Application of a Student with a Disability

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-003

Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education

Appearances:

The Harel Law Firm, PC, attorneys for petitioner, by Galiah Harel, Esq.

Liz Vladeck, General Counsel, attorneys for respondent, by Ezra Zonana, Esq.

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her daughter's unilateral placement at Big N Little: Bnos Menachem Program (Bnos Menachem) for the 2022-23 school year and private services from Little Mentchen, LLC (Little Mentchen) for the 2023-24 school years.  The district cross-appeals from the IHO's decision, raising alternative grounds for denying the parent's requested relief.  The appeal must be sustained in part.  The cross-appeal must be sustained in part.

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]).  In addition, when a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c).  The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (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, 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]).^[1]

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

When the student was in preschool, on August 19, 2021, a Committee on Preschool Special Education (CPSE) convened and developed an IEP for the student that recommended four 60-minute sessions per week of group (2:1) special education itinerant teacher (SEIT) services, two 30-minute sessions per week of group (2:1) occupational therapy (OT), two 30-minute sessions per week of group (2:1) speech-language therapy, and one 30-minute session per week of group (2:1) counseling (Parent Ex. K at pp. 1, 14).  According to the preschool IEP, at that time, the student was attending Bnos Menachem Head Start (id. at p. 4).

In preparation for the student's transition to school-age services, a CSE convened on May 4, 2022, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP for the student with a projected implementation date of September 6, 2022 (Parent Ex. I).^[2]  The CSE recommended that the student receive five periods per week of group special education teacher support services (SETSS), three 30-minute sessions per week of group speech-language therapy, two 30-minute sessions per week of group OT, and one 30-minute session per week of group counseling (id. at p. 9).

In a letter to a CSE chairperson, dated July 21, 2022, the parent, through her attorney, advised the district that it had not offered the student "a proper or adequate educational and school placement for the upcoming extended twelve-month 2022-2023 school year" and that, if such "issue" could not "be resolved," the parent intended to unilaterally place the student at Bnos Menachem for the 2022-23 school year and seek tuition funding or reimbursement from the district (Parent Ex. V at p. 2).^[3], [4]

On August 22, 2022, the parent executed a contract for the student's attendance at Bnos Menachem for the 2022-23 school year, from September 2022 through June 2023 (Parent Ex. L).

In a second letter to a CSE chairperson, dated August 22, 2022, the parent, through her attorney, notified the district that it had "become clear" to the parent that the student's needs could not "be met in a general education classroom" and requested that the district develop an IEP for the student that provided for "a full-time special education classroom for the upcoming 2022-2023 school year" (Parent Ex. W).^[5]  The letter indicated that, if the CSE did not convene and develop an IEP, the parent intended to unilaterally place the student at Bnos Menachem and seek tuition funding or reimbursement from the district (id.).

The student attended Bnos Menachem for the 2022-23 school year (see Parent Ex. O).

On May 22, 2023, the parent sent the district a letter on the letterhead of Bnos Menachem stating that "[i]t ha[d] become known" to her that the student "ha[d] made sufficient progress" at Bnos Menachem and, therefore, for the 2023-24 school year, she was "attempting to transition [the student] to a general education setting" (Dist. Ex. 4).  Accordingly, the parent requested that the district convene a CSE and develop an IESP for the student by July 1, 2023 (id.).

The student was referred by her parents for a psychoeducational evaluation, which was conducted on August 31, 2023 (Dist. Ex. 3).

On September 17, 2023, the parent executed a contract with Little Mentchen for the delivery to the student of seven hours per week of SETSS during the 2023-24 school year (Parent Ex. C).^[6]

A CSE convened on September 27, 2023, found the student continued to be eligible for special education as a student with a speech or language impairment, and developed an IESP for the student with a projected implementation date of October 12, 2023 (Dist. Ex. 1).  The CSE noted that the student was parentally placed in a nonpublic school and recommended that the student receive seven periods per week of group special education teacher support services (SETSS), three 30-minute sessions per week of group speech-language therapy, two 30-minute sessions per week of group OT, and one 30-minute session per week of group counseling (id. at pp. 9-10, 12).

According to the parent, she attempted to contact several providers to deliver SETSS to the student for the 2023-24 school year but was unable to find a provider willing to deliver services to the student at the district's "standard rate" (see Parent Ex. F).

For the 2023-24 school year, the student attended a general education class at the Bnos Menachem School and received seven hours per week of individual SETSS from Little Mentchen (see Parent Exs. B ¶ 11; D; G).

A. Due Process Complaint Notices

The parent, through a lay advocate, filed a due process complaint notice dated May 24, 2024, in which the parent alleged that the district denied the student a FAPE for the 2022-23 and 2023-24 school years (Parent Ex. A).  Initially, the parent invoked pendency, asserting that the student's pendency placement lay in the student's preschool IEP and consisted of SEIT, speech-language therapy, OT, and counseling services (id. at pp. 1, 2-3).  The parent challenged the May 2022 CSE and resultant IESP, arguing that the district failed to conduct an evaluation or classroom observation of the student, the CSE was not properly composed as it did not include a regular education teacher, and the recommendation for SETSS represented an inappropriate reduction in services compared to the student's preschool IEP (id. at p. 2).  The parent also alleged that the district failed to convene a CSE to engage in educational planning for the student for the 2023-24 school year and failed to assign a teacher to implement the services mandated in the previous IESP (id.).  For relief, the parent requested that the district prospectively and directly pay a private provider selected by the parent, at an "enhanced market rate," for SEIT services or SETSS for the 2023-24 school year (id. at p. 3).

In a due process complaint notice dated July 1, 2024, the parent, through the attorney who had sent the July 2022 and August 2022 letters to the district, alleged that the district failed to provide the student with a free appropriate public education (FAPE) for the 2022-23 school year (IHO Ex. I).^[7]  In particular, the parent asserted that she disagreed with the August 2021 IEP, which recommended SEIT, OT, speech-language therapy, and counseling services (id. at p. 3).  The parent indicated that the student required a special class with a ratio of no more than 12 students with one teacher, and one assistant, as well as "individualized support, modified and simplified instruction and direction, repetition, review, modeling, prompting, social skills instruction, a behavioral plan, counseling services, [OT] and speech-language therapy" (id. at p. 4).  The parent summarized the letters sent to the district in July 2022 and August 2022, including the statement in August 2022 that the student's needs could not be met in a general educational classroom and that the student required an IEP for the 2022-23 school year (id.).  The parent claimed that the district did not provide a proper or adequate educational and school placement for the student, necessitating her unilateral placement at Bnos Menachem (id.).  For relief, the parent sought direct tuition funding or reimbursement for the unilateral placement of the student at Bnos Menachem for the 2022-23 school year (id. at pp. 4-5).

B. Impartial Hearing Officer Decision

An impartial hearing convened on July 9, 2024 before an IHO from the Office of Administrative Trials and Hearings (OATH) and concluded on November 12, 2024, after five days of proceedings inclusive of prehearing and status conferences (see Pre-Hr'g Tr. pp. 1-62; Tr. pp. 1-81).^[8]  The IHO issued an order of consolidation, ruling that the May 2024 and July 2024 due process complaints notices would be heard together (IHO Ex. III).^{[9], [10], [11]}

In a final decision dated November 20, 2024, the IHO found that the district did not deny the student a free appropriate public education (FAPE) for the 2022-23 or 2023-24 school years (IHO Decision at p. 3).  The IHO noted that the claims for the two school years contradicted each other with the attorney representing the parent for the 2022-23 school year alleging that the August 2021 CPSE IEP was deficient and the lay advocate representing the parent for the 2023-24 school year requesting pendency based on the August 2021 CPSE IEP as the student's last agreed upon program (id. at pp. 7-8).^[12]  The IHO also questioned why the parent requested tuition funding for the 2022-23 school year based on a disagreement with the August 2021 CPSE IEP rather than the May 2022 IESP (id. at p. 8).  The IHO further indicated that, when the parent testified, she "seemed confused as to what school years she wanted [the s]tudent in a general education classroom as opposed to a special education classroom" and, overall, "did not seem credible" (id.).

Ultimately, regarding the 2022-23 school year, the IHO found there was no evidence that the parent disagreed with the May 2022 IESP, which was the operative plan in place for that school year (IHO Decision at p. 8).  The IHO also noted that, to the extent the parent disputed the lack of a recommendation from the CSE for 12-month services, the parent enrolled the student at Bnos Menachem only for the 10-month 2022-23 school year (id.).  As for the 2023-24 school year, the IHO found that the parent failed to timely request equitable services from the district by the June 1 deadline as required by Education Law § 3602-c (id. at p. 6).  The IHO noted that the parent did not present documentary or testimonial evidence to counter the district's June 1 affirmative defense, which was raised at the prehearing conference (id.).

IV. Appeal for State-Level Review

The parent appeals, through her attorney, alleging that the IHO erred in finding that the district did not deny the student a FAPE for the 2022-23 school year and did not have an obligation to implement an IESP for the 2023-24 school year.  Generally, the parent argues that the student required a program with a full-time special class for the 2022-23 school year, but that, based on the student's progress, the student required placement in a general education classroom with SETSS and related services for the 2023-24 school year.

For the 2022-23 school year, the parent alleges that the district failed to create an appropriate IEP and provide a public school placement for the student.  The parent asserts that, contrary to the IHO's findings, she disagreed with both the August 2021 IEP and the May 2022 IESP.  The parent argues that the district failed to meet its burden to prove that it offered the student a FAPE for the 2022-23 school year.  The parent further argues that the IHO erred in not reaching a finding regarding the appropriateness of Bnos Menachem and in not weighing equitable considerations.

For the 2023-24 school year, the parent asserts that the district failed to timely develop an IESP and failed to implement the IESP that it did develop.  The parent argues that the IHO erred in finding no evidence of a June 1 letter, asserting that no such notice was required given that the district did not develop an IESP until September 27, 2023.  Further, the parent contends that the district waived the requirement for the June 1 letter by developing the September 2023 IESP.  Additionally, the parent points to a letter in evidence from the parent to the district, dated May 22, 2023, in which the parent notified the district that she wanted an IESP.  Regarding relief for the 2023-24 school year, the parent argues that, because the parent did not seek tuition reimbursement, the district bore the burden of proof on all matters.  The parent further argues that the district did not come forward with evidence that she failed to cooperate, failed to provide notice to the district that she was placing the student in a nonpublic school, or that the parent could have found private services at a lower rate.

The parent requests district funding of tuition at Bnos Menachem for the 2022-23 school year and district funding of privately obtained SETSS from Little Mentchen and issuance of related service authorizations (RSAs) for related services for the 2023-24 school year.

In an answer and cross-appeal, the district argues that the IHO's decision should be upheld in its entirety but, as alternative bases for denying relief, argues that the parent failed to meet her burden to prove that the SETSS provided by Little Mentchen were appropriate for the student for the 2023-24 school year, and that, for both school years, equitable considerations do not favor an award of the parent's requested relief.

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 generallyForest 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" (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]).^[13]

The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]).  Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

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).

Under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).^[14]  "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]).  In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).  The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).^[15]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

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. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).

VI. Discussion

A. 2022-23 School Year

1. Scope of the Impartial Hearing

As an initial matter, the IHO found that the operative program in place for determining whether the parent was entitled to reimbursement for the cost of the student's placement at Bnos Menachem for the 2022-23 school year was the May 2022 IESP, and that the parent had not asserted any challenge to the May 2022 IESP in the July 2024 due process complaint notice (see IHO Decision at p. 8).

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

Here, within the July 2024 due process complaint notice, the parent stated disagreement with the August 2021 CPSE IEP, which, as the IHO found, was not the operative educational plan in place for the student for the 2022-23 school year, given the subsequent CSE meeting which resulted in the May 2022 IESP (Parent Ex. I; IHO Ex. I at p. 3; see IHO Decision at p. 8).^[16]  Consistent with the IHO's finding, the parent's due process complaint notice cannot reasonably be read to raise an allegation regarding the appropriateness of the May 2022 IESP (see Parent Ex. A).^[17],^[18]

However, in the July 2024 due process complaint notice, the parent went on to state that, for the 2022-23 school year, the student needed a full-time special education classroom and a behavior plan (IHO Ex. I at p. 4).  The parent then summarized her July and August 2022 letters that she had sent to the district, including her request in the August 2022 letter for an IEP (id.).  As for the allegation of a denial of a FAPE, the parent asserted that the district "failed to provide a placement and an appropriate program for the Student" necessitating her unilateral placement at Bnos Menachem (id.).

Thus, while the IHO correctly found that the parent did not challenge the May 2022 IESP in the July 2024 due process complaint notice, the IHO failed to rule on the parent's main contention relating to the lack of an IEP for the student for the 2022-23 school year (IHO Ex. I).

2. FAPE

Turning to the issue within the scope of the impartial hearing, the parties dispute whether the district was required to develop an IEP for the student during the 2022-23 school year and, if so, when.  Leading into the 2022-23 school year, there is no dispute that a May 2022 IESP was in place (see Parent Ex. I).  The parent did not allege in the due process complaint notice that the May 2022 CSE should have developed an IEP rather than an IESP (see IHO Ex. I).  Further, in her due process complaint notice and direct testimony by affidavit, the parent indicated that she requested an IEP from the district in July and August 2022, not before (Parent Ex. M ¶ 3; IHO Ex. I at p. 4).  Upon review of the parent's July 2022 letter to the district, it was too vague to convey any misunderstanding or change of heart around the parent's desire for an IEP and a public-school placement, referring broadly to the district's failure to offer the student "a proper or adequate educational and school placement" (Parent Ex. V at p. 2).  However, the August 2022 letter contained a request for an IEP for the student, noting that it had "become clear" to the parent that the student's needs could not be met in a general education classroom and expressing the parent's desire that the student be placed in a full-time special education classroom (Parent Ex. W at p. 2).

Relevant to the district's obligation to offer the student a FAPE after having developed the May 2022 IESP, in its Official Analysis to Comments in the Federal Register, the United States Department of Education noted that when a student is placed in a nonpublic school located outside of the district, a student's district of residence is responsible for providing FAPE, but further indicated that "[i]f the parent makes clear his or her intention to keep the child enrolled in the private elementary school or secondary school located in another LEA, the LEA where the child resides need not make FAPE available to the child" (71 Fed. Reg. 46,593 [Aug. 14, 2006]).  The United States Department of Education has maintained this position, in relatively recent guidance answering the following question:

If a parent makes clear his or her intention to keep the child with a disability enrolled in the private school, is the LEA where the child resides obligated to offer FAPE to the child and develop an individualized education program (IEP) for the following school year, and annually thereafter?

Answer: No.  Absent controlling case law in a jurisdiction, after the LEA where the child resides has made FAPE available to the child, and the parent makes clear his or her intention to not accept that offer and to keep the child in a private school, the LEA where the child resides is not obligated to contact the parent to develop an IEP for the child for the following year and annually thereafter.  However, if the parent enrolls the child in public school in the LEA where the child resides, the LEA where the child resides must make FAPE available and be prepared to develop an IEP for the child.

("Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools" 80 IDELR 197 [OSERS 2022]; see also "Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 at p. 12, VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).

Courts have grappled with the effect of a parent's intention to place a student at a nonpublic school on a district's obligation to provide the student with an IEP.  On the one hand, it is clear that a district violates the IDEA by refusing to convene a CSE meeting to develop an IEP when the parent of a student who is parentally placed in a private school is making inquiries about potentially enrolling a student in a public school for special education programming and an outdated IEP in that instance is not a permissible placeholder (Bellflower Unified Sch. Dist. v. Lua, 832 Fed. App'x 493, 496 [9th Cir. Oct. 26, 2020]).  However, in E.T. v. Board of Education of Pine Bush Central School District, after concluding that the district retained an obligation to offer the student a FAPE, the court found that the "issue of the parents' intent [was] a question that inform[ed] the balancing of the equities rather than whether the district had an obligation to the child under the IDEA" (2012 WL 5936537, at *16 [S.D.N.Y. Nov. 26, 2012]; see R.G. v. New York City Dep't of Educ., 585 F. Supp. 3d 524, 539 [S.D.N.Y. 2022] [examining the parents' intent as an equitable consideration]).  In contrast to the court's holding in E.T., at least two federal district courts have found that an objective manifestation of the parent's intention to place a student in a nonpublic school is a threshold issue regarding whether a district remained obligated to offer the student a FAPE (see Dist. of Columbia v. Vinyard, 971 F. Supp. 2d 103, 108-10 [D.D.C. 2013] [finding the court's explanation in E.T. "illogical"]; Shane T. v. Carbondale Area Sch. Dist., 2017 WL 4314555, at *15-*20 [M.D. Pa. Sept. 28, 2017]).^[19]

As noted above, the hearing record shows that, in August 2022, the parent requested that the district reconvene the CSE for the purpose of providing a full-time special education placement for the student (Parent Ex. W at p. 2).  Hence, the August 2022 letter placed the district on notice that the parent no longer wanted an IESP and triggered the district's obligation to convene the CSE.

State regulation provides that "within 60 school days of the referral for review of the student with a disability, the board of education shall arrange for appropriate special programs and services" (8 NYCRR 200.4[d], [e][i]).^[20], [21]  Here, the parent's August 2022 letter triggered the district's 60 day timeline, which means, taking into account school vacations and days off, by approximately November 22, 2022, the district should have convened the CSE to develop an IEP for the student.  However, the hearing record contains no evidence that the district reconvened the CSE, explained its refusal to do so, or responded to the parent's August 2022 letter in any way.  By failing to act in response to the parent's August 2022 letter, the district violated the procedural requirements of the IDEA and its State counterpart.^[22]

Since the district did not reconvene the CSE by November 22, 2022, the district denied the student a FAPE for at least a portion of the 2022-23 school year. 

3. Unilateral Placement

Having found that the district denied the student a FAPE for at least a portion of the 2022-23 school year, the next issue is whether Bnos Menachem was an appropriate unilateral placement for the student.

A private school placement must be "proper under the Act" (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 [1993]; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129).  Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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

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

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

a. Student's Needs

A review of the student's needs and then-current functioning provides the background necessary to evaluate the adequacy of the parent's unilateral placement of the student at Bnos Menachem for the 2022-23.

According to the May 2022 IESP, the parent had reported that the student "d[id] not yet know all the letters of the English or Hebrew alphabets," "kn[ew] shapes and colors, and some days of the week," and "c[ould] rote count to 10, but [wa]s confused with higher numbers" (Parent Ex. I at p. 2).  Academically, the student was reported as becoming distracted and losing focus easily and needing to be prompted to focus on instruction (id. at pp. 2, 4).

In July 2022, the student was enrolled at Bnos Menachem and, to assess the student's functioning, the school administered the Vineland Adaptive Behavior Scales, Third Edition (Vineland-3) using the comprehensive parent/caregiver form, which yielded standard scores of 53 in communication, 57 in daily living skills, and 40 in socialization (Parent Ex. P at p. 7).  The Bnos Menachem treatment plan indicated that the student presented with cognitive delays, had difficulty recalling and retaining information, and required frequent repetition of instruction (id. at p. 13).  The student was unable to complete tasks independently and relied on adult assistance (id.).  Her processing of information was considered "slow," and she struggled to "maintain joint attention for a set interval of time" (id.).  Further, the treatment plan indicated that the student had poor attention due to her processing delays, and she was easily distracted by environmental stimuli (id.).  In math, the student had difficulty identifying and writing numbers, struggled with the idea of "more or less," and had difficulty with "abstract concepts" (id.).  The treatment plan noted that, in reading, the student "lacked basic reading foundational skills," and "significantly" struggled with reading comprehension skills (id.).  The student was able to answer basic questions on what was read to her, but struggled to make inferences and did not understand cause and effect concepts (id.).

Regarding communication, both the May 2022 IESP and the Bnos Menachem treatment plan indicated that the student presented with "extremely significant" delays in articulation, receptive and expressive language, and attention span (Parent Exs. I at p. 2; P at p. 12).  The student had a difficult time recalling information from short passages that were read to her, and needed "stories to be broken down into simpler terms" (Parent Ex. I at p. 2).  The student's articulation skills were deficient, which limited the student from coordinating movements to articulate sounds correctly (id.).  The student had been unsuccessful with producing target phonemes accurately, which impacted her intelligibility (id.).  The 2022 IESP reported that the student displayed an open mouth posture, and her tongue tended to be visible during all activities (id.).  The student also displayed an interdental lisp when producing some sounds, had a tongue thrust, and displayed distortions which further impacted her intelligibility (id.).  The IESP also indicated that the student generally had difficulty following routine directions and activities and engaging in a task to completion, "seemingly due to a combination of poor attention span and very weak language skills" (id.).  The Bnos Menachem treatment plan noted that the student flapped her hands when others attempted to converse with her and was frustrated easily when unable to "express herself effectively" (Parent Ex. P at p. 12).

Turning to the student's social development and behavioral needs, the May 2022 IESP reported that the student could not transition from one activity to another and needed to be prompted to "transition smoothly and keep up" with class activities (Parent Ex. I at p. 3).  She also presented with difficulty in turn-taking, exhibiting some impulsivity (id.).  The IESP also indicated that the student had difficulty "settling down" after the class participated in an "active activity" (id.).  She demonstrated "continuous challenges" with maintaining social interactions and play with both peers and adults and also struggled maintaining eye contact with both (id.).  She was unable to demonstrate reciprocal conversation skills such as looking at the person with whom she was conversing and tended to talk without waiting for a response (id.).  The student had difficulty remaining calm when disappointed, was said to challenge authority and rules, and avoided activities perceived as too difficult (id.).  The Bnos Menachem treatment plan indicated that the student did not share preferred items (Parent Ex. P at p. 12).  The student demonstrated tantrums at times and was unable to "self-calm" (id.).  In addition, the student was reported to engage in "maladaptive behaviors that adversely affect[ed] her abilities to benefit from all settings" (id.). She wandered around the classroom during structured tasks and, during transitions, would kick, scream, or cry (id.).  The Bnos Menachem treatment plan also reflected that the student engaged in self-stimulatory behaviors such as "whirling in her seat" and hand-flapping, which "often prevent[ed] her peers from approaching her" (id.).

Regarding the student's physical development, the May 2022 IESP reflected that the student demonstrated attention span, handwriting, fine motor, visual motor/perception, and sensory processing delays (Parent Ex. I at p. 3).  A November 2022 Bnos Menachem teacher progress report indicated that the student had difficulty writing "newly" learned numbers and letters and needed reminders to hold her pencil correctly (Parent Ex. P at p. 17).

b. Bnos Menachem

The IHO did not reach the question of the appropriateness of Bnos Menachem and, on appeal, the district makes no allegations that the program was inappropriate to meet the student's needs.

The Bnos Menachem program supervisor (supervisor), in her affidavit, described the Bnos Menachem program as being "housed in a general education school building" and specifically designed for "preschoolers with disabilities that have behavioral challenges and language delays and/or academic challenges" (Parent Ex. X ¶ 6).  The supervisor indicated that the students with disabilities had several opportunities each day to "integrate with general education peers," to practice social skills, participate in social skills groups, and work on generalization of individual targeted skills (id. ¶ 9).  Additionally, the supervisor stated that the Bnos Menachem program was aligned with the New York State Common Core Curriculum but was modified in many different ways in order to meet the needs of an individual student (id. ¶ 7).  According to the supervisor, strategies and supports for a student would be identified in a comprehensive plan (id.).

At the impartial hearing, the supervisor testified that the program the student attended for the 2022-23 school year operated on a 10-month basis from September to June (Tr. p. 38).  The supervisor stated that the student entered the program in September 2022 with "severe behavioral, social, and communicative challenges," and engaged in maladaptive behaviors that adversely affected her ability to benefit from all settings (Parent Ex. X ¶¶ 10-11).  In addition, the supervisor indicated that, academically, the student "struggled significantly in both math and ELA" (id. ¶ 14).  The hearing record includes the student's daily schedule at Bnos Menachem which indicated that the student was scheduled to receive OT and speech-language therapy at the same frequency and duration as recommended in the May 2022 IESP (compare Parent Ex. N, with Parent Ex. I at p. 9).^[23]  As reflected in the supervisor's affidavit, Bnos Menachem developed a "treatment plan" for the student "designed to enable her to make progress with these challenges" and further, implemented a behavioral intervention plan (BIP) for the student after conducting a functional behavioral assessment (FBA) (Parent Exs. X ¶15; see Parent Ex. P at pp. 2-15).

The August 2022 FBA conducted by Bnos Menachem identified the student's targeted problem behaviors as: lack of joint attention; prompt dependency; wandering; latency to transition; fidgeting; self-stimulation; interrupting others; off-task behaviors; task refusal; screaming; kicking; crying; "whirling around"; and hand-flapping (Parent Ex. P at pp. 2-3).  The resulting September 2022 BIP included prevention strategies, an instructional plan for reinforcing alternative behavior, and behavior management strategies for each identified problem behavior (id. at pp. 9-10).  Prevention strategies identified to assist the student included visual schedules, visual timers, modified tasks with explicit instructions, a child-safety knob to prevent elopements, frequent breaks, coping methods, fidget toys, sensory breaks, and social skills lessons (id.).  Instructional plans focused on reinforcing the student's alternative behaviors, such as using a token economy, fidget toys, a designated break area, coping methods, and verbal praise (id.).  Behavior management strategies included maintaining demands, redirecting to tasks, modifying tasks, "block[ing]," and reinforcing appropriate behaviors (id.).  The student's reinforcers included dress up dolls, edibles, tangibles, and stickers (id. at p. 11).  The BIP indicated that the student's teacher communicated with the student's BCBA, parents, and related service providers to promote generalization and, additionally, that the teacher would encourage those working with the student to reinforce replacement behaviors and "place problem behaviors on extinction" (id.).

The September 2022 Bnos Menachem treatment plan included annual goals for the student in mathematics and English Language Arts (ELA), which included specific targets for improving her skills in addition, counting, reading, and writing (Parent Ex. P at pp. 12-14).  Progress was noted in in "all areas," but concerns remained about the student's ability "across all domains" (id. at p. 14).  The treatment plan included a parent involvement component with strategies to foster skill acquisition and goals for the parent to work with the student on at home (id.).

The September 2022 treatment plan also included social goals with reports of progress from December 2022 and June 2023 (Parent Ex. P at pp. 15, 46-51).  The student was working initiating play with peers, establishing eye contact, increasing functional play, modulating the volume of her voice, increasing self-regulation skills and use of coping mechanisms, and increasing listener responding skills to follow group instruction (id. at p. 15).  The treatment plan also included communication goals with progress reports completed in November 2022 and June 2023 using a developmental skills checklist (id. at pp. 14, 22-35).  Overall, review of the student's communication goals shows that they focused on manding single words, increasing intraverbal skills by responding to "wh" questions; manding to stop an undesirable activity; tacting and labeling verbs and improving listener responding skills by making eye contact (id. at pp. 14-15).

While the district does not raise any allegations about the appropriateness of Bnos Menachem on appeal, during the impartial hearing, it argued that Bnos Menachem went "beyond the least restrictive environment" for the student and that the evidence in the hearing record did not demonstrate "that there was a significant progress for the '22-'23 school year," noting that the student only achieved one annual goal, and that Bnos Menachem did not offer an extended 12-month school year (Tr. pp. 16, 66-67, 69).^[24]

With respect to the least restrictive environment (LRE), as noted above, the evidence in the hearing record indicates that the program was housed in "a general education school building" and that opportunities for access to nondisabled peers were available each day (Parent Ex. X ¶¶ 6, 9).  Further, it is well settled that, although the restrictiveness of a parent's unilateral placement may be considered as a factor in determining whether parents are entitled to an award of tuition reimbursement (M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000]; Walczak, 142 F.3d at 122; see Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]), parents are not as strictly held to the standard of placement in the LRE as are school districts (C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 830, 836-37 [2d Cir. 2014] [noting "while the restrictiveness of a private placement is a factor, by no means is it dispositive" and furthermore, "[i]nflexibly requiring that the parents secure a private school that is nonrestrictive, or at least as nonrestrictive as the FAPE-denying public school, would undermine the right of unilateral withdrawal the Supreme Court recognized in Burlington"]; see Carter, 510 U.S. at 14-15; M.S., 231 F.3d at 105 [stating that parents "may not be subject to the same mainstreaming requirements as a school board"]) and "the totality of the circumstances" must be considered in determining the appropriateness of the unilateral placement (Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]).

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

Here, contrary to the district's assertion during the impartial hearing, the evidence reflects that the student made progress during the 2022-23 school year while attending Bnos Menachem.

In the area of mathematics, according to a November 2022 teacher progress report, the student had trouble identifying numbers and writing their forms (Parent Ex. P at p. 16).  Further, the student had difficulty completing addition examples with sums from one to five and needed teacher modeling and repetition to "assist her with numbers" (id. at p. 16).  As of the June 2023 teacher progress report, the student had made progress and had mastered the following: labeling numbers up to 100; counting up to 50; displaying an understanding of 1:1 correspondence; and ordering three numerals them from least to greatest and "vice versa" (id. at p. 19).  Further, the student was able to complete simple addition "with sums of 10," though she was not yet able to complete subtraction equations or word problems (id.).

In the area of reading, the November 2022 teacher progress report noted that the student especially struggled with reading comprehension and that letter recognition continued to be difficult for her (Parent Ex. P at p. 16).  However, the teacher noted progress in the student's ability to retell a story that had been read to her and indicated that, with prompting, the student could answer questions regarding the story (id. at pp. 16-17).  By the June 2023 teacher progress report, the student had shown an improvement in her phonemic awareness skills as shown by her ability to count syllables, complete rhymes, and blend sounds and she was learning to read sight words (id. at pp. 19-20).  The June 2023 progress report further noted that the student had mastered the following goals in reading: ability to "ask and answer questions on stories;" identify and describe main characters; and identify major events in a story and identify the main idea of a story (id. at p. 20).

In writing, the November 2022 teacher report indicated that, while the student had mastered tracing her name and basic shapes, she had great difficulty with writing mechanics as she needed modeling on "exactly how to write the letter" and how to hold her pencil properly (Parent Ex. P at p. 17).  By the June 2023 teacher progress report, the student was able to write numbers and letters independently, demonstrated the ability to identify a properly spaced sentence, write three personal events with assistance, and write five sight words (id. at pp. 20-21).  The June 2023 progress report noted that the student was "showing grade-level prewriting skills" (id. at p. 20).

The June 2023 speech-language progress report indicated that, compared to the November 2022 speech-language progress report, the student had developed the ability to: use past tense and negatives; follow two and three-part instructions; comprehend concepts such as big and little, on and off, and stop and go; use "nearly 1,500 words"; and use plurals and a minimum of three-four words in a sentence (compare Parent Ex. P at pp. 29-31, with Parent Ex. P at pp. 22-24).  Likewise, the June 2023 OT progress report indicated that, compared to the December 2022 OT progress report, the student had developed the ability to copy block designs, show hand preference, complete small interlocking puzzles, and copy a circle and cross (compare Parent Ex. P at pp.41-42, with Parent Ex. P at pp. 36-37).

Thus, according to progress information within the student's treatment plan, as of June 2023, the student had demonstrated progress toward achievement of her communication, fine motor and social goals, as well as her math and reading skills (Parent Ex. P at pp. 21, 46-51).  Likewise, the program supervisor testified in her written affidavit that the student made significant progress across all areas throughout the 2022-23 school year (Parent Ex. X ¶ 18).  At the impartial hearing, the supervisor testified that the student "definitely made a significant progress in our program during the school year," and "made one grade level in every area of progress in every targeted area because she came in far behind" (Tr. p. 33).  The parent also testified that the student had made progress during the 2022-23 school year, such that she and the student's teacher felt that the student was ready to be transitioned into a general education class "with support" for the next school year (Tr. p. 47).

Based on the foregoing, the evidence in the hearing record shows that the parent met her burden to prove that Bnos Menachem identified the student's special education needs, developed goals that addressed those needs, and provided specially designed instruction in programming specifically tailored to the student in which she benefited and demonstrated progress.

4. Equitable Considerations

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.  Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).  With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

In its answer and cross-appeal, the district argues that equitable considerations do not favor an award of tuition funding for the 2022-23 school year because the parent did not establish transmittal of 10-day notice letters to the district and further contends that, to the extent the parent testified she did not receive a procedural safeguards notice to justify a lack of 10-day notice, the IHO found the parent's testimony was not credible, which should be afforded deference.

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]).  This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]).  Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

As noted above, the hearing record includes two letters from the parent through her attorney to the district purporting to be 10-day notices to the district of the parent's intent to unilaterally place the student (Parent Exs. V-W).  The July 2022 letter stated broadly the parent's view that the district had not offered the student a "a proper or adequate educational and school placement for the upcoming extended twelve-month 2022-2023 school year" but did not inform the district of the parent's disagreement with the program in place, which at that time was the May 2022 IESP, or state the parent's request for an IEP (Parent Ex. V at p. 2).  Thereafter, the parent requested an IEP from the district in her August 2022 letter, and, in the same correspondence, informed the district that "[t]he needs of [the student] [we]re such that she c[ould ]not wait for an extended period of time" and that, therefore, she "inted[ed] to unilaterally place" the student at Bnos Menachem (Parent Ex. W at p. 2).  The August 2022 letter bore the same date the parent signed the unconditional enrollment contract for the student's attendance at the unilateral placement on August 22, 2022 (Parent Exs. L at p. 3; W at p. 2).^[25]

With respect to transmittal of the July and August 2022 letters, the exhibits include facsimile cover sheets but not facsimile confirmation (see Parent Exs. V at p. 1; W at p. 1).  During the impartial hearing, in its opening statement, the district noted the lack of evidence of transmittal of the parent's July and August 2022 letters but did not go so far as to deny that the district received them (see Tr. p. 15).^[26]  The parent testified that the letters were sent but that she did not receive a response from the district (Parent Ex. Y ¶¶ 3-4).  The district did not cross examine the parent or rebut the parent's testimony regarding the letters being sent.^[27]  Accordingly, under these circumstances, the preponderance of the evidence supports a finding that the letter were sent.

Thus, the August 2022 letter to the district provided timely notice of a unilateral placement (see Parent Ex. W at p. 2).^[28]  However, more indicative of the parent's cooperation in this matter, or the lack thereof, is the timing of the parent's notice to the district of her request for a public school placement for the student, which was in the same letter as her statement of intent to unilaterally place the student (Parent Ex. W).  As noted above, even if the parent's prior intent to place the student at her own expense was not determinative of the district's obligation to offer the student a FAPE, it is a factor for the balancing of equities (see R.G., 585 F. Supp. 3d at 539; E.T., 2012 WL 5936537, at *16).  The phrasing and timing of the August 2022 letter requesting that the district develop an IEP "as soon as possible" and simultaneously stating her intent to unilaterally place the student reflects a lack of genuine cooperation, as the parent removed the student before giving the district an opportunity to respond to the parent's request for a public school placement (Parent Ex. W at p. 2).

Thus, even if I had found that the district denied the student a FAPE for the entire 2022-23 school year, rather than for the period of November 22, 2022 (60 school days after the date of the parent's August 22, 2022 letter) through the end of the school year, the same reduction would be warranted on equitable grounds.  Specifically, I find that the parent is entitled to an award of district funding for the prorated amount of the student's tuition for the period of November 22, 2022 through the end of the 2022-23 school year.

B. 2023-24 School Year

1. Equitable Services

The State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).

Here, the IHO's determination that the parent did not submit timely written notice to the district of her request for equitable services prior to June 1, 2023 is not supported by the hearing record (see IHO Decision at p. 6).  Rather, the hearing record includes a letter, offered into evidence by the district, which indicates it was transmitted on May 22, 2023, and states the parent's intent to "attempt[] to transition [the student] to a general education setting" and her request that the district convene a CSE and develop an IESP for the student so that the student can "transition with sufficient support" (Dist. Ex. 4).  The district argues that the May 2023 letter "would not constitute a request for equitable services pursuant to Educ[ation] Law § 3602-c" but does not explain the reasoning underlying that statement.  Based on the foregoing, I find that the parent provided sufficient and timely written notice of her request for equitable services for the student for the 2023-24 school year.

Beyond the issue of a June 1 request for equitable services, there is no dispute between the parties that the district did not convene a CSE to develop an IESP prior to the beginning of the school year and, once the September 2023 IESP was developed, that the district took no steps to implement the recommended services (see Dist. Ex. 1).  Accordingly, the district failed to meet its burden to prove that it offered or provided the student with appropriate equitable services for the 2023-24 school year.

2. Unilaterally Obtained Services from Little Mentchen

For the 2023-24 school year, the student was parentally placed in a general education class at Bnos Menachem and the parent does not seek tuition reimbursement from the district for the cost of the parental placement.  Instead, the parent alleged that the district failed to timely develop an IESP or implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from Little Mentchen for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof.  Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA.  Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services.  "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling.  They do so, however, at their own financial risk.  They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Carter, 510 U.S. at 14 [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

The parent's request for district funding of privately-obtained services must be assessed under this framework.  Accordingly, the federal standard for adjudicating these types of dispute, set forth above, is instructive for purposes of reviewing the appropriateness of unilaterally obtained SETSS from Little Mentchen for the 2023-24 school year.

a. Student's Needs

Before turning to the issue of whether the unilaterally obtained special education services from Little Mentchen were appropriate for the student for the 2023-24 school year, a discussion of the additional information about the student's needs as of the period of time leading up to and during the 2023-24 school year is warranted.

The student participated in a psychoeducational evaluation on August 31, 2023 to "ascertain her current level of functioning and to assist in her future academic planning" (Dist. Ex. 3 at p. 1).  Administration of the Weschler Intelligence Scale-Fifth Edition (WISC-V) to the student yielded an overall FSIQ score in the very low range (79) while her verbal comprehension composite score (92) and fluid reasoning composite score (67) were in the average and extremely low average range respectively (id. at p. 3).  The Wechsler Individual Achievement Test, Fourth Edition (WIAT-4) was used to test academic achievements in three domains: reading, writing, and mathematics (id.).  The August 2023 psychoeducational evaluation reported that administration of the WIAT- 4 reading subtests to the student yielded standard scores in reading comprehension (80), word reading (78), and early reading skills (45), indicating reading skills were below grade level requiring further development (id.).  The evaluation indicated that the student's standard score on the WIAT-4 writing subtest (105) was in the average range, while her standard score on the spelling subtest (60) was in the very low average (id. at p. 4).  The student's math calculation score (97) reflected skills in the average range, while her math problem-solving score (87) was listed as in the low average range (id.).  The evaluator indicated that the student's social/emotional functioning was assessed by observation and interview, reporting that the student was friendly and cooperative and stated that she liked school, "especially playing games and going outside" (id.).

The September 2023 IEP included a summary of the August 2023 evaluation result described above in addition to noting the parent's concerns regarding the student's ability to focus, follow directions, and retain information; ability to interact and build friendships; attention span, fine motor skills, and sensory processing; ability to transition; and her visual/motor perception and handwriting (Dist. Ex. 1 at pp. 1-3).  The parent indicated that the student had made "sufficient progress" at Bnos Menachem and was parentally placed at a nonpublic school in a general education setting (id. at pp. 2, 12).  The September 2023 IESP reflected that the student continued to lose focus easily, would benefit from preferential seating, and required redirection to tasks and prompts to focus (id. at p. 4).  Further, the IESP indicated the student would benefit from review of previously learned information for retention, as well as repetition when learning new concepts (id.).  The IESP reflected that the student needed tasks broken into smaller steps, modeling, scaffolded instructions, as well as praise and encouragement to assist her with challenging tasks (id.).  Lastly, the IESP reported that the student continued to exhibit deficits in expressive and receptive language and fine motor skills and needed to improve interactions with peers (id.).  The CSE recommended that the student receive seven periods per week of group SETSS, three 30-minute sessions per week of group speech-language therapy, two 30-minute sessions per week of group OT, and one 30-minute sessions per week of group counseling (id. at pp. 9-10).

The Little Mentchen special education director (director) indicated that the student presented with challenges in following text and sustaining focus on tasks and that, while she demonstrated a strong number sense, her issues with handwriting necessitated targeted intervention (Parent Ex. B. ¶ 19).  The director further noted that the student required assistance for "mastering number sentences," overcoming difficulties in phonemic isolation, and identifying rhyming words (id.).

b. Services from Little Mentchen

The Little Mentchen director stated in her affidavit that the company provided the student with seven hours per week of SETSS from September 2023 through June 2024 in the "mainstream school" setting at Bnos Menachem (Parent Exs. B ¶¶ 9, 11).  The director testified that two teachers provided the services to the student, one focusing on academics and the other focusing on the student's social/emotional skills (Tr. p. 61).  The director testified that the SETSS provider was "very much in close contact" with the student's teacher and, because "they were learning one-on-one. . . she was able to add anything that she had to add in order to get her to where she needed to be" (Tr. pp. 62-63).  To assist the student with her social/emotional skills, the director indicated that the SETSS provider worked with the student on "understanding how to regulate her emotions," noting that "different games" and manipulatives were used (Tr. p. 62).

In her written affidavit, the director reported that the student had developed her phonemic awareness and number sense; had successfully "gained control over pen movements" with a grip and explicit hand-over-hand instruction; and engaged with "Touchpoint Math, effectively transitioning from relying on images for counting to utilizing her fingers or visualizing the numbers" (Parent Ex. B ¶ 20).

The hearing record includes a March 12, 2024 SETSS progress report for the period of January-March 2024 (Parent Ex. G).  The progress report indicated that, in math, the student was "nearing proficiency in her ability to complete addition sentences," was acquiring "beginning skills in computing subtraction" and required prompting and visual aids to support her understanding (id. at p. 1).  The SETSS provider noted that "manipulatives, visual aids, scaffolding, guided practice, incremental tasks, and prompting" were used to assist the student improve her math skills (id.).  In reading, the progress report noted that the student had learned to distinguish between consonants and vowels, expanded her sight word repertoire, was then "able to answer "WH" questions about a text, identify the main idea depicted in a picture, and sequence images to form a coherent story" (id.).  The SETSS provider indicated that targeted reading interventions included read-aloud sessions, repeated readings, reinforcement, repeated instruction, "development software" guided practice, and scaffolding (id. at p. 2).  Turning to writing, the SETSS provider reported that the student had made "notable" progress in completing sentences with appropriate personal pronouns, and the student was working on expanding her understanding of sentence elements, such as identifying nouns and distinguishing between common and proper nouns (id.).  The SETSS progress report reflected that the student continued to work on fundamental grammar skills, "focusing on vital aspects like capitalization and punctuation" (id.).  Writing interventions included the use of visuals, scaffolding, guided practice, "development software," repeated instruction, and prompting (id.).  The progress report indicated that the student made significant progress in her ability to communicate her needs and emotions "demonstrating her growing self-awareness" and assertiveness (id.).  Additionally, the student had developed "strong problem-solving skills and flexibility" when dealing with unexpected changes, and was able to express her emotions, "allowing others to understand her feelings and provide support." (id. at p. 3).  While the student had made "great strides" in the areas previously noted, the SETSS provider stated that her skills were still emerging in "controlling her impulses and refraining from disruptive behaviors" (id.).  The SETSS progress report listed social/emotional strategies and supports used with the student as "social stories, behavior momentum, self-regulating strategies, reinforcement, prompting, and advance warning" (id.).

The district argues that the parent failed to demonstrate that the SETSS provided by Little Mentchen were appropriate in light of the much more supportive program at Bnos Menachem that the student attended the year prior, including a 12:1+1 special class, a BIP, and use of ABA methodology.  The district points to testimony of the Bnos Menachem supervisor indicating that the school could not "do magic" and that the student didn't achieve grade level functioning "in every area" by the end of the school year (see Tr. p. 33).  However, the supervisor also testified that the student "definitely made [] significant progress" and that, given the progress she did make amounting to one grade level in every targeted area, it was determined that she demonstrated "that ability to learn" such that "it was determined that she would try a different program for the next school year (id.).  As set forth above, the evidence in the hearing record supports the supervisor's characterization of the student's progress during the 2022-23 school year (see Parent Ex. P at pp. 16-51).  In addition, with respect to the student's needs emphasized by the district, including the student's ability to focus in the classroom and her difficulty with transitions and sensory needs, the hearing record shows that, in addition to SETSS, the student's classroom teacher would provide prompting and redirection in the classroom environment (see Parent Ex. G at p. 3).  Further, the district offered a similar program for the student in the September 2023 IESP, specifically recommending the same frequency and duration of SETSS as ultimately provided by Little Mentchen (compare Dist. Ex. 1 at p. 9, with Parent Exs. B ¶¶ 9, 11).

The district also indicates that, without the provision of speech-language therapy, OT, and counseling, the parent did not demonstrate the appropriateness of the unilaterally obtained services.  Although the September 2023 IESP recommended speech-language therapy, OT, and counseling, a unilateral placement is not mandated by the IDEA or State law to provide services in compliance with a plan such as an IEP or IESP.  Rather, it is well settled that parents need not show that their unilateral placement provides every service necessary to maximize the student's potential, but rather, must demonstrate that the placement provides education instruction specially designed to meet the unique needs of the student (M.H., 685 F.3d at 252; Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, at *9 [S.D.N.Y. Mar. 18, 2010]).  "The test for the private placement 'is that it is appropriate, and not that it is perfect'" (T.K. v. New York City Dep't of Educ., 810 F.3d 869, 877–78 [2d Cir. 2016] [citations omitted]).  Here, the SETSS provided by Little Mentchen targeted the student's communication, social/emotional, and fine motor needs.  For example, with respect to the student's receptive language skills, the SETSS progress report noted that the student was able to answer "WH" questions about a text and would work on increasing her understanding of text by differentiating between reality and fiction (Parent Ex. G at pp. 1-2).  Related to fine motor skills the Little Mentchen director noted the student's work toward controlling pen movements, (Parent Ex. B ¶ 20).  For social/emotional and expressive language skills, the SETSS progress report noted the student's "significant progress in her ability to communicate her needs and emotions" and indicated the provider would continue to work with the student on skills to manage her emotions and behaviors in the school environment (Parent Ex. G at p. 3).

Accordingly, taking into account the totality of the circumstances, the evidence in the hearing record reflects that the parent met her burden to prove that the SETSS provided to the student by Little Mentchen during the 2023-24 school year was specially designed to meet the student's unique needs.^[29]

3. Equitable Considerations

The district argues that equitable considerations do not support the parent's request for relief for the 2023-24 school year because the parent did not provide the district with a 10-day notice of her intent to unilaterally obtain services from Little Mentchen.  As noted above, reimbursement may be reduced or denied if parents do not provide a 10-day notice (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]).

After the parent requested equitable services from the district by letter dated May 4, 2023 (see Dist. Ex. 4), the district failed to put in place a plan or arrange for services for the student prior to the beginning of the 2023-24 school year.  While the district is correct that the hearing record does not include evidence that parent notified the district of her intent to unilaterally obtain private services, upon weighing the equities, I decline to reduce or deny relief to the parent on this ground.^[30]

VII. Conclusion

In summary, the district failed to meet its burden to prove that it offered the student a FAPE for the 2022-23 school year after November 22, 2022, the parent met her burden to prove that the unilateral placement of the student at Bnos Menachem was appropriate, and equitable considerations support an award of tuition funding for a portion of the 2022-23 school year from November 22, 2022 through the end of the school year.  With respect to the 2023-24 school year, the parent submitted written notice to the district requesting equitable services for the student at the parental placement and the district failed to meet its burden to prove that it had an IESP in place for the student prior to the start of the school year or that it arranged for the delivery of services to the student thereafter.  The parent met her burden to prove the appropriateness of unilaterally obtained SETSS from Little Mentchen and equitable considerations support an award of funding for such services for the 2023-24 school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision, dated November 20, 2024, is modified by reversing those portion which found that the district did not deny the student a FAPE or equitable services for the 2022-23 or 2023-24 school years and which denied the parent's requested relief;

IT IS FURTHER ORDERED that the district shall directly fund the student's tuition at Bnos Menachem for a portion of the 2022-23 school year from November 22, 2022 through the end of the school year;

IT IS FURTHER ORDERED that the district shall directly fund up to seven hours per week of SETSS delivered to the student by Little Mentchen during the 2023-24 school year, upon receipt of proof of delivery.

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Footnotes

[1] Education Law § 3602-c provides that, if disputes occur between parents and school districts under that statute, "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]).

[2] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).

[3] The July 2022 letter was titled "TEN DAY NOTICE" (Parent Ex. V at p. 2).  The letter bore the typed name of the parent in place of a written signature and referenced the parent's attorney as being authorized to proceed on the parent's behalf (id).  The letter in evidence is accompanied by a fax cover sheet from the parent's attorney to the district CSE chairperson (id. at p. 1).

[4] Bnos Menachem has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).

[5] The August 2022 letter was titled "FOLLOW UP TEN DAY NOTICE" (Parent Ex. W at p. 2).  The letter bore the typed name of the parent in place of a written signature and again referenced the parent's attorney as being authorized to proceed on the parent's behalf (id.).  The letter in evidence is accompanied by a fax cover sheet from the parent's attorney to the same CSE chairperson (id. at p. 1).

[6] Little Mentchen is a limited liability company and has not been approved by the Commissioner of Education as a school or company with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).

[7] The parent had previously filed another due process complaint notice concerning the 2022-23 school year, dated May 3, 2023, through the same attorney; however, the parent withdrew that complaint without prejudice (see Parent Ex. J).

[8] The transcripts of the four initial appearances are consecutively paginated; however, the transcript of the final hearing date devoted to addressing the merits of the matter is separately paginated.  For purposes of this decision, the first four transcripts will be cited as "Prehearing Transcripts" (i.e., Pre-Hr'g Tr. pp. 1-62).  The transcript of the last hearing date will be cited without prefix (i.e., Tr. pp. 1-81).

[9] The IHO originally issued an order regarding consolidation dated July 15, 2024; however, that order contained a typographical error and was superseded by the July 30, 2024 order (see Pre-Hr'g Tr. pp. 13-14; July 15, 2024 Interim IHO Decision).

[10] Both the attorney who filed the July 1, 2024 due process complaint notice regarding the 2022-23 school year and the lay advocate who filed the May 24, 2024 due process complaint notice regarding the 2023-24 school year represented the parent at the impartial hearing (see Pre-Hr'g Tr. pp. 42-48; Tr. pp. 17-18).

[11] During the impartial hearing, the district submitted a motion to dismiss the parent's due process complaint notice as it pertained to the 2023-24 school year, alleging that the IHO lacked subject matter jurisdiction over matters involving implementation of equitable services under Education Law § 3602-c (IHO Ex. V).  The IHO denied the district's motion (Tr. pp. 5-10; IHO Ex. V; see IHO Decision at p. 3).

[12] In her decision, the IHO opined that the "[p]reschool retained Parent Counsel for the 2022-2023 school year and the Agency retained Parent Advocate to pursue the 2023-2024 claims" (IHO Decision at p. 7).

[13] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.  The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).

[14] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).

[15] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students).  The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.).  The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.

[16] The Second Circuit has made clear that parents are entitled to rely on an educational plan "as written when they decide to [unilaterally] place" their child (Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 173 [2d Cir. 2021]; see R.E., 694 F.3d at 187-88 ["At the time the parents must decide whether to make a unilateral placement . . . [t]he appropriate inquiry is into the nature of the program actually offered"]).

[17] This is not an instance where the parent's due process complaint notice alleged that the IESP was inadequate or improper and, in conjunction with such allegation, contended that the student needed a full time special education program (see Application of a Student with a Disability, Appeal No. 24-393).

[18] When a matter arises that did not appear in a due process complaint notice, the next inquiry focuses on whether the district, through the questioning of its witnesses, "open[ed] the door" to the issue under the holding of M.H. v. New York City Department of Education (685 F.3d at 250-51; see also Bd. of Educ. of Mamaroneck Union Free Sch. Dist. v. A.D., 739 Fed. App'x 79, 80 [2d Cir. Oct. 12, 2018]; B.M., 569 Fed. App'x at 59; J.G. v. Brewster Cent. Sch. Dist., 2018 WL 749010, at *10 [S.D.N.Y. Feb. 7, 2018]; C.M. v. New York City Dep't of Educ., 2017 WL 607579, at *14 [S.D.N.Y. Feb. 14, 2017]; D.B. v. New York City Dep't of Educ., 966 F. Supp. 2d 315, 327-28 [S.D.N.Y. 2013]; N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 584-86 [S.D.N.Y. 2013]; A.M. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 282-84 [S.D.N.Y. 2013]; J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, *9 [S.D.N.Y. Aug. 5, 2013]).  Here, as the district presented no testimony at the impartial hearing, there is no basis for a finding that the district opened the door to the issue of the appropriateness of the February 2022 IESP.

[19] The Second Circuit has noted that "[a] local educational agency may not be required to offer an IEP if the parent's expressed intention is to enroll the child in a private school outside the district, without regard to any IEP" (Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 451 n.9 [2d Cir. 2015], citing Child Find for Parentally-Placed Private School Children with Disabilities, 71 Fed. Reg. 46,593 [Aug. 14, 2006]; but see J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 665-66 [S.D.N.Y. 2001] [noting that the "district-of-residence's obligations do not simply end because a child has been privately placed elsewhere"]).  The Court did not specifically address the situation presented here, where the nonpublic school the student attended was located within the district, and it may be that under that circumstance the district would not be relieved from the obligation to develop an IEP.  The Court also did not reach the issue of whether or how the parent's actions might have impacted on equitable considerations.

[20] According to a parent guide published in 2002 by the State Education Department's Office of Vocational Rehabilitation and Educational Services for Individuals with Disabilities (VESID), a "referral for review means the projected date of review as noted on [the student's] IEP or the date of the request for such review by [the parent], [the student's] teacher or another appropriate individual" ("Special Education in New York State for Children Ages 3–21 A Parent’s Guide," at p. 23 [May 2022], available athttps://www.nysed.gov/sites/default/files/programs/special-education/a-parents-guide-to-special-education.pdf).

[21] A "school day" is defined as "any day, including a partial day, that students are in attendance at school for instructional purposes" (8 NYCRR 200.1[n][1]).  "[D]uring the months of July and August, school day means every day except Saturday, Sunday and legal holidays" (id.).

[22] Even if the district had an obligation to develop an IEP annually for the student despite the parent's enrollment of the student in a nonpublic school at her own expense, on equitable grounds, as set forth below, I would not find that the parent was entitled to any relief for the period of time preceding November 22, 2022.

[23] Once weekly counseling, recommended in the student's May 2022 IESP, was not reflected in the student's daily schedule (see Parent Ex. N).

[24] As the hearing record does not reflect that the student experienced substantial regression and given that the lack of a recommendation for 12-month school year services from the district does not factor in the determination above that the district denied the student a FAPE after November 2022, I do not find that the lack of 12-month services at the unilateral placement is determinative of its appropriateness.

[25] The enrollment contract for the student to attend Bnos Menachem for the 2022-23 school year included an "UNCONDITIONAL OBLIGATION" clause which stated "[e]nrollment of the student by submission of this contract to the school i[s] an unconditional commitment for payment of the full tuition for the school year without any right to deduction, credit, and prorated apportionment of refund for any reason, including, without limitation, withdrawal, dismissal, absence, or illness of the student" (Parent Ex. L at p. 1).

[26] The district did not object to the letters being entered into evidence (see Tr. pp. 11-13).

[27] Although the IHO found that the parent overall "did not seem credible (IHO Decision at p. 8), the IHO also found that that the parent wrote to the district in July and August 2022 (id. at p. 7) and, therefore, appears to have found the parent credible at least on this point.

[28] As I find that the parent provided a timely 10-day notice, it is not necessary to address the issue of the parent's receipt of a procedural safeguards notice.

[29] In the closing paragraph of the request for review, the parent requests that the district be required to issue related service authorizations (RSAs) for the student's related services for the 2023-24 school year; however, the parent did not elsewhere argue that the IHO erred in failing to order relief in this form, and, given the above determination that the services unilaterally obtained by the parent for the 2023-24 school year met the student's needs, I do not find a basis to order additional relief beyond district funding of the unilaterally obtained SETSS.

[30] Although the parent indicated in her affidavit that she did not receive a procedural safeguards notice within a year of the 2022-23 school year (Parent Ex. Y ¶ 5), she did not make a similar statement for the 2023-24 school year.