in the unilateral placement, where he has progressed while eagerly attending school" (id.).  The IHO dismissed the district's arguments that West Hills was not an appropriate placement because it was too restrictive, that the student's in-school behaviors significantly increased in severity and frequency at West Hills, and that West Hills failed to provide the student with OT for two months due to a staffing shortage (id. at pp. 18-19).  The IHO concluded that the unilateral placement was appropriate (id. at p. 19).  The IHO also found that equitable considerations did not provide a basis for reducing an award of tuition funding (id. at pp. 19-20).  Accordingly, the IHO ordered the district to pay the student's tuition and transportation costs at West Hills for the period of January 2023 to June 2024 (id. at p. 20).

IV. Appeal for State-Level Review

The district appeals, alleging that the IHO erred in finding that it failed to provide a FAPE to the student for the 2022-23 and 2023-24 school years.  According to the district, the IHO erred in finding that the district should have developed a BIP as the student did not engage in any behaviors that impeded his learning or the learning of others that were not appropriately addressed in the classroom.  The district asserts that the student made meaningful progress academically, socially, emotionally, and behaviorally in the district's 12:1+1 special class and the IHO erred by finding regression based on his interpretation of the student's i-Ready and Lexile scores.  Additionally, the district argues that the IHO erred in finding that ABA was a necessary service for the student because there was never a clear consensus regarding the need for ABA.  Further the district alleges that the IHO erred in finding that the CSEs' failure to recommend testing accommodations of time and a half denied the student a FAPE.

The district argues that the unilateral placement was not appropriate because it was overly restrictive and was not a State-approved school.  The district asserts that the student's behaviors increased when he started attending the unilateral placement and the school did not conduct an FBA until May 2023.  Lastly, the district argues that equitable considerations did not favor the parent's requested relief because she failed to have an open mind at the December 2022 CSE meeting as she had already contacted the unilateral placement at that point.

In an answer, the parent responds to the district's allegations and asserts that the IHO's decision should be upheld in its entirety.  In a reply, the district reiterates its allegations as set forth in the request for review.

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

A. Preliminary Matters – IHO Decision and Scope of Review

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination.  The decision shall reference the hearing record to support the findings of fact" (8 NYCRR 200.5[j][5][d][v]).  Moreover, State regulations further require that an IHO "render and write decisions in accordance with appropriate standard legal practice" (8 NYCRR 200.1[x][4][v]; see also 20 U.S.C. § 1415[f][3][A][iv]; 34 CFR 300.511[c][1][iv]).

Although the IHO made several findings and included citations to the hearing record in his written decision, the decision was meandering and, at times, the IHO's findings were internally contradictory and it was difficult to decipher what statements reflected the parties' arguments as opposed to the IHO's findings (e.g., "There were problematic behaviors in school but the district was finding ways to address them" [IHO Decision at p. 15]).  An IHO is also required to issue findings on the discrete issues identified in a party's due process complaint notice; here, the IHO ignored or made ambiguous observations rather than findings on many of the issues raised by the parent in her due process complaint notice.  While it is clear that the IHO ultimately found that the district failed to offer the student a FAPE for both the 2022-23 and 2023-24 school years, the decision fails to address the parties' arguments specifically relating to the 2023-24 school year and it seems that the basis for the IHO's finding that the district failed to offer the student a FAPE for the 2023-24 school year was that the district did not offer a FAPE for the prior 2022-23 school year because the student struggled and made inadequate progress (see IHO Decision at p. 18).

Notwithstanding the IHO's somewhat equivocal decision and the many unaddressed issues, the district was able to identify in its request for review the IHO's rulings it seeks to reverse or modify and present arguments in support of its position (Req. for Rev.; see 8 NYCRR 279.4[a], 279.8).  Likewise, the parent was able to respond to the allegations in the district's request for review and argue that the IHO's decision should be upheld (Answer).  Thus, this is not a case where meaningful review of the IHO's decision is precluded due to deficiencies with the IHO's decision (cf. Application of the Dep't of Educ., Appeal No. 14-058 [remanding the matter because the IHO's cursory analysis made meaningful review impossible]; Application of a Student with a Disability, Appeal No. 10-086 [finding meaningful review was not possible because the IHO's decision was not written in accordance with State regulations]).  However, the IHO is reminded to clearly state his findings tied to the issues, cite to the hearing record or legal authority to support his findings, and adequately explain his reasoning for his determinations.

In determining the scope of issues properly before me on appeal, the parent failed to cross appeal three specific findings by the IHO that were adverse to her.  Specifically, the IHO held that the CSE recommendations were not predetermined and the district incorporated suggestions raised by the parent into the recommended program, the parent was afforded participation in that her concerns were "listened to and recognized," and that the recommended extended school year services were appropriate (IHO Decision at pp. 9, 12, 15).  Accordingly, these findings have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).  The main disputes between the parties on appeal relate to the degree to which the CSEs addressed the student's behavioral and reading needs and the appropriateness of the recommended 12:1+1 special class with related supports and accommodations.

B. 2022-23 School Year

The December 2022 IEP was the operative IEP in place at the time of the parent's placement decision for the 2022-23 school year (see Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 173 [2d Cir. 2021]; R.E., 694 F.3d at 187-88).  Therefore, for purposes of this appeal, only the recommendations set forth in the December 2022 IEP are at issue, although discussions and materials relied upon by the April 2022 CSE may also be relevant to the review of the ultimate recommendations included in the operative December 2022 IEP.

1. Evaluative Information

In order to frame the issues to be addressed on appeal and to the extent the parent asserted in the due process complaint notice and argues in her memorandum of law in support of her answer that the December 2022 CSE did not have before it sufficient evaluations (see Parent Ex. A at p. 5; Parent Mem. of Law at pp. 19-20), I will discuss the evaluative information before the CSE.  A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]).  A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).  Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).  In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]).  A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]).  An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]).

According to the December 2022 CSE meeting attendance sheet, meeting participants included the district director of pupil personnel services who acted as the CSE chairperson, along with the elementary school principal, school psychologist, social worker, speech-language therapist, special education teacher, reading teacher, occupational therapist, physical therapist, regular education teacher, and the student's private behavior specialist, educational consultant/advocate, private psychologist, audiologist, and the parent (Dist. Ex. 3 at p. 1; see Tr. pp. 227-29, 279).  A December 2022 prior written notice indicated that the CSE considered the reports and evaluations listed within the December 2022 IEP present levels of performance as follows: a March 3, 2022 educational evaluation, a March 13, 2022 OT evaluation, a March 14, 2022 FBA, a March 17, 2022 speech-language evaluation, a March 30, 2022 PT evaluation, a March 31, 2022 psychological evaluation, a March 31, 2022 social history, a March 31, 2022 classroom observation, an April 2022 vision evaluation, a June 14, 2022 vision evaluation, a June 15, 2022 neuropsychological evaluation, a September 27, 2022 psychiatrist correspondence, and an October 1, 2022 auditory skills assessment report (Dist. Exs. 3 at pp. 2-3; 4 at p. 4; see Dist. Exs. 15-24).

The March 2022 educational evaluation report indicated the evaluation was completed during the student's second grade school year while attending the district's 12:1+1 special class (Dist. Ex. 15).  In relation to the student's behaviors, the evaluator described the student as social, happy, friendly, and receptive to testing, and reported the student was "eager to participate in all tasks presented to him and he completed the work without hesitation" during both testing sessions (id. at pp. 1, 2).  On a standardized measure of academic achievement the student received a standard score of 72 in broad reading, classified as "[l]ow"; a standard score of 81 in broad math, classified as "[l]ow [a]verage"; and a standard score of 85 in broad written language, classified as "[l]ow" (id. at p. 1).

The March 2022 OT evaluation report indicated that the student, during OT sessions twice per week in a small group, actively participated, transitioned "nicely" between the classroom and therapy room and between activities, and participated in tabletop activities (Dist. Ex. 16 at p. 1).  According to the evaluator, during testing the student "was cooperative and demonstrated a good work ethic" (id. at p. 2).  Standardized testing yielded scores in the average range for general visual perception and motor-reduced visual perception, and in the poor range for visual motor integration, with the student exhibiting some deficits in his ability to make precise and accurate fine motor and visual motor movements (id.).  The OT evaluation report stated that areas addressed during therapy sessions included fine motor, graphomotor, and spatial awareness skills with noted progress in the student's ability to grasp and manipulate objects, copy words and sentences, and recall and copy letters in sequential order (id. at pp. 2-3).  However, the OT evaluation report noted the student's continued need for visual and verbal cues for spacing, sizing, and line orientation (id. at p. 3).

Due to parent concerns regarding the student's behavior at home and in the classroom setting, on March 14, 2022, the district conducted an FBA, using the following assessment measures: two direct observations by the school psychologist, teacher and parent report, and two informal assessments (a questionnaire and a rating scale) completed by the special education teacher (Dist. Ex. 17).  The FBA identified escape and avoidance as the primary functions of the student's behavior, and noted the student appeared to be attempting to access more preferred activities than those presented to him (id. at pp. 1-2, 5).  The FBA also noted the student's diagnoses, including generalized seizure disorder, ADHD, ASD, and generalized anxiety disorder, and considered the impact of medications on his behavior (id. at pp. 4-5).

Next, the CSE considered a speech-language assessment of the student conducted by the district on March 29, 2022 (Dist. Ex. 18).  The resultant speech-language assessment report indicated the student was cooperative during most of the testing session; however, at times he would state he wanted to be done, in which instances reinforcement and encouragement were sometimes successful in assisting the student with participation (Dist. Ex. 18 at p. 1).  According to the report, the student scored below average on receptive, expressive, and pragmatic language tasks as well as on measures of language content and language structure (id. at p. 4).  During testing, the student demonstrated the ability to understand the relationships between words, follow directions with up to two step commands, and recall simple sentences presented orally; however, the student had difficulty following directions of increasing length and complexity, formulating correct sentences given pictures, and recalling information from orally presented paragraphs (id.).  The speech language pathologist/evaluator reported that during speech-language sessions the student enjoyed interacting with peers and engaging in conversation during preferred topics (id. at p. 5).  However, he required verbal prompts to assist him with engaging in conversations during nonpreferred topics, using appropriate body language, and engaging in turn-taking appropriately throughout conversations and while playing games (id.).

According to the March 30, 2022 PT evaluation report considered by the CSE, the student demonstrated limitations in strength and endurance that impacted his ability to navigate the school and partake in gross motor activities with his peers, as well as deficits in coordination (Dist. Ex. 19 at p. 4).  The report indicated that compared to his peers the student's motor proficiency was well below average (id.).

The district conducted a psychological evaluation of the student over two days in March and April 2022 as part of an updated triennial evaluation (Dist. Ex. 20 at p. 1).  The corresponding report included behavioral observations of the student during testing which indicated rapport was easily established during testing, the student appeared happy throughout testing, and the student asked for breaks, which were provided, with positive praise for returning to task (id. at p. 2).  The evaluator reported the student required prompting and positive praise to complete tasks (id.).  According to cognitive testing, the student received a full-scale intelligence quotient (FSIQ) standard score of 82, which fell within the low average range (id.).  Specifically, the student received scores within the average range on the verbal comprehension index and visual spatial index, with standard scores of 95 and 105, respectively (id. at p. 3).  The psychoeducational evaluation report indicated the student's performance yielded scores in the low average range on the fluid reasoning index with a standard score of 88, and a processing speed index standard score of 83, as well as a standard score of 73 in the very low range on the working memory index (id. at pp. 2-5, 7).[6]

In the area of behavioral functioning, completion of the Conners 3 – Teacher Short Form (Conners 3) questionnaire by the student's special education teacher indicated elevated areas related to learning problems/executive functioning (Dist. Ex. 20 at p. 4).  According to the Conners 3 completed by the special education teacher, the student's behavior in areas such as inattention, hyperactivity/impulsivity, defiance/aggression, and peer relations was "considered to be typical for a child his age, according to teacher answers" (id.).  Both the student's parent and special education teacher completed the Behavior Assessment System for Children, Third Edition (BASC-3) (id.).  With regard to externalizing problems, the parent responses yielded scores that fell in the clinically significant range, with the parent reporting the student engaged in "many disruptive, impulsive and uncontrolled behaviors" at home (id.).  In addition, the student's aggression was determined to be in the "at-risk" range with the student displaying defiant, argumentative, and aggressive behavior within the home (id.).  In contrast, the special education teacher responses suggested that, within the school setting, the student did not display any significant levels of hyperactivity, aggression, or conduct problems (id.).  In relation to internalizing problems, the parent answers suggested the student often appeared withdrawn, pessimistic, and/or sad, which resulted in a depression score in the clinically significant range; while in comparison, the special education teacher did not indicate the student presented with anxiety-based or depressive behaviors within the school setting (id. at pp. 4-5).  According to the psychoeducational evaluation, the special education teacher did not indicate that the student had significant difficulty maintaining necessary levels of attention any more so than his peers, whereas the parent identified attention problems within the clinically significant range (id. at p. 5).  The special education teacher identified learning problems as an area where the student was in the at-risk range and reported that the student experienced difficulty comprehending and competing schoolwork across academic areas, on grade level (id.).  The parent reported the student's adaptive skills to be within the clinically significant range as related to adaptability, leadership, activities of daily living (ADLs), and functional communication (id.).  The special education teacher reported in the areas of social skills, leadership, and study skills that the student was in the at-risk range (id.).

The December 2022 CSE also had available for review the results of an April 2022 Shore Vision eye exam report in which the student was diagnosed with convergence insufficiency, other specified disorders of binocular movement, bilateral hypermetropia, and fusion with defective stereopsis (Dist. Ex. 35 at p. 2).  The evaluating physician noted that students with poor visual convergence and tracking often became frustrated over time and would lose concentration and recommended that the student receive OT and classroom accommodations (id.).[7]

Also available for the CSE's review were the results of a June 15, 2022, neuropsychological evaluation completed as an IEE at the request of the parent (Dist. Ex. 22 at pp. 1-2; see Dist. Ex. 8 at p. 1).  Included in the background section of the neuropsychological evaluation report was information provided by the parent (Dist. Ex. 22 at pp. 1-2).  Notably the parent reported the student's placement in an inclusion class in first grade led to major anxiety, that an FBA was conducted in January 2022 FBA, and that the introduction of medication around the same time "caused improvements in behavior and resulted in no data for the BIP" (id. at p. 2).  Per parent report, the student demonstrated "homework refusal and physical aggression at home but not at school" and could "keep it together at school" and exhibited more problematic behaviors when he returned home (id.).  The neuropsychological evaluation report noted the results of the district's recent cognitive and academic testing, rather than repeating it (id. at pp. 2-3).

The June 2022 neuropsychological revaluation report included the results of new language testing that yielded average results as related to the student's language fluency and expressive vocabulary as compared to the district's previous March 2022 language testing which yielded below average results (compare Dist. Ex. 22 at pp. 4, 11-12, with Dist. Ex. 18 at pp. 1-4).  According to the evaluator, the student's performance on a measure of verbal learning and memory fell in low average range while his performance on a measure of immediate visual memory fell in the average range (Dist. Ex. 22 at p. 4).  The evaluator reported the student's overall memory appearing intact (id. at pp. 4, 5).  In relation to visual perceptual testing, the student demonstrated low average skills, and in visual motor integration, the student performed in the very low range as compared to previous testing, which indicated poor skills (compare Dist. Ex. 22 at pp. 4, 12, with Dist. Ex. 16 at pp. 1-2).  The evaluator noted that with regard to attention/executive functioning, the student demonstrated performance levels varying from the average (planning) to the low (immediate auditory attention) to the very low (complex attention/switching) range (Dist. Ex. 22 at p. 5).  According to a sensory profile completed by the student's parent, overall results indicated clinical differences with the student's processing of sensory information (id.).  In the area of social responsiveness, the parent responses on an administered scale suggested severe differences as related to the student's social cognition, whereas the special education teacher's responses suggested mild differences (id.).  The parent reported the student tended to take things too literally, avoided eye contact, showed inflexible behaviors under stress, had difficulty with changes to his routine, and difficulty making friends even when trying his best (id. at p. 6).

Further, the June 2022 neuropsychological evaluation reported on the completion of the Conners Comprehensive Behavior Rating Scales by both the parent and special education teacher (Dist. Ex. 22 at p. 6).[8]  Both the special education and parent indicated clinically significant concerns in areas of academic and language scales (id. at pp. 6, 12).  However, whereas the parent responses revealed elevations on emotional distress, upsetting thoughts, social problems, hyperactivity, physical symptoms, perfectionist compulsive behaviors, defiance, and aggressive behavior scales, the teacher responses were not suggestive of clinically significant struggles in these areas (id.).  Further, the parent indicated elevated responses in areas of hyperactivity, and ADHD, inattentive areas (id.).

The June 2022 neuropsychological evaluation reported, based on prior district testing, that the results of the educational evaluation conducted in March and April 2022 were "suggestive of struggles in math and written expression and a specific reading disorder ([d]yslexia)" as the student's broad reading scores fell below expectations for the student's age and intellect (Dist. Ex. 22 at p. 6).  The June 2022 neuropsychological evaluation found that the student met the criteria for diagnoses of autism level 1, without intellectual impairment, with language impairment; and ADHD, combined type; in addition to diagnoses of sensory processing disorder, and specific learning disorder in reading (dyslexia) (id. at p. 7).  The evaluator made several recommendations discussed further below (id. at pp. 7-9).

Also before the December 2022 CSE was a September 2022 letter from the student's private psychiatrist (see Dist. Ex. 23).  The letter reviewed the student's diagnoses and reported that recent neuropsychological testing showed significant deficits in the student's reading and overall regression of skills (id.).  In the letter, the private psychiatrist recommended the student attend a specialized educational setting that provided individualized instruction and structured behavioral support such as West Hills or a similar program (id.).

An October 2022 auditory skills evaluation was completed over two days to determine if the student had an auditory processing disorder that contributed to his reading, language and learning challenges and to determine any strategies or programs to support the student (Dist. Ex. 24 at p. 3).  The evaluating audiologist reported that initially the student was attentive and cooperative during the audiological part of the evaluation; however, when given the words in noise test, the student engaged in tantrum behavior, refused to participate, and could not calm (id.).  Therefore, testing was rescheduled for a day when his ABA therapist could accompany him (id.).[9]  The student returned for testing several days later accompanied by his ABA provider, and the audiologist resumed testing and confirmed the validity of the hearing loss identified in the first testing session (id.).  However, the student again refused to cooperate with the word list presented under headphones, and again engaged in tantrum behavior, did not self soothe, nor could be brought back to task by his ABA provider or parent (id.).  The audiologist reported that the student "became self-injurious and prone to hurting others with his flailing arms and legs" (id.).  The evaluator indicated the student exhibited hearing within normal limits for the left ear, and a moderate 55 dB hearing loss at 3,000 to 4,000 Hz in the right ear (id.).  The audiologist characterized the student's word recognition in quiet as "good', bilaterally but noted that when presented with noise through headphones the student demonstrated noncompliant behaviors and refused to participate, thus an auditory processing disorder could not be ruled out (id. at p. 4).  The student participated in one subtest on the SCAN-3: C, Test of Auditory Processing Disorders in children that involved discerning a word through filtered speech, and he completed the task within the average range (id. at p. 5).  The evaluator described two additional tests of auditory comprehension and auditory short-term memory that the student "could not participate, given his meltdown" (id.).[10]

The parent claims that the district failed to evaluate the student to explore a diagnosis of dyslexia.  The June 2022 neuropsychological evaluation considered by the December 2022 CSE offered a diagnosis of a specific learning disorder in reading (dyslexia) (Dist. Ex. 22 at p. 7).  However, the district school psychologist testified that the evaluation did not include reading assessments that she would have expected to support the diagnosis, noting that the evaluator relied on the district's educational testing from March and April 2022 as support for the diagnosis (Tr. p. 143; Dist. Ex. 22 at p. 6; see Dist. Ex. 15 at p. 1).  The district school psychologist also indicated that it had never been raised before that there was a need to explore a possible diagnosis of dyslexia for the student (Tr. p. 144).  During the CSE meeting, the parent raised concerns about the student's reading, but the district members of the committee responded that, in their view, the student had been making meaningful progress in reading (Dist. Ex. 1 at pp. 1, 3).  Information before the CSE regarding the student's progress is discussed separately below.  The CSE agreed, however, to gather further information from the next iReady and system 44 reading program progress monitoring and to follow up with the parent to review (id. at pp. 3-4).

Based on the information summarized above, the evidence in the hearing record reflects that the CSE met twice to discuss the student's educational plan for the 2022-23 school year and had extensive information from multiple evaluations related to the student's cognitive, academic, social/emotional, and related services needs, in addition to an independent neuropsychological evaluation and verbal input from CSE members.  While the parent alleges that additional evaluations should have been conducted to assess the student's reading deficits, "[t]he IDEA does not compel a school district to perform every sort of test that would arguably be helpful before devising an IEP" (Cruz v. Banks, 2024 WL 1309419, at *8 [S.D.N.Y. Mar. 27, 2024]).  Moreover, the district responded to the parent's concern with a plan to review additional progress data and, as discussed further below, sufficiently address the student's reading deficits.  Therefore, the hearing record supports a finding that the district fully evaluated the student for the 2022-23 school year and the student was not denied a FAPE for the 2022-23 school year on this ground (see J.C.S. v Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, at *10 [S.D.N.Y. Aug. 5, 2013]; D.B. v. New York City Dep't of Educ., 2011 WL 4916435, at *8 [S.D.N.Y. Oct. 12, 2011]). 

Moreover, the present levels of performance in the December 2022 IEP reflect the evaluative information discussed above, and the annual goals are measurable and targeted to address the student's needs in the academic, social/emotional, and related services realms with criteria, method, and schedule identified (Dist. Ex. 3 at pp. 12-14).[11]

2. Progress

With the above information that was available to the December 2022 CSE in mind, I turn to the district's appeal of the IHO's finding that the student made "de minimus growth" in the public school program in the time leading up to the December 2022 CSE meeting, which was not sufficient considering the student's circumstances (IHO Decision at pp. 7, 12-13).

It is well settled that a student's progress under a prior IEP is a relevant area of inquiry for purposes of determining whether an IEP has been appropriately developed, particularly if the parents express concern with respect to the student's rate of progress (see H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 Fed. App'x 64, 66-67 [2d Cir. 2013]; Adrianne D. v. Lakeland Cent. Sch. Dist., 686 F.Supp.2d 361, 368 [S.D.N.Y. 2010]; M.C. v. Rye Neck Union Free Sch. Dist., 2008 WL 4449338, *14-*16 [S.D.N.Y. Sept. 29, 2008]; see also "Guide to Quality Individualized Education Program (IEP) Development and Implementation," Office of Special Educ. Mem. [Revised Sept. 2023], available at https://www.nysed.gov/sites/default/files/programs/special-education/guide-to-quality-iep-development-and-implementation.pdf).  The fact that a student has not made progress under a particular IEP does not automatically render that IEP inappropriate, nor does the fact that an IEP offered in a subsequent school year which is the same or similar to a prior IEP render it inappropriate, provided it is based upon consideration of the student's current needs at the time the IEP is formulated (see Thompson R2–J Sch. Dist. v. Luke P., 540 F.3d 1143, 1153-54 [10th Cir.2008]; Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520, 530 [3d Cir. 1995]; S.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523, at *10 [S.D.N.Y. Dec. 8, 2011]; D. D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *12 [E.D.N.Y. Sept. 2, 2011], aff'd, 506 Fed. App'x 80 [2d Cir. 2012]; J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 650 [S.D.N.Y. 2011]).  Conversely, "if a student had failed to make any progress under an IEP in one year, courts have been "hard pressed" to understand how the subsequent year's IEP could be appropriate if it was simply a copy of the IEP which failed to produce any gains in a prior year (Carlisle Area Sch. Dist., 62 F.3d at 534 [noting, however, that the two IEPs at issue in the case were not identical]; N.G. v. E.L. Haynes Pub. Charter Sch., 2021 WL 3507557, at *9 [D.D.C. July 30, 2021]; James D. v. Bd. of Educ. of Aptakisic-Tripp Cmty. Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 827 [N.D. Ill. 2009]).

Here, the hearing record includes a progress report from the student's prior 2021-22 (second grade) school year, the student's first year in the 12:1+1 special class setting (see Dist. Exs. 9 at p. 1; 10 at p. 1).  The progress report was before the April 2022 CSE (Dist. Ex. 8 at p. 1).[12]  The 2021-22 progress report stated that the student made progress towards goals related to study skills, academics, speech-language therapy, social/emotional/behavioral development, and motor skills (Dist. Ex. 26 at pp. 3-10).  According to the progress report, by March 2022, the student had achieved his study skill goal related to following directions and his motor skills goal related to grasping, manipulating, and holding an object to complete a classroom activity (id. at pp. 3, 9).  In addition, the student was progressing satisfactorily on goals related to reading sight words, adding details to a graphic organizer, comparing numbers, creating a follow-up question related to a conversational topic, expressing a possible solution to a problem, identifying coping strategies, stating how a character should respond to social cues, transcribing using near point copying, and using an adaptive writing utensil to copy symbols, letters, and words (id. at pp. 4-8, 10).

The December 2022 prior written notice also reflects that the CSE reviewed the student's progress related to IEP goals (Dist. Ex. 4 at p. 3).  A 2022-23 progress report for the November 2022 marking period provides information regarding the student's performance on annual goals in areas of study skills, reading, writing, mathematics, speech-language skills, social/emotional and behavioral development, and motor skills (see Dist. Ex. 27).  The progress report stated that the student was "[p]rogressing [g]radually" in study skills and commented that the student raised his hand and waited to be called on in one out of four trials (id. at p. 3).  Per the report, the student made inconsistent progress related to a reading goal that addressed blending words as he blended two out of four words on occasions, and on other occasions only one out of four words (id. at p. 4).  On another reading goal that addressed reading 75 percent of words in a passage, the progress report included a comment that the student at times put forth effort in reading a passage while skipping unfamiliar words, and at other times did not put forth effort (id.).  The progress report indicated that the student progressed satisfactorily in writing two to three organized sentences and was progressing gradually in his ability to spell sight words and to identify which operations to use in presented word problems (id. at pp. 5-6).  The report indicated the student made gradual progress in solving two-digit addition and subtraction problems with regrouping (id. at p. 6).  With regard to the student's speech-language skills, the progress report stated that the student was progressing satisfactorily toward all three IEP goals including formulating grammatically correct sentences, using appropriate body language during conversational speech, and engaging in turn-taking for three reciprocal exchanges during conversational speech (id. at p. 3).  The progress report also indicated that the student was progressing satisfactorily on two social/emotional/ behavioral goals that included maintaining a social exchange and creating relevant follow-up questions during conversational exchanges and responding with a positive solution to a distressing hypothetical situation (id. at p. 8).  On another goal in this area the progress report recorded the student as progressing gradually in responding appropriately to social cues of his peers (id.).  In the area of motor skills, the progress report indicated the student was progressing satisfactorily in four out of six motor goals including completing exercises for core strength, balance and coordination; participating in physical activity for five to 10 minutes; descending stairs; and completing fine motor activities for a minimum of 15 minutes with no more than two verbal or physical prompts (id. at pp. 9-10).  For the other two motor goals the student progressed gradually in copying four sentences with appropriate sizing, space, and line orientation; and using "far point copying skills" to copy two sentences (id.).

The student's second grade report card showed that the student was working toward or meeting the standards for grade level work (Dist. Ex. 29).  Third trimester teacher comments indicated that the student was becoming more confident and taking risks when reading, had put more effort into classwork, and appeared more confident in solving math programs (id. at p. 2).  The first trimester third grade report card shows that the student was meeting grade level standards for literal comprehension but was below or working towards grade level standards in all other ELA areas and in math (Dist. Ex. 30).  Teacher comments indicated that the student was struggling "with reading with accuracy and appropriate fluency, applying grade level mechanics in writing, and demonstrating fluency of math facts," but that the district was continuing to "develop ways to support" the student (id. at p. 2).  The IEP reported the student's comprehension and vocabulary scores on lesson tests ranged from 60-100 on lessons 1-6 of the district's curriculum (Dist. Ex. 3 at p. 7; see Tr. pp. 487-88).

In addition, the December 2022 prior written notice reflected that the student's special education teacher reported to the CSE on the student's progress including skills, areas of growth, and areas of deficit (Dist. Ex. 4 at p. 3).  The special education teacher reported that the student followed routines and was an active participant in the classroom (id.).  According to the prior written notice, the special education teacher reported the student made "gains in his personalized instruction in the area of math," as well as gains in reading, and the teacher reported the student's diagnostic scores in these areas (id.).  The special education teacher also described the student's progress in relation to his IEP goals and chronicled the student's ongoing needs (id.).

The goal progress reports and report cards reflect that the student made meaningful progress during the 2021-22 school year and continued to work on areas of need during the 2022-23 school year.  The IHO acknowledged the goal progress reports and other evidence of progress, yet appeared to be persuaded that the student's progress was insufficient based on the parent's argument that the student demonstrated "regression in cognitive areas over time" as demonstrated by comparing Wechsler Preschool and Primary Scale of Intelligence-Fourth Edition (WPPSI-IV) scores from 2019 and Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V) scores from 2022 as well as comparison of Lexile and i-Ready scores (IHO Decision at pp. 5-8, 12, 13-14, 17-18).

With respect to the diagnostic scores, the student's June 2022 Lexile reading measure was reported as 180 (Dist. Ex. 43 at p. 3).  After the summer, the student's Lexile reading measure in September 2022 was 145 (Parent Ex. J).  The student's iReady reading scores went from 387 in September 2021, to 412 in January 2022, and 416 in May 2022 (Dist. Ex. 43 at pp. 3-4).  The scores reported for specific domains reflected that, by June 2022, the student had improved such that he "tested out" for the phonological awareness skills and was consistently approaching second grade placement level for vocabulary and comprehension of informational texts (id.).  The student's scores in phonics and high-frequency words stayed at a "needs improvement" level (id.).  The student's score in comprehension of literature went from "approaching grade 2" to "needs improvement," which the elementary school principal indicated could be attributable to the student "having a bad day" or not being "as interested in" the stories that he was reading (Tr. p. 267; Dist. Ex. 43 at pp. 3-4).  In September 2022, the student's iReady reading diagnostic score was 409 with an overall grade kindergarten placement but a grade 1 placement for comprehension of information text (Parent Ex. J).  According to iReady "growth monitoring," the student improved to a 447 in October 2022 and 493 in November 2022 (Dist. Ex. 3 at p. 7).  According to the December 2022 prior written notice, at the CSE meeting the special education teacher reported the student "passed 17/19 of his reading lessons in his personalized i[R]eady instruction" (Dist. Ex. 4 at p. 3).  Per the prior written notice, the special education teacher described the student as an active listener during reading periods and noted that the student enjoyed answering comprehension questions (id.).

In math, for the 2021-22 school year, the student's iReady math scores went from 371 in September 2021 and 382 in January 2022, reflecting that the student "need[ed] improvement," to a 400 in June 2022, approaching a second grade placement level (Dist. Ex. 43 at pp. 1-2).  In September 2022, the student's baseline iReady math score was 396, at a first grade placement level, and he achieved "growth monitoring scores" of 426 in October and 397 in November (Dist. Ex. 1 at p. 7).

The elementary school principal testified that the iReady diagnostic was not developed to make direct comparisons from one school year to the next, noting that, for each grade level, the diagnostic used "different standards and different levels that the student needs to achieve at that grade level" (Tr. pp. 275-76).  She also noted that, for tests administered at the beginning of the school year, the scores may reflect that the students were "starting up . . . the school year" and that they hadn't "learned th[e] material yet" for the new grade level (Tr. p. 277).

Overall, given other evidence of progress, contrary to the IHO's finding, the student's iReady and Lexile scores do not demonstrate regression notwithstanding some intermittent scores that were not upward trending (L.S. v. Union Free Sch. Dist. of the Tarrytowns, 2024 WL 1859970, at *14 n.19 [S.D.N.Y. Apr. 29, 2024] ["That a student's progress is not linear does not mean it is not meaningful progress"]).

With respect to the cognitive scores, as summarized above, the March/April 2022 psychological evaluation summarized the results of October 2019 cognitive testing based on administration of the WPPSI-IV, in which the student obtained a FSIQ of 103, and indices scores as follows: processing speed of 94, verbal comprehension of 114, visual spatial of 115, fluid reasoning of 109, and working memory of 87 (Dist. Ex. 20 at p. 2).  The evaluation also reported results from the evaluator's administration of the WISC-V which yielded a FSIQ of 82, in the low average range, with scores within the average range on the verbal comprehension index (95) and visual spatial index (105), in the low average range on the fluid reasoning index (88) and a processing speed index (83), and in the very low range on the working memory index (73) (id. at pp. 2-5, 7).  The student's private psychologist testified that the scores reflected "a significant decline" which was "concerning because usually that's something that's more static" (Tr. pp. 1263-64).  She later acknowledged that the WPSSI-IV was an assessment only provided to preschool students and was designed to take into account limited verbal capacity, whereas the WISC-V was created for elementary school-aged students (Tr. pp. 1297-99).  When asked if the test results could be different because the tests themselves were, in fact, different, the psychiatrist broadly acknowledged that "there's always going to be a standard error between tests and discrepancies" (Tr. pp. 1298-99).  She maintained, however, that the difference in scores, which amounted to "two standard deviations[,] . . . would be beyond what would be expected on just different tests" (Tr. p. 1300).

Notwithstanding the private psychiatrist's testimony in this regard, the hearing record is not otherwise developed regarding the appropriateness of comparing the different tests, and I do not find that the different cognitive testing scores overcomes the other evidence of the student's progress, including goal progress reports, report cards, iReady diagnostic scores, and teacher reports.

3. Special Factors – Interfering Behaviors

Turning to whether the December 2022 CSE was required to develop a BIP for the student, 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).  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, a district is required to conduct an 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]).

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 the IEP deficient, as the IEP must be closely examined to determine whether it otherwise addressed the student's interfering behaviors (see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 80 [2d Cir. 2014]; F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 6-7 [2d Cir. Jan. 8, 2014]; 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).

As noted above, the district conducted a March 14, 2022 FBA at the request of the parent due to concerns with behaviors within the home and classroom setting (see Dist. Ex. 17; see also Tr. pp. 75-77).  The FBA included two direct observations by the school psychologist, teacher and parent reports, and the completion of the Functional Screening Tool (FAST) and Motivation Assessment Scale (MAS) by the student's special education teacher (Dist. Ex. 17 at pp. 1-2).  Results of these tools identified escape and avoidance of non-preferred activities as the primary function of the student's behavior (id.; see Tr. pp. 77-79).  The FBA included the school psychologist's observations of the student's transition from OT to the classroom, eating snack while participating in a Scholastic News smart board activity led by his special education teacher, transition from the classroom to the library, selection of a book at the library, as well as, a conversational exchange with a peer during library, check out of a library book, and transition back to his class (Dist. Ex. 17 at pp. 2-3).  Based on her classroom observation, the school psychologist reported the student transitioned from one activity to the next, made eye contact with the teacher, and appeared to be listening and engaged when teachers were talking (id.).  The school psychologist also reported the student followed directions to open his Scholastic News with a prompt from his one-on-one aide, and he raised his hand and participated throughout the lesson and activity (id.).  Based on her library observation, the school psychologist reported the student demonstrated appropriate behavior, appeared engaged and on task, and described that the student checked out his book and engaged in a conversation with his classmate about their books (id. at p. 3).  The FBA provide information on the student's diagnoses, noted that prescribed medications could impact the student's behavior and functioning at school, and further noted that the parent communicated with the teachers regarding medication changes, which enabled the teachers to report any positive or negative side effects present with these changes (id. at p. 4).  The FBA reflected that, per parent report, the student had difficulty self-regulating at home, did not participate in academic tasks/homework, and demonstrated anger and frustration at home and "refuse[d] to participate in activities" and "w[ould] become physically aggressive, at times" (id.).  The special education teacher reported the student could demonstrate defiant/task avoidant behaviors of refusal mostly when presented with a non-preferred task, or perceived difficult tasks, and that when the student presented with these behaviors "prompting [wa]s provided however when this [wa]s not effective, [the student] [wa]s provided with a break before the task [wa]s presented again" (id. at pp. 4-5).  The FBA stated that the student's behavior at school had significantly improved since beginning data collection for the FBA, and that the student had not demonstrate negative behaviors of defiance or task avoidance (id. at p. 5).  According to the FBA, the parent reported the positive changes were also seen at home, and she credited "a recent change in medication to have prompted the positive changes" in the student (id.).

Although the CSEs that developed the student's IEPs for the 2022-23 school years indicated that the student needed strategies, including positive behavioral interventions, to address his behavior that impeded his learning or that of others, they also indicated that the student did not need a BIP (Dist. Exs. 3 at p. 12; 5 at p. 9; 7 at p. 15).  Both the April and June 2022 IEPs included information in the area of social development that the student made gains in social skills, in regulation of his mood when distressed, and accessed his learned coping strategies (Dist. Exs. 5 at p. 7; 7 at p. 7).  The IEPs included information from the March 2022 Conners-3, short form completed by the special education teacher, that the student's peer relationships were considered typical for a child his age within the classroom setting (Dist. Exs. 3 at p. 9; 5 at p. 8; 7 at p. 8).  The IEPs reported per the BASC-3 as indicated by answers from the student's parent and classroom teachers that his social skills were considered at risk for a child his age (Dist. Exs. 3 at p. 9; 5 at p. 8; 7 at p. 8).  The 2022-23 IEPs included that the student had diagnosis of ASD and generalized anxiety disorder; but noted "outward signs of [a]nxiety [we]re not seen in the classroom setting" (Dist. Exs. 3 at p. 9; 5 at p. 8; 7 at p. 8).  The December 2022 CSE provided updated information in the area of social development in relation to group counseling sessions that addressed play skills, conversation skills, responding to social cues and individual sessions focused on the development and implementation of coping skills (Dist. Ex. 3 at p. 9).  The December 2022 IEP further reflected, as reviewed above, information from the June 15, 2022 neuropsychological evaluation in relation to parent and teacher response forms related to the student's behaviors, and social responses (id. at pp. 9-10).  The December 2022 IEP reported the student would at times refuse to complete simple tasks by stating "I don't know how" or "I can't do it"; however, if the student became upset in the classroom, he had a copy of coping skills at his desk that he reviewed and practiced during individual counseling sessions (id. at p. 10; see Dist. Ex. 40).

As reported in the December 2022 prior written notice, the December 2022 CSE discussed that the FBA conducted the previous year did not yield any significant behaviors that resulted in the need to develop a BIP (Dist. Ex. 4 at p. 4).  According to the December 2022 prior written notice, the parent indicated the lack of significant behaviors was due to the student being on medication, and the student's psychiatrist reported that she continued to prescribe medication to the student (id.).[13]  The December 2022 chairperson/director of pupil services stated that the CSE would recommend a psychiatric evaluation and not another FBA, as the committee had concerns regarding the moods discussed (id.).[14]  Further, the prior written notice noted a discrepancy between the student's behavior in the school setting versus the home setting and, as a means to assist the parent, the CSE recommended the addition of behavior intervention services in the home to provide strategies in the moment to the student and the parent (id.).  The parent agreed to these services and to parent training, which the parent said worked well (id.).

The school psychologist testified that, following the FBA, the student did not need a BIP as the classroom managed the student appropriately per data collected and teacher report (Tr. pp. 80-81).  The school psychologist testified to discussions with the teacher and parent, with the teacher reporting a decrease in the student's behaviors following the FBA, and the parent believed that changes were made to the student's medications that altered the student's behavior in school (Tr. pp. 80-82).  Further, the school psychologist reported that the student did show task avoidance of non-preferred activities but that, if he was provided with a short break, he was usually able to get back to the activity (Tr. p. 81).  The school psychologist further testified that a BIP was not developed following the FBA as "[b]ased on the information that we had, we felt that the classroom . . . was supportive enough to deal with any behavior through the positive behavioral support system that they utilize[d] there" (Tr. p. 196).[15]  The school psychologist testified that she conducted the April 2022 psychological evaluation and that, according to parent reporting on the BASC-3 testing, the student demonstrated clinically significant behaviors at home, but that at school did not demonstrate the same behaviors (Tr. pp. 97, 103-106).  At the time of the CSE meeting in April 2022, the school psychologist testified that she was not aware of any behaviors impacting the student's ability to learn in school or in the student's related services or counseling sessions (Tr. pp. 117-18).  The school psychologist testified that the parent described at the April 2022 CSE meeting that the student presented with much more difficult behaviors at home including physical aggression and physically resisting doing things as compared to school and, that as a result the CSE recommended the home-based behavior intervention services and parent counseling and training the home (Tr. pp. 150-52).

The IHO on several occasions in the decision acknowledged that that the school was not seeing the same behaviors in school that the parent observed in the home, noting evidence that the student tended to bottle in his frustrations about his academic skills during the school day and then explode at home, that targeted behaviors did not occur during the FBA, and that any interfering behaviors were being addressed in the classroom through redirection and use of coping skills (IHO Decision at pp. 6, 8-11, 13-16).  Yet, ultimately, the IHO found that "apparently the problematic behavioral pattern was present at least somewhat in school" (id. at p. 16).  In particular, the IHO cited an email between the parent and the student's teacher in the public school (id.).  The email from the parent to the student's fourth grade special education teacher, dated November 23, 2022, summarized an earlier phone conversation wherein the teacher shared that the student exhibited "frustrations (foot stomping, refusal to complete assignments and uncooperative behaviors) . . . while completing his work in school; resulting in him missing out on preferred activities" (Parent Ex. EE at pp. 1-2).  The teacher responded, confirming that the school had "not seen any consistency about when these behaviors occur" but noted that, when they did, the school "provide[d] him with a choice of completing the work at a different time" and that, he would usually choose to do so "during small group work," and, therefore "he ha[d]n't really missed out on any preferred activities" (id. at p. 1).  This description of the student's behavior and the school's response is consistent with the information included in the FBA regarding the student's defiant/task avoidant behaviors and the provision of prompting or a break before presenting the task again (Dist. Ex. 17 at pp. 4-5).  Overall, the email supports rather than undermines the CSE's conclusion that the student's interfering behaviors were sufficiently addressed with behavior interventions, supports, and other strategies, such that the student did not require a BIP (Dist. Ex. 3 at p. 12; see 8 NYCRR 200.22[b][1]).

In addition, in finding that the district "could have" developed FBAs and BIPs "to address areas where the student had difficulty," the IHO noted the FBA, reward system, and BIP developed for the student at West Hills (IHO Decision at p. 16).  However, this evidence was not before the CSEs and, therefore, could not be relied upon to retrospectively assess the CSEs' recommendations for the student (see C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, at *13 [S.D.N.Y. Dec. 23, 2013] [finding that "a substantively appropriate IEP may not be rendered inadequate through testimony and exhibits that were not before the CSE about subsequent events . . . that seek to alter the information available to the CSE"], citing R.E., 694 F.3d at 186-88).  Moreover, as the district argues, comparisons of a unilateral placement to the public placement are not a relevant inquiry when determining whether the district offered the student a FAPE; rather, it must be determined whether or not the district established that it complied with the procedural requirements set forth in the IDEA and State regulations with regard to the specific issues raised in the due process complaint notice, and whether the IEP developed by its CSE through the IDEA's procedures was substantively appropriate because it was reasonably calculated to enable the student to receive educational benefits—irrespective of whether the parent's preferred program was also appropriate (Rowley, 458 U.S. at 189, 206-07; R.E, 694 F.3d at 189-90; M.H., 685 F.3d at 245; Cerra, 427 F.3d at 192; Walczak, 142 F.3d at 132; see R.B. v. New York City Dep't. of Educ., 2013 WL 5438605 at *15 [S.D.N.Y. Sept. 27, 2013] [explaining that the appropriateness of a district's program is determined by its compliance with the IDEA's requirements, not by its similarity (or lack thereof) to the unilateral placement], aff'd, 589 Fed. App'x 572 [2d Cir. Oct. 29, 2014]; M.H. v. New York City Dep't. of Educ., 2011 WL 609880, at *11 [S.D.N.Y. Feb. 16, 2011] [finding that "'the appropriateness of a public-school placement shall not be determined by comparison with a private school placement preferred by the parent'"], quoting M.B. v. Arlington Cent. Sch. Dist., 2002 WL 389151, at *9 [S.D.N.Y. Mar. 12, 2002]; see also Angevine v. Smith, 959 F.2d 292, 296 [D.C. Cir. 1992] [noting the irrelevancy comparisons that were made of a public school and unilateral placement]; B.M. v. Encinitas Union Sch. Dist., 2013 WL 593417, at *8 [S.D. Cal. Feb. 14, 2013] [noting that "'[e]ven if the services requested by parents would better serve the student's needs than the services offered in an IEP, this does not mean that the services offered are inappropriate, as long as the IEP is reasonably calculated to provide the student with educational benefits'"], quoting D.H. v. Poway Unified Sch. Dist., 2011 WL 883003, at *5 [S.D. Cal. Mar. 14, 2011]; but see B.Z. v. Hewlett Woodmere Union Free Sch. Dist., 2025 WL 339140, at *11 [E.D.N.Y. Jan. 27, 2025] [finding the comparison was invited by evidence that the district crafted its recommendations to "replicate" the unilateral placement]).

In light of the results of the FBA and the discussions that took place at the student's CSE meetings, the district did not deny the student a FAPE by failing to develop a BIP for the student.  Further, the IEP included supports and accommodations to address the student's social/emotional and behavioral needs in the school environment.  For the 2022-23 school year, the CSE recommended that the student receive one 30-minute session per week of counseling in a small group, and one 30-minute session bi-weekly of individual counseling services (Dist. Exs. 3 at p. 1; 5 at p. 1; 7 at p. 1).[16]  Social/emotional and behavioral goals targeted the student's ability to maintain a social exchange related to a conversational topic, respond appropriately to social cues of peers during social group sessions, and, when presented with a hypothetical situation that evoked negative feelings, respond with a positive solution (Dist. Exs. 3 at p. 13; 5 at p. 11; 7 at p. 11).  The December 2022 IEP noted that the student's group counseling sessions focused on play skills, conversational skills, and responding to social skills, and individual sessions targeted development and implementation of coping skills (Dist. Ex. 3 at p. 9).  As noted above, the IEP indicated that the student had a list of coping skills at his desk, that was reviewed and practiced during individual counseling sessions, and the IEP included a new management need of reminders and prompts to use practiced coping skills (id. at pp. 10, 11).

Based on the foregoing, the evidence in the hearing record supports a finding that the  district had information before it for the 2022-23 school year that indicated the student did not need BIP in order to receive a FAPE and that the district provided the student with behavioral supports to address his needs in school and added support for the parent in the home.

4. Educational Programming

I next turn to a review of the programming recommended in the December 2022 IEP.  As noted above, the December 2022 CSE recommended the student's continued placement in a 12:1+1 special class with a 1:1 aide, related services, parent counseling and training, and behavior intervention services in the home setting (Dist. Ex. 3 at pp. 1, 13-14).  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]).

The June 2022 private neuropsychological evaluation recommended that the student "continue in a self-contained classroom with an IEP that also provide[d] specialized instruction for his reading disorder and that allowed him to continue current services and the accommodations listed" (Dist. Ex. 22 at p. 7).  Accommodations recommended included optimal seat placement, specific feedback and guidelines about performance, silent cues and prompts to keep the student on tract, time and a half on tests, repetition while teaching, allowance for movement in the classroom such as standing and walking around at stations to facilitate on task behaviors, breaks provided as needed on tests and in the classroom, use of a token economy to establish goals and reward desired behavior, and noise canceling headphones, timers, one-on-one support, and checklists (id. at pp. 8-9).  The December 2022 CSE recommended some accommodations in line with those made by the neuropsychologist including breaks offered throughout the day as a proactive strategy in dealing with frustration, allowance to stand during desk work, access to fidgets, preferential seating with less distractions, directions explained and checks for understanding, as well as wait time before expected to provide an answer (Dist. Ex. 3 at p. 15).  In addition, the CSE recommended that the student have a 1:1 aide throughout the school day due to his medical diagnosis of epilepsy (Dist. Exs. 3 at p. 14; 4 at p. 1).

When originally engaged in planning for the 2022-23 school year, the April 2022 CSE recommended that the student continue in a 12:1+1 special class with the support of a 1:1 aide for his seizure disorder with adjustments to his related service mandates (see Dist. Ex. 8 at p. 1).  The district school psychologist testified that the April 2022 CSE made its recommendations based on the evaluative information and "the progress [the district] had seen with him in the classroom and within related services" (Tr. pp. 119-20).  According to the December 2022 prior written notice, the CSE recommended continuing the student's placement in the 12:1+1 special class given the "evaluations reviewed, input from teachers, related services providers, and those in attendance at the CSE meeting," which included the neuropsychological evaluation which indicated that the student should remain in this current setting (Dist. Ex. 4 at p. 1).[17]

The December 2022 CSE considered programs and/or services for the student that were "more restrictive," with less time within the general education setting, but rejected those due to the student's functional level and skills (Dist. Ex. 4 at p. 5).  The prior written notice noted that the student was "doing nicely in the general education art class" (id. at p. 1).  The prior written notice stated that the parent asked for consideration of a nonpublic school but that the district members of the committee felt that a move out of district would be too restrictive and that the student was making progress in the 12:1+1 special class setting within the district (id. at p. 4).  The CSE also considered programs and/or services that were "less restrictive," with more time within the general education setting, but also rejected those due to the student's functional level and skills and because the student continued to require supports of a special class setting with related services (id.).

The school psychologist testified that, at the December 2022 CSE meeting, the district staff found that the 12:1+1 special class was an appropriate program (Tr. pp. 152-53).  With respect to the 2022-23 school year, the elementary school principal testified that the district's third-grade, 12:1+1 special class provided students with opportunities for small group, and individual instruction daily, and that the students were broken into small groups based on diagnostics, teacher observation, classroom tests, informed instruction, and participation in lessons (Tr. pp. 270-72).  The student's 2022-23 special education teacher recalled there were seven students in the class at the time, and she provided whole class instruction, as well as instruction in small groups of two to three students, and 1:1 instruction based on the student's needs (Tr. pp. 429-31).  Additionally, the special education teacher testified that the student had a 1:1 aide for seizures, and the 1:1 aide also supported the student if he needed a break or for redirection (Tr. pp. 446-47).

With respect to recommended programming, the IHO noted some evidence relevant to the dispute, including the recommendations of the private experts/evaluators and the CSE's rationale for the 12:1+1 special class set forth in the prior written notice, and concluded that "the district's program had positives and the student likely benefited from participation in the program" but that certain aspects of the district's recommended programming were "concerning" (IHO Decision at pp. 7, 9, 11-14, 15, 17-18).  The IHO then cited a purported reduction in the recommendation for parent counseling and training, the lack of a testing accommodation for time and a half, and the lack of a recommendation for ABA (id.at pp. 14, 15).  The IHO acknowledged that the district was not required to recommend the best program but, rather, was required to offer an appropriate program, but found that, given the student's struggles, the parent was justified in seeking a program "where the student could thrive rather than struggle" (id. at p. 18).

The IHO's concern about the lack of ABA is addressed further below.  As for parent counseling and training, the parent testified that, for the 2021-22 school year, the CSE had recommended 20 hours of parent counseling and training but she "ran out of hours in January" so she was provided another 20 hours for the remainder of the school year (Tr. p. 1368).[18]  She indicated she asked the CSE to recommend 40 hours per year of parent counseling and training for the 2022-23 school year (id.).  While the CSEs for the 2022-23 school year maintained a recommendation for 20 hours per year of individual parent counseling and training in the home setting, the December 2022 CSE added one 60-minute session per week of individual behavior intervention services in the home (Dist. Exs. 3 at p. 14; 5 at p. 12; 7 at p. 12).  The combination of the services would have exceeded 40 hours of home-based support to assist the parent in managing the student's behaviors.  Accordingly, I do not find that the frequency of parent counseling and training would contribute to a finding that the December 2022 IEP was inappropriate.

The lack of a testing accommodation providing for the student to receive time and a half to take tests, relied upon by the IHO as a basis for finding the IEP inappropriate, was not a concern raised by the parent in the due process complaint notice as having contributed to a denial of a FAPE for the 2022-23 school year (IHO Decision at p. 14; see Parent Ex. A at pp. 5-7).  The June 2022 neuropsychological evaluation recommended the testing accommodation to address the student's "attentional difficulties" (Dist. Ex. 22 at p. 8); however, the December 2022 IEP recommended several supports and accommodations to address the student's attention needs, including minimal distractions refocusing and redirection, preferential seating, allowance of breaks, and testing accommodations providing for tests to be read and directions explained to the student (Dist. Ex. 3 at pp. 11, 15-16).  Further, there was no indication in the hearing record that the student specifically struggled to complete testing in the time allotted.  Accordingly, the IHO erred in finding that the lack of the particular testing accommodation supported a finding of a denial of a FAPE in this instance.

As set forth above, contrary to the IHO's determination that the student made insufficient progress during the 2021-22 school year and the beginning of the 2022-23 school year, the evidence in the hearing record reflects that the student was making meaningful progress commensurate with his needs.  Given the student's progress in the 12:1+1 special class with other supports and services, the evidence in the hearing record supports the CSE's determination to continue similar programming for the student for the remainder for the 2022-23 school year.  Moreover, the hearing record demonstrates that the district was responsive to the student's needs and the parent's concerns as reflected in the district's willingness to pursue more evaluations and adjust and add the student's programming recommendations as warranted.  With respect to LRE considerations, the evidence in the hearing record reflects that the CSEs considered the parent's concerns, as well as the reports and recommendations made in the private neuropsychological evaluation and as discussed during the CSE meeting.  However, having determined that the 12:1+1 special class placement, together with related services, 1:1 aide services, home-based behavior intervention services, and other supplementary aids and services and program modifications, would meet the student's needs in the LRE, the district was not obligated to consider a nonpublic school placement as the parent suggested (see, e.g., B.K. v. New York City Dep't of Educ., 12 F. Supp. 3d 343, 359 [E.D.N.Y. 2014] [indicating that "once the CSE determined that a 6:1:1 placement was appropriate for [the student], it was under no obligation to consider more restrictive programs"]; E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *15 [explaining that "under the law, once [the district] determined . . . the [LRE] in which [the student] could be educated, it was not obligated to consider a more restrictive environment"; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *8 [S.D.N.Y. Mar. 19, 2013] [finding that "[o]nce the CSE determined that [the public school setting] would be appropriate for the [s]tudent, it had identified the [LRE] that could meet the [s]tudent's needs and did not need to inquire into more restrictive options "]; T.G. v. New York City Dep't of Educ., 973 F. Supp. 2d 320, 341-42 [S.D.N.Y. 2010]).

5. Specialized Reading Instruction

In addition to challenging the student-to-adult ratio of the special class recommended by the CSE, the parent also claims that the December 2022 failed to recommend specialized reading instruction.  State regulation defines "specially designed reading instruction" as "specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, in the area of reading . . . which is provided to a student with a disability who has significant reading difficulties that cannot be met through general reading programs" (8 NYCRR 200.6[b][6]).  Education Law § 4401(2), in turn, sets for the definitions of "[s]pecial services or programs," which includes, among other things, special classes, resource rooms, consultant teacher services, and related services.  Consistent with the reference to the various special services or programs included in the definition of special education under State Law, State guidance notes that specialized reading instruction could be recommended in the IEP of the student as a special class, direct consultant teacher service, related service, resource room program ("Questions and Answers on Individualized Education Program (IEP) Development, The State's Model IEP Form and Related Requirements," at p. 31, Office of Special Educ. Mem. [Updated Sept. 2025], available at https://www.nysed.gov/sites/default/files/ programs/special-education/questions-answers-iep-development.pdf).

The June 2022 neuropsychological evaluation indicated that a program that provided multisensory reading instruction, such as Orton Gillingham or Wilson, was "ideal" for the student (Dist. Ex. 22 at pp. 7-8).

The December 2022 IEP indicated the student had recently begun using a new, specialized reading program, System 44 (Dist. Exs. 3 at pp. 7, 9; 4 at p. 3).  The special education for the student's 2022-23 school year testified that the student received specialized reading instruction in the 12:1+1 special class special class based on his needs (Tr. pp. 440-41).  She testified that the student received specialized reading instruction five days a week with instruction varying from whole class, to small group and "one-on-one . . . if he needed help" (Tr. pp. 441-42).  The special education teacher indicated the district used three reading programs in the student's third grade class (Tr. p. 442).  The first was the Journey's Program, which was the district curriculum; the second was System 44, an intervention program that "buil[t] on the students' phonics and reading skills"; and the third was i-Ready, which was used by the teacher during small group independent work (Tr. pp. 443-44, 472-73).[19]  The special education teacher explained that the i-Ready program catered to each individual student, similar to Systems 44, and created an individualized pathway for each student in reading (Tr. p. 444).[20]  The special education teacher reported that the student also received specialized instruction "on the Chromebook . . . for Systems 44 and iReady reading" (Tr. pp. 442, 498-500). The special education teacher testified that the special class "focused heavily on reading" and provided around two hours of reading instruction a day during two reading blocks and also addressed reading during writing period and sometimes during math, science, and social studies (Tr. pp. 445-46, 494-97, 499-503).

The parent testified that the System 44 program was not appropriate because it was meant to address "reading comprehension" whereas the student did not "know how to read yet" (Tr. p. 1375; see Tr. pp. 1365-66).  The parent also testified that the student's IEP did not include "reading goals associated for a child who could not read" (Tr. p. 1375).

However, the special education teacher testified the student could read the sight words during activities and recalled they started at the kindergarten reading level for the school year (Tr. p. 440).  She indicated that the student read words and short sentences of around seven to ten words and enjoyed reading his own handwriting (Tr. pp. 510-11).  The special education teacher testified that the student read books that presented sight words that were repetitive such as "This is a cat. This is a bat"(Tr. p. 513).  She reported all of the books that she read with the student were on the kindergarten level, as she wanted to continue to motivate him and encourage him to read (id.).  However, she noted that she challenged the student with more difficult passages during small group (Tr. pp. 512-13).  The special education teacher testified that the student demonstrated progress and growth in his reading as evidenced by his motivation and effort (Tr. p. 523).  In relation to reading skills, the special education teacher testified that the student demonstrated improvement in reading high-frequency words, and all skills (Tr. pp. 523-24).

In looking at the IEPs in place for the 2022-23 school year, the CSE identified the student's needs in phonemic awareness and phonics/decoding, identifying difficulties and goals related to blending sounds and employing systematic word attack skills—such as breaking words into syllables and using phonics strategies—including the need for the student to consistently utilize such decoding strategies (Dist. Exs. 3 at pp. 7, 9, 12; 5 at pp. 6, 10; 7 at pp. 6, 10).  The IEPs also acknowledged fluency deficits, describing the student's reading as "slow word-by-word reading" (Dist. Exs. 3 at pp. 9, 13; 5 at pp. 6, 10; 7 at pp. 6, 10).  The reading goals included in the December 2022 IEP provided that "[w]hen given 10 words, [the student] will blend beginning, middle, and final sounds of the word" (Dist. Ex. 3 at p. 12).  The second reading goal stated, "[the student] will read 75% of words within a given passage" (id.).  The IEP also included an annual goal targeting the student's ability to accurately read and spell sight words (id. at p. 13).

While the parent felt that System 44 inappropriately focused on comprehension skills, there is no direct evidence to that effect in the hearing record.  Instead, review of the IEP itself reflects that it was designed to address more foundational reading skills such as decoding, fluency, and word recognition (Dist. Ex. 3 at pp. 7, 12-13).  Accordingly, given the annual goals and the recommendation for the student to attend a 12:1+1 special class, the evidence in the hearing record reflects that the December 2022 IEP appropriately recommended supports to address the student's reading needs.

6. Methodology

Turning to the issue of ABA, which the IHO found was required to offer the student a FAPE, generally, an IEP is not required to specify the methodologies used with a student and the precise teaching methodologies to be used by a student's teacher are usually a matter to be left to the teacher's discretion—absent evidence that a specific methodology is necessary (Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 [2d Cir. Oct. 29, 2014]; A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 [2d Cir. July 29, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 192-94; M.H., 685 F.3d at 257).  As long as any methodologies referenced in a student's IEP are "appropriate to the [student's] needs," the omission of a particular methodology is not necessarily a procedural violation (R.B., 589 Fed. App'x at 576 [upholding an IEP when there was no evidence that the student "could not make progress with another methodology"], citing 34 CFR 300.39[a][3] and R.E., 694 F.3d at 192-94).  Indeed, a CSE should take care to avoid restricting school district teachers and providers to using only the specific methodologies listed in a student's IEP unless the CSE believes such a restriction is necessary in order to provide the student a FAPE.  However, when the use of a specific methodology is required for a student to receive an educational benefit, the student's IEP should so indicate (see, e.g., R.E., 694 F.3d at 194 [finding an IEP substantively inadequate where there was "clear consensus" that a student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee" of the use of this methodology]).  If the evaluative materials before the CSE recommend a particular methodology, there are no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member (i.e. school psychologist) to rely on a broader approach by leaving the methodological question to the discretion of the teacher implementing the IEP (A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017]).  The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate the "clear consensus" (R.E., 694 F.3d at 194).

The June 2022 neuropsychological evaluation report indicated that the student had received "ABA therapy [five] days a week" during kindergarten and had also attended "an ABA summer camp" (Dist. Ex. 22 at p. 1).  The evaluation indicated, per parent report, that the student's behaviors subsequently improved (id.).  The parent testified that, at a January meeting prior to school closures related to the COVID-19 pandemic, she requested the student receive ABA services, and that the district responded that student did not exhibit "autism behaviors" in the school setting and, therefore, the district would not recommend ABA (Tr. p. 1349).  The parent indicated that, upon following advice from the district school psychologist, she received home-based ABA services for the student through insurance (id.).  The parent testified, during the 2022-23 school year, the student received services ABA services through health insurance three hours per day, five days a week from around 4:00 to 7:00, as well as four hours per week of services from a BCBA consisting of parent training and observation of the ABA provider (Tr. pp. 1347-48).

The June 2022 neuropsychological evaluation report recommended that social/emotional learning be incorporated in the student's classroom environment such as through use of positive behavioral interventions and supports (Dist. Ex. 22 at p. 8).  The evaluation further recommended that "ABA 8 techniques . . . be incorporated into the teaching environment" to reduce behavioral issues and increase social functioning (id.).  The neuropsychological evaluator also recommended accommodations such as a token economy and use of timers (id. at pp. 8-9).  With respect to clinical services, the evaluation recommended six to ten hours per week of ABA services be provided in the student's home "to combat behavior issues and create a smoother transition from home to school" (id. at p. 9).

In a September 2022 letter to the district, the student's private psychiatrist opined that the student required a specialized educational setting that provide individualized instruction and "structured behavioral support such as provided at [West Hills] or a similar type of program" (Dist. Ex. 23).  In addition, during testimony the private psychiatrist recalled that at the December 2022 CSE meeting she advocated for more supports for the student and recommended he be provided with the services of a "behavioralist who c[ould] really work on a specific reward chart, specific kind of FBA, or Functional Behavioral Analyst, and specific kind of targeted interventions" (Tr. p. 1275).

The December 2022 prior written notice documented that the parent and the parent's educational consultant/advocate requested that the CSE recommend that the student be placed at West Hills, which was not a State-approved nonpublic school (Dist. Ex. 4 at p. 1).[21]  Other than discussing the parent's request for placement of the student at West Hills, which was an ABA program, it does not appear that the CSE had a specific discussion regarding whether the student needed instruction using ABA methodology.[22]

Thus, the parent, the student's private psychiatrist, and the parent's educational specialist/advocate expressed a preference that the student be placed at West Hills, a nonpublic school that used ABA methodology, but the documentation does not reflect that they emphasized that West Hills was preferred in particular due to the methodology employed (see Dist. Exs. 4; 23).  The only document before the December 2022 CSE that included a recommendation for ABA independent from the request for the particular school was the June 2022 neuropsychological evaluation and that recommendation was more generally for use positive behavioral intervention services or ABA techniques in the classroom and for provision of ABA services in the home (see Dist. Ex. 22 at pp. 8-9).  The evaluation did not go so far as to express that ABA was required for the student to receive educational benefit or that the student had failed to make progress due to a lack of ABA in the school setting (see generally id.).  While the December 2022 IEP did not explicitly provide for use of ABA methodology, as noted above, it included supports and strategies to address the student's social/emotional and behavioral needs such as use of positive reinforcement and the provision of behavior intervention services in the home (Dist. Ex. 3 at p. 11, 14).[23]  Moreover, as discussed in detail above, the hearing record included district evaluative information and reports that the student progressed during the 2021-22 school year and at the beginning of the 2022-23 school year with the supports provided in his 12:1+1 special class without the specific provision of ABA methodology in the classroom to the exclusion of other methodologies.

Based upon the foregoing, the evidence in the hearing record does not support a finding that there was a clear consensus before the December 2022 CSE that the student required ABA methodology in order to receive educational benefit and, therefore, the district did not deny the student a FAPE by failing to include ABA on the student's IEP.

C. 2023-24 School Year

As noted above, the IHO did not separately evaluate the district's offer of a FAPE for the 2023-24 school year and, instead, appears to have relied on his analysis of the district's offer of a FAPE for the 2022-23 school year to support his determination for the 2023-24 school year (see generally IHO Decision).  The parties post-hearing briefs to the IHO also tended to present their arguments to the IHO in a condensed manner, with both school years conflated (IHO Exs. I-II).  On appeal, the parties arguments do not fare much better in terms of identifying how or why the June 2023 IEP for the student was appropriate, or inappropriate, based on its own merit.  However, similar to the 2022-23 school year, the parties' main disputes appear related to the degree to which the student's IEP addressed the student's behavioral needs and the appropriateness of the special class recommendation without explicit provision for instruction using ABA.

1. Evaluative Information

Turning to the 2023-24 school year and whether the district offered the student a FAPE for this school year, a review of the additional information before the June 2023 CSE is necessary.

The hearing record shows that the June 2023 CSE considered the following evaluations/reports in developing the student's IEP for the 2023-24 school year: a February 24, 2023 West Hills 45-day new student social/emotional review, a March 8, 2023 West Hills 45-day speech-language review, a May 9, 2023 OT progress summary, and a May 19, 2023 PT progress summary (Dist. Ex. 1 at p. 2; see Dist. Ex. 2 at p. 6).  Additionally, the June 2023 CSE considered a May 26, 2023 West Hills FBA and BIP, a May 31, 2023 West Hills academic annual review, a June 2, 2023 West Hills OT annual progress report, and a June 5, 2023 West Hills PT annual progress report (Dist. Ex. 1 at p. 2).[24]  The prior written notice indicated that, in addition to evaluations/reports, the CSE considered parent, therapist, and CSE member input (Dist. Ex. 2 at p. 6).

A review of the new information available for consideration by the June 2023 CSE shows that the student's needs remained largely the same for the 2023-24 school year.  The February 2023 West Hills 45-day social emotional review indicated that the student "had a smooth transition into West Hills"(Parent Ex. N at p. 1).  It described the student as friendly and social but noted he had difficulty understanding social cues and overcoming social conflict (id.).  According to the West Hills report, although the student could articulate appropriate coping skills to use in stressful situations, he was unable to employ them "in the moment"(id.).  The social-emotional review noted that in moments of distress the student would repeat himself and stomp his feet, but that his anger did not escalate from there and the student was not physically aggressive (id.).  The March 2023 West Hills 45-day speech-language review indicated the student was able to respond to questions in conversation when he was provided with moderate to maximal verbal cues (Parent Ex. O at p. 1).  The speech-language review noted the student had difficulty maintaining a reciprocal conversation, including asking information-seeking questions and making relevant comments on the speaker's topic of choice (id.).  In addition, the student's "[r]esponse time to questions was often prolonged" (id.).  According to the speech-language review, the student was usually easy-going during peer interactions and exhibited a willingness to form friendships but his desire to form friendships and have appropriate peer interactions was hindered by his pragmatic deficits and frustrations (id.).  The March 2023 45-day academic review described the student as sweet and thoughtful but also indicated that he struggled academically and presented with task-avoidant behavior (Parent Ex. P at p. 1).  The academic report stated that the student was capable of following directions and could follow a routine with ease; however, it also noted that in less structured settings the student struggled with transitioning and following directions (id.).  According to the academic review, the student was capable of problem solving and being flexible and could adapt to last-minute changes if they were clearly explained to him (id.).  With regard to reading, the academic report indicated the student's independent reading level was at an end of kindergarten level and he was becoming stronger at decoding CVC words using various reading strategies (id.).  The academic review stated the student was able to answer reading comprehension questions "from stories that [we]re read aloud to him" (id.).  With regard to writing, the review indicated the student was working on improving legibility and reported the student was capable of independently constructing three to four word sentences using provided sight words (id. at p. 2).  However, the student had difficulty transferring known words into his writing and relied heavily on phonetic spelling with considerable teacher support (id.).  The academic report indicated the student could recognize and correct instances where a sentence required capitalization and punctuation (id.).  Turning to math, the academic report indicated that it was the student's favorite subject and he was proficient at a third-grade level (id.).  The academic report noted the student was working on improving his procedural fluency with regard to adding and subtracting two-digit numbers with regrouping (id.).  In addition, the report indicated the student was working toward mastery of one-step word problems and continued to focus on key word within the problems (id.).

Next, the CSE had a West Hills FBA and BIP, both dated May 26, 2023, to consider (Parent Exs. Q; R).  The sources of data for the FBA were observation and teacher interview (Parent Ex. R at p. 1).  The FBA identified the student's interfering behaviors as tantrum episodes, which included inappropriate vocalizations, disruptive behaviors such as stomping feet or banging fists, and perseveration; physical aggression; and task avoidance (id. at p. 1-3).  The FBA indicated that the intensity of the student's tantrum episodes was mild to moderate and the apparent function of the episodes was escape/avoidance and to gain access to tangibles (id. at p. 1).  The FBA did not indicate how frequently the tantrum episodes occurred but indicated the average duration of the episodes was 23.1 minutes and they were most likely to occur when the student was transitioning from a fun activity, told to clean up or asked to wait, and in hot environments (id.).  Next, the FBA indicated there were five incidences of physical aggression that occurred in conjunction with tantrum episodes, all in the month of January (id. at p. 2).  The FBA stated that the intensity of physical aggression was severe, and the apparent function of the aggression was escape/avoidance and to gain access to tangibles (id.).  The behavior was most likely to occur in an aversive situation (id.).  Turning to task avoidance, the FBA recorded the frequency of occurrence as daily and the duration 1-53 minutes, with the mean duration being 15 minutes (id.).  The FBA indicated the behavior served the same apparent functions as the other behaviors (id. at p. 3).  According to the FBA, task avoidance was most likely to occur when the student was assigned work he perceived as too difficult or when he was excited about the next activity or earned rewards (id.).

The subsequent May 2023 West Hills academic annual review report stated the student actively engaged in class discussions and displayed a genuine interest in building relationships (Parent Ex. S).  The report also noted the student had difficulty regulating his emotions but noted he had shown increased awareness of his emotions and had begun implementing strategies to address them effectively (id. at p. 1).  According to the report, the student struggled to initiate tasks independently and benefitted from the use of a checklist or visual timer, small rewards and the use of a token board, multisensory learning techniques, and technology (id. at p. 2).  The description of the student's academic skills was largely the same as in the West Hills 45-day academic review (compare Parent Ex. S at pp. 2-3, with Parent Ex. P at pp. 1-2).  With regard to the student's social development, the annual review indicated that, while the student demonstrated immature behavior in the classroom, such as whining or crying when his desires were not met, there had been a noticeable decrease in these behaviors (id. at p. 3).  The report stated that the implementation of consistent positive reinforcement and collaborative problem-solving techniques had been instrumental in the student's development of coping skills (id.).

Next, the June 2023 West Hills OT annual review provided information regarding the student's progress toward his 2022-23 IEP goals, as well as a description of the student's sensory processing, gross motor planning, fine motor, visual motor/perceptual, self-help, and executive functioning skills (Parent Ex. T).  As related to the student's IEP goals, the OT annual review noted the student was able to write two sentences from a near point model with moderate accuracy in terms of orientation and line spacing but demonstrated difficulty with appropriate sizing of letters and words (id. at p. 1).  In addition, the student demonstrated the fine motor strength/endurance necessary to complete a fine motor activity for up to 10 minutes and could far-point copy two sentences from the board with moderate accuracy (id. at p. 2).  With regard to sensory processing, the OT report indicated the student tolerated tactile, visual, proprioceptive, and vestibular input; demonstrated sensory-seeking behavior in terms of tactile input; and demonstrated decreased proprioceptive/body awareness (id.).  In terms of gross motor skills and motor planning, the student presented with upper extremity range of motion that was within the average range and decreased bilateral strength and coordination during functional and therapeutic tasks (id.).  The student exhibited decreased postural stability and endurance and demonstrated difficulty maintaining weight bearing positions (id.).  According to the OT annual review, the student also demonstrated decreased fine motor strength bimanually, decreased visual attention to non-preferred tasks, and difficulty with visually scanning within complex backgrounds (id.).  The student struggled with visual motor/perceptual skills and required verbal cues to complete worksheets (id.).  The report indicated the student was independent with regard to dressing/undressing and toileting skills and that he could independently feed himself with utensils (id. at p. 3).  Lastly, with regard to executive function skills the OT report stated that the student was able to follow two- to three-step verbal directions with minimal prompts but had difficulty sequencing and motor planning novel activities (id.).  Additional information gleaned from the June 2023 West Hills PT annual review report indicated the student demonstrated low-to-normal muscle tone throughout his trunk and lower extremities, functional kyphosis; average range of motion; decreased muscle strength in his core and lower leg muscles; poor static standing balance when trying to balance on one leg; coordination difficulties; and decreased endurance when ambulating (Parent Ex. U).  The student demonstrated an increased risk of falls when descending stairs (id. at p. 4).

In the due process complaint notice, the parent contended that the district failed to fully and accurately report on the student's present levels of performance and specifically asserted that the present levels of performance contained minimal information from West Hills while retaining a significant amount of outdated information from when the student attended the district program (Parent Ex. A at p. 9).  A review of the June 2023 IEP shows that the CSE included information regarding the student's performance in the district program from September to December 2022 that was not included in the December 2022 IEP (compare Dist. Ex. 1 at pp. 6-10, with Dist. Ex. 3 at pp. 7-11).  For example, while the December 2022 IEP indicated that at the beginning of the school year the student would frequently say "'I can't'" when asked to complete independent work that involved reading, it noted the student had recently begun to put forth more effort and would either skip over unfamiliar words or try and guess (Dist. Ex. 3 at p. 7).  Although the June 2023 IEP included that same information, it also added that, when the student read spontaneously, he was able to do so fluently and gave examples of such (Dist. Ex. 1 at p. 7).  With regard to math, while the December 2022 IEP primarily reported the student's scores on standardized testing, diagnostic testing, and classroom unit tests, the June 2023 IEP included additional information regarding skills addressed and strategies used with the student when he was in the district program (compare Dist. Ex. 1 at p. 7, with Dist. Ex. 3 at p. 8).  Although the parent is correct that the much of the present levels of performance reflects the time the student was in district, the June 2023 IEP also includes information regarding the student's present levels of performance provided by West Hills (see Dist. Ex. 1 at pp. 6-10).

The foregoing demonstrates that the June 2023 had sufficient information before it to create appropriate present levels of performance and to recommend a program.  In addition, in line with the needs identified, the June 2023 IEP included annual goals in need areas of academics, social/emotional, and related services with criteria, method, and schedule (Dist. Ex. 1 at pp. 11-12, 14).[25]  Specifically, the district recommended approximately two goals in each of the following areas: reading, writing, mathematics, speech-language, social/emotional/behavioral, and motor skills (id. at pp. 11-12).

2. Special Factors—Interfering Behaviors

The district contends that the IHO erred in finding that the  IEP for the 2023-24 school year denied the student a FAPE based on its failure to recommend a new FBA and BIP, as the CSE recommended an FBA be completed upon the student's return to the district (see Dist. Ex. 1 at p. 11).  The district further contends that, upon completion of the FBA, the CSE would have determined if a BIP was necessary.

As discussed above, the in-school behaviors exhibited by the student while attending the district leading up to and including the beginning of the 2022-23 school year were managed with classroom-based interventions.  Given new information before the June 2023 CSE shared by staff from West Hills, including the FBA and BIP developed by West Hills (see Parent Exs. Q-R), the committee recommended that an FBA be completed in the fall "in the new classroom setting" upon the student's transition back to the school district (Dist. Exs. 1 at p. 11; 2 at p. 1).[26]

According to the June 2023 prior written notice, whereas the private school reported the student initially exhibited aggressive behaviors when he transitioned to West Hills, the district did not report prior aggressive behaviors or behaviors that warranted a BIP when the student attended the district program (Tr. pp. 157-58, 160-61; Dist. Exs. 1 at p. 11; 2 at pp. 3, 4-5).  In particular, the June 2023 prior written notice included information from a behaviorist at West Hills that reported the student's classroom used ABA methodology that included a reinforcement system with a token board (Dist. Ex. 2 at p. 2).  According to the prior written notice, the behaviorist shared that she had not started working with the student until March and did not have all of the prior data but described that the student exhibited tantrums and task avoidance, especially during the January transition to West Hills (id.).  Regarding aggressive behaviors, the staff at West Hills shared that the student exhibited aggressive behaviors during the student's initial transition that had decreased significantly and the West Hills behaviorist anticipated removing aggression from the student's BIP (id.).  The student's educational consultant/advocate reported observing the student at home and in the school setting and reported that the student demonstrated very aggressive and task avoidant behaviors (id.).  However, the parent reported that, at that time, the student did not demonstrate explosive behavior at home and did homework independently with some parent support (id.).  The district reported that, while attending the district school, the student was not aggressive in the school setting (id.).  According to the June 2023 prior written notice, the school psychologist reported that, in the district program, the student was "easily redirected, he utilized the sensory area, and none of his behaviors were intense enough or frequent enough to warrant a [BIP] or disruptive to the classroom" (id. at pp. 4-5).

As stated above, the district had a plan to conduct an FBA when the student returned to the district and upon completion of that assessment, the district would determine the need for a BIP.  Given that West Hills had conducted an FBA and developed a BIP for the student in May 2023, it would have made little sense for the district to conduct its own FBA in the same environment just one month later (see M.S. v. New Hyde Park-Garden City Park Union Free Sch. Dist., 2022 WL 903099, at *8 [E.D.N.Y. Feb. 3, 2022] [rejecting the parent's "claim that the CSE should have conducted their own FBA and BIP rather than rely on the [private school's] FBA and BIP, which were prepared only one month earlier"], adopted 2022 WL 903064 [E.D.N.Y. Mar. 28, 2022]).  Moreover, even if the CSE did not have the West Hills FBA and BIP before it, it has been found that, in some instances, it is appropriate for a district to delay conducting an FBA and, if necessary, developing a BIP until a student commences attending the recommended educational environment (see Cabouli v. Chappaqua Cent. Sch. Dist., 202 Fed. App'x 519, 522 [2d Cir. Oct. 27, 2006]; Bd. of Educ. of Wappingers Cent. Sch. Dist. v. M.N., 2017 WL 4641219, at *11 [S.D.N.Y. Oct. 13, 2017]).  Based on its knowledge of the student and the information before it, the district's determination to delay conducting its own FBA and to make a determination regarding the student's need for a BIP in the district recommended placement for the 2023-24 school year did not deny the student a FAPE.

Moreover, the June 2023 IEP included supports and annual goals that addressed the student's behavioral needs.  In addition to recommending an FBA upon the student's transition back to the district, the June 2023 also recommended related services such as counseling, as well as behavior intervention services one hour per week in the home setting and parent counseling and training for 20 hours per year to assist the parent in managing the student's behaviors in the home (Tr. pp. 161-62; Dist. Exs. 1 at pp. 1, 11; 2 at p. 1).  The IEP provided that the student would work on identifying social cues and on using positive self-talk and coping strategies to handle stressful situations or when feeling anxious or desires to withdraw in response to work demands (Dist. Ex. 1 at pp. 9, 12).  In addition, the IEP provided for the student to work on emotional regulation by "choos[ing] and utilize[ing] a self-regulation strategy (i.e., deep breathing, chair pushups, self-hugs, etc.) to decrease frustration in social situations (losing a game, being presented with a non-preferred task, etc.)" (id. at pp. 9, 10, 12).  Consistent with reports from West Hills that the student benefited from breaks when frustrated, the IEP included an accommodation that afforded the student breaks throughout the day as a proactive strategy for dealing with his frustration (id. at pp. 9, 13).

Accordingly, based on the foregoing, even if the district committed a procedural violation by not conducting its own FBA or developing a BIP for the student leading in to the 2023-24 school year, it would not rise to the level of a denial of a FAPE, as the June 2023 IEP otherwise addressed the student's behavioral needs (see C.F., 746 F.3d at 80; F.L., 553 Fed. App'x at 6-7; M.W., 725 F.3d at 139-41; R.E., 694 F.3d at 190).

3. Educational Programming, Specialized Reading Instruction, and Methodology

The crux of the dispute regarding the student's educational planning for the 2023-24 school year is whether information before the June 2023 CSE regarding the student's progress at West Hills required the CSE to recommend different programming for the student more similar to the West Hills program.

The June 2023 CSE recommended that for the 2023-24 school year (fourth grade) the student attend a 12:1+1 special class and receive the support of a 1:1 aide, and the same frequency of speech-language therapy, PT, counseling, parent counseling and training, and weekly behavior intervention services as detailed in the December 2022 IEP (Dist. Ex. 1 at p. 1).[27]  The June 2023 CSE also recommended the student receive extended school year services consisting of specialized instruction three hours per week in the school setting (id.).

According to the June 2023 prior written notice, the parent again asked for consideration of West Hills; however, the CSE stated it could not recommend the school as it was not a State-approved nonpublic school (Dist. Ex. 2 at p. 6).  The CSE again, as at the December 2022 CSE meeting discussed above, rejected more and less restrictive programs due to the student's then-current functioning levels and skills (id.).

According to the parent, at the June 2023 CSE meeting, the West Hills mental health counselor opined that the district recommendation that the student attend a 12:1+1 special class was not appropriate as the class was too big for the student (Tr. p. 1033).  The educational consultant for the student testified that, despite the private school recommendation for a smaller class setting, the district continued to recommend the same 12:1+1 special class setting (Tr. p. 1171).  The educational consultant opined that the student required a 6:1+1 setting, with a 1:1 aide, BCBA supervision, and instruction using the principles of ABA (Tr. p. 1184).[28]  Likewise, the West Hills speech-language pathologist opined that the 12:1+1 setting was too large for the student as he would be overwhelmed, would not like to compete for attention, and would not receive individualized attention like he received at the private school (Tr. pp. 1445-46).  The West Hills speech-language pathologist testified that the student "thrive[d] in a small setting" and that the previous year the student "only had two kids in the class and he did so well just having so much individualized attention" (Tr. p. 1445).

The school psychologist testified that based on the June 2023 CSE meeting and information provided, the CSE continued to recommend the student attend a district 12:1+1 special class and receive related services and the support of a 1:1 aide for his seizure disorder (Tr. p. 161).  Additionally, the school psychologist testified that the CSE, in consideration of information shared by West Hills and the parent, modified the student's OT services and recommend he receive three hours per week of specialized instruction for the extended school year (Tr. pp. 162-63).  The school psychologist testified the 12:1+1 special class continued to be an appropriate program for the student (Tr. p. 164).  She stated that, "[l]ooking back at the years that we [ha]ve had [the student] in 12:1:1 self contained, he made nice progress over those years, and we felt that that level of support . . . continued to be appropriate for him to continue that progress" (Tr. pp. 164-65).  For the 2023-24 school year, the school psychologist testified that there were three class sections of the 12:1+1 special class for the student's grade level, and that students were assigned based on their skill levels and may have similar deficits as well (Tr. pp. 165-66).  The school psychologist reported that the 12:1+1 special class followed the same curriculum as the general education class, with individualized strategies and materials for each child in the class, and could provide more small group or 1:1 instruction than the general education classes (Tr. pp. 166-67).  The school psychologist further testified that students in the 12:1+1 special class were mainstreamed for specials, lunch, and recess (Tr. p. 168).  In addition, the school psychologist reported that behavior management in the 12:1+1 special classes varied from teacher to teacher (Tr. p. 168).  She indicted that visual boards were used to show student progress and classrooms also employed Class Dojo and other interactive technology and use of a token economy (Tr. pp. 168-70).

Based on the information above and the student's performance during the 2022-23 school year initially in the district program and then in the program at West Hills, the hearing record does not reflect that the June 2023 CSE had information before it that would warrant a significant shift in recommendations compared to the December 2022 IEP.  The student's needs had not changed significantly such that the 12:1+1 special class would be rendered inappropriate.  Further, there was still no consensus in the evaluative information before the CSE that the student needed ABA methodology.  Thus, based on the evidence described in detail above, the district offered the student a FAPE for the 2023-24 school year.

VII. Conclusion

Having found that the IHO erred and that the district did offer the student a FAPE for both the 2022-23 and 2023-24 school years, the necessary inquiry is at an end and there is no need to reach the issue of whether West Hills was an appropriate unilateral placement for the student or whether equitable considerations support an award of tuition reimbursement (Burlington, 471 U.S. at 370; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision, dated January 21, 2025, is modified by reversing those portions which found that the district failed to offer the student a FAPE for the 2022-23 and 2023-24 school years and which ordered the district to fund the costs of the student's attendance at West Hills for a portion of the 2022-23 school year and for the 2023-24 school year.