STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-006
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:
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 in part her request to order respondent (the district) to fully reimburse her for services that she unilaterally obtained from Kinship Resources LLC (Kinship) and fully fund a bank of compensatory education services. The district cross-appeals, asserting that the IHO erred in awarding the parent relief. The appeal must be dismissed. The cross-appeal must be sustained.
II. Overview—Administrative Procedures
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 (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
During the 2022-23 school year, the student attended fourth grade at a nonpublic school and received special education services (see Parent Ex. B at pp. 1, 10). A CSE convened on May 10, 2023, found the student eligible for special education services as a student with an other health impairment, and developed an IESP for the student with a projected implementation date of May 24, 2023 (Parent Ex. B at pp. 1, 10).[1] The May 2023 CSE recommended that the student receive five periods of direct, group special education teacher support services (SETSS) per week, two 30-minute sessions of individual occupational therapy (OT) per week, one 30-minute session of individual counseling services per week, and one 30-minute session of group counseling per week (id. at p. 7).[2]
On May 30, 2023, the parent completed a form on district letterhead notifying the district that the student was parentally placed in a nonpublic school at her expense and requesting special education services for the student for the upcoming 2023-24 school year (Parent Ex. C). In a letter dated August 27, 2023, the parent provided 10-day notice to the district that if the district failed to implement the services recommended in the student's May 2023 IESP, the parent would obtain the recommended services from private providers and seek public funding for those services (Parent Ex. D).
In a "Service Agreement" dated October 17, 2023, the parent and Kinship agreed that Kinship would "provide special education services and supports included in the last-agreed upon [individualized education program] IEP or IESP" (Parent Ex. E at pp. 1, 3).[3]
A. Due Process Complaint Notice
In a due process complaint notice dated May 7, 2024, the parent, through her attorney, alleged that the district failed to provide the student with a FAPE for the 2023-24 school year by failing to implement the services recommended in the student's May 2023 IESP (Parent Ex. A at pp. 2, 3). The parent argued that the district left it to the parent to find service providers for the student on her own and that she was unable to implement the services with qualified providers at the district's "standard published rates" (id. at p. 2). The parent asserted that she was "compelled by the [district's] inaction" to implement the student's services by using "private agencies at enhanced provider rates" (id.). As relief, the parent requested an order for the district to implement and/or fund the student's services at enhanced rates, and an order for the student to receive a bank of compensatory education for services "at enhanced provider rates" (id.).
B. Impartial Hearing Officer Decision
After a prehearing conference on July 2, 2024, an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on July 29, 2024 (Tr. pp. 1-87). During the impartial hearing, the district conceded that it had failed to provide the student with special education services during the 2023-24 school year and stated multiple times that the only issue the district contested was the rates for which the services were provided (see e.g., Tr. pp. 17-18; 28-29). The district did not submit any documentary evidence, nor did it present any witnesses for this matter (see Tr. pp. 1-87).
In a decision dated November 19, 2024, the IHO determined that the district "concede[d] that FAPE was not provided for the relevant school years by virtue of [the district's] failure to provide the requisite services," and that "[t]he sole issue is reimbursement rate" (IHO Decision at p. 5). Next, the IHO found that the "[p]arties stipulated that the provider conducted some of the mandated sessions and agree[d] that compensatory education [wa]s available and appropriate for the unprovided services" (id. at p. 6). Regarding rate, the IHO found that the rate charged by Kinship was not justified and was not based on any relationship to actual cost (id.). The IHO determined that Kinship charged a variable rate based on the amount of money needed to cover overhead costs, not based on market rates (id.). The IHO also found that Kinship service providers were "paid via negotiations, not set rates," but the administrative costs remained the same regardless of the rate paid to the individual provider (id.). The IHO further found that the difference in price for the cost of services did not come from the type of services being provided, but rather was caused by the agency's variable costs in providing those different services (id.). The IHO concluded that the district had failed to provide the student with any services and the parent was forced to find her own providers, but that "it d[id] not follow that the provider c[ould] charge any rate it desire[d] because, [the district] provide[d] the funding" and, therefore, the IHO determined that "market rate" was appropriate (id.).
The IHO ordered the district to fund the cost of the student's service provider at "market rate" and for the district to fund the cost of 53 hours of compensatory SETSS and 34 hours of compensatory OT from a provider of the parent's choice at a market rate (IHO Decision at p. 7).
IV. Appeal for State-Level Review
The parent, with the assistance of a lay advocate appeals from the IHO's decision.[4], [5] On appeal, the parent argues that the district failed to support its assertion that Kinship's rate was excessive. The parent also argues that the IHO's findings regarding the rates were based upon an incorrect understanding of the hearing record and that he lacked a comprehensive understanding of Kinship's rates. Furthermore, the parent argues that the IHO failed to provide a ruling on the matter because the IHO did not place a dollar amount to the term market rate, thus leaving the "sole issue" unresolved and that it leaves the parent a quandary of how "market rate" relates to her contractually obligated rate with Kinship.[6] The parent asserts that "market rate is vague, meaningless and unenforceable" because the district's failure to implement the services and its internal decision making processes were the cause to the complaint.
The district submits an answer and cross-appeal, arguing that the IHO applied the wrong legal standard to address the private services unilaterally obtained by the parent during the 2023-24 school year. The district argues that the IHO should have conducted a Burlington/Carter analysis and concluded that the parent failed to meet her burden to show that the unilaterally obtained services delivered by Kinship were appropriate for the student. that the IHO was correct to award the parent funding at "market rate." The district cross-appeals from the IHO's compensatory education award, arguing that the student is not entitled to compensatory education because the parent unilaterally obtained services from Kinship, which agreed that it would provide the student with services, and there was no evidence presented regarding outstanding services.
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, 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]).
However, 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]).[7] "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.).[8] 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
The IHO's finding that the district denied the student a FAPE for the 2023-24 school year is not appealed by either party. Accordingly, this finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
A. Unilateral Placement
Turning first to the district's cross-appeal and argument that the IHO erred in failing to conduct a Burlington/Carter analysis of the services the parent unilaterally obtained from Kinship, the district is correct that the IHO did not conduct an analysis of the appropriateness of the services Kinship delivered to the student. Here, the student has been parentally placed in a nonpublic school 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 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 Kinship 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 Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [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.[9] Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student 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 (Carter, 510 U.S. 7; 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. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[10] 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "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).
Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1. The Student's Needs
Although the student's needs are not in dispute, a review thereof facilitates the discussion of the issue to be resolved—namely, whether the parent sustained her burden to establish the appropriateness of the unilaterally-obtained SETSS and OT services delivered by Kinship to the student during the 2023-24 school year. Here, the evidence of the student's needs consists primarily of the student's May 2023 IESP, which reflected information from progress reports developed during the 2020-21, and 2021-22 school years, and the Kinship SETSS progress report (Parent Exs. B at pp. 1-3; G).
At the time of the May 2023 CSE meeting, the student was nine years old and received SETSS, OT, and counseling services (Parent Ex. B at p. 1). As of the year prior, May 2022 (end of third grade), the student's reading skills were at a beginning of second grade level, and she had difficulty with sight words, decoding, "suffixes, prefixes, and her word attack skills" (id. at pp. 1-2). The IESP indicated that the student answered basic WH questions but had difficulty with inferential questions and became '"stuck with text to self connections and predictions" (id. at p. 2). The student had difficulty with spelling, did not space her writing appropriately, and her sentence were described as "run-on" and lacking end punctuation (id.). Additionally, the student's writing was legible but her letters were poorly formed (id.). According to the IESP, math was the student's strength, in that she was on grade level for computation, but not word problems and she had difficulty with coin recognition, had not "solidified single digit subtraction and addition," and needed "a lot of manipulatives and [wa]s unsure of herself" (id.). Socially, the IESP reflected reports that the student was "learning to make more friendships and relationships," and "present[ed] with social anxiety as per parent" (id. at p. 3). A March 2021 OT progress report reflected in the IESP indicated that the student required visual cues for letter reversals, incentives to address hygiene, and prompts when making personal choices, while learning to identify her wants and expressing them (id.).
2. Services From Kinship
Having reviewed the hearing record to identify the student's needs, the inquiry now turns to whether the parent's unilaterally-obtained SETSS and OT services from Kinship during the 2023-24 school year provided the student with specially-designed instruction to meet those needs. As noted above, to qualify for reimbursement under the IDEA, parents must demonstrate that the unilateral placement provided instruction specially designed to meet the student's unique needs, supported by services necessary to permit the student to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). Regulations define specially designed instruction, in part, as "adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).
The parent testified that the student's SETSS was delivered by a special education teacher, who began providing services in either September or October 2023 (Tr. pp. 50, 54-56, 59; Parent Ex. F). In a progress report dated March 6, 2024, the SETSS provider reported that the student was in fifth grade at a nonpublic school and exhibited "delays in math, writing, social, and language skills" (Parent Ex. G at p. 1). In reading, the progress report indicated that the student's comprehension was above grade level, and she had "great fluency" (id.). In writing, the SETSS provider reported that the student was spelling at a second-grade level, spelled words as they sounded, lacked grammar skills for short writing passages, exhibited poor sentence structure, and difficulty keeping her thoughts organized (id.). Additionally, the SETSS provider reported that it was difficult to read the student's written assignments because they were "illegible," "messy," and "sloppy" (id.). According to the SETSS progress report, the student "struggle[d] with basic math skills such as computing single-digit multiplication and division," and it was "difficult for her to learn new concepts in a group setting" in that she "need[ed] lots of prompting and repetition to learn a new math concept" (id.).
Regarding specially designed instruction, the SETSS provider reported using "various personalized strategies and interventions to help [the student] reach her academic goals" and that she "learn[ed] best through visual aids" (Parent Ex. G at p. 1). To address writing needs, the SETSS provider "help[ed] [the student] learn how to edit her writing by modeling and having her edit the work," and have the student "focus on writing neat and keeping her thoughts organized and structured" (id.). Regarding math needs, the SETSS provider reported helping the student "read the question and break[] it down into small segments so she c[ould] comprehend and compute the example" (id.). The student was also provided with "graphic organizers, manipulatives, math cubes, colored pens, and visualizations to help her compute" (id.). Further, the student was "taught how to read a word problem and decide what computation to use" (id.).
Regarding the student's OT services, the Kinship administrator testified that Kinship did not begin providing OT services to the student until April 2024 because it was "hard to find a therapist" (Tr. pp. 62, 64-65; see Parent Ex. E at pp. 1, 3). The student's OT services were delivered by a licensed occupational therapist, who maintained weekly session notes starting the week of April 7, 2024 and ending the week of June 16, 2024 (Parent Exs. H; I). The session notes indicated that the student worked on activities involving sensory input; upper extremity weight bearing; fine motor function, coordination, and speed; bilateral coordination; core strengthening; problem solving; movement input; gross motor, visual motor integration; and balance (see Parent Ex. I). Instructional techniques and materials used included an obstacle course, trampoline, bean bags, neoprene tunnel, netball, demonstration, verbal cues, practice, snap circuits, word scramble, sewing projects (lacing, stitching), and ball activities (id.).
Although the March 2024 SETSS progress report identified the student's academic needs and the interventions the SETSS provider used with the student during the 2023-24 school year, the hearing record overall does not provide sufficient evidence describing how the student's special education needs were met during the remainder of the school day in her mainstream classroom when she was not receiving special education support (see generally Tr. pp. 1-87; Parent Exs. A-K). For example, the SETSS progress report reflected that it was difficult for the student "to learn new concepts in a group setting," and that she needed "lots of prompting and repetition" to learn new math concepts, yet the hearing record is devoid of any evidence concerning the student's mainstream nonpublic school, the instruction she received therein, or how the student's need for individual instruction and that level of prompting and repetition were met in her mainstream classroom (Parent Ex. G at p. 1). Additionally, the SETSS provider reported that the student "ha[d] a tough time socializing," she "avoid[ed] eye contact and shie[d] away when speaking to her teacher," "seem[ed] afraid and very untrusting" and was "really troubled" (id. at p. 2). According to the SETSS provider, the student "carrie[d] a lot of emotions on her shoulders and [wa]s extremely weighted down by them" kept "a lot to herself and d[id] not share with others," and "need[ed] guidance on how to deal with [her emotions], express herself, and help herself" (id.). Further, the SETSS provider reported that the student's expressive language skills were "poor," in that she struggled to tell her teacher what she needed and did not understand (id.). While the SETSS provider indicated that to address the student's social/emotional and language needs she provided the student with "encouragement, space, discussion time, and praise" the parent testified that the student did not receive any counseling services either through the district or Kinship during the 2023-24 school year, and the hearing record does not otherwise include evidence regarding how the nonpublic school addressed these needs (Tr. pp. 58-59; see Parent Exs. A-K; Tr. pp. 1-87).
Given the totality of the circumstances, the evidence in the hearing record supports a finding that the parent failed to meet her burden to establish that the unilaterally-obtained SETSS and OT services were specially designed to meet the student's needs. Consequently, there is no reason to disturb the IHO's determinations, and there is no reason to reach the question of whether equitable considerations weighed in favor of the parent's requested relief.
B. Compensatory Education
The district argues that the IHO erred in awarding the parent compensatory education because the parent failed to provide documentary evidence of what services the student had received throughout the school year and what services were still outstanding.
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M., 758 F.3d at 451; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).
In this matter, there is no dispute that the district was required to provide the student with the services for the 2023-24 school year and that the parent submitted into evidence a SETSS progress report and OT session notes for the services they unilaterally obtained from Kinship (Parent Exs. G; I). However, the SETSS progress report contains no evidence regarding how often sessions were conducted throughout the 2023-24 school year (see Parent Ex. G). The OT session notes provide evidence of when the student's OT sessions began, but do not provide any evidence regarding how many sessions were conducted (see Parent Ex. I). During the impartial hearing, the parent's advocate made unsworn statements indicating that that the student had received 127 sessions of SETSS throughout the 2023-24 school year with 53 sessions remaining and that the student had received five and a half hours of OT throughout the 2023-24 school year with 34 hours remaining (Tr. p. 45), but there was no evidence in the hearing record to support these assertions. The attorney for the district made a qualified statement that the district would not take issue with an award of compensatory education, so long as "we figure out" the exact number of hours of services that were missed (Tr. pp. 42-43).
However, the IHO ordered compensatory education solely on an unsworn statement made by the parent's advocate during the impartial hearing, and review of the remainder of the evidence in the hearing record shows there is otherwise no evidence regarding the number of SETSS and OT sessions, if any, the student had not received by the end of the 2023-24 school year (Tr. pp. 1-87; Parent Exs. A-K). The undersigned has often indicated that it may not be appropriate in the administrative due process forum to continue to place the burden of proof regarding compensatory education relief on the district in an administrative due process proceeding, and I note that no Court or other authoritative body in this jurisdiction has addressed the topic to date (Application of a Student with a Disability, Appeal No. 24-213; Application of a Student with a Disability, Appeal No. 23-096; Application of a Student with a Disability, Appeal No. 23-050). Where the parent seeks relief in the form of compensatory education to be provided by parentally selected private special education companies, I find it is appropriate to place the burden of production and persuasion on the parent with regard to the adequacy of the proposed relief.
Here, the IHO erred in relying on the unsworn statement of the parent's advocate to determine the number of compensatory SETSS and OT hours the student was entitled to receive from Kinship. The parent unilaterally obtained services from Kinship but failed to submit any evidence into the hearing record to establish the number of missed hours, if any, or why they were missed. Accordingly, I find that the IHO erred in ordering compensatory education SETSS and OT services for the student at market rates under the circumstances of this case.
VII. Conclusion
I have considered the parties' remaining contentions and find that I need not address them in light of my decision herein.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED.
IT IS ORDERED that the portion of the IHO's decision dated November 19, 2024 that ordered the district to fund the costs of the unilaterally obtained services from Kinship for the 2023-24 school year is reversed; and
IT IS FURTHER ORDERED that the portion of the IHO's decision dated November 19, 2024 that ordered the district to fund a bank of compensatory SETSS and OT services is reversed.
Footnotes
[1] The student's eligibility for special education as a student with an other health impairment is not in dispute (see 34 CFR 300.8[c][9]; 8 NYCRR 200.1[zz][10]).
[2] SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district.
[3] Kinship has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[4] The parent's original request for review, dated December 30, 2024, was rejected by the Office of State Review for failing to comply with State regulations. State regulation provides that "[a]ll pleadings shall be signed by an attorney, or by a party if the party is not represented by an attorney" (8 NYCRR 279.8[a][4]). The parent's original request or review was signed by the parent's lay advocate. The parent was given time to amend her request for review to comply with State regulations.
[5] The parent's request for review is miscaptioned "Answer and Reply" (Req. for Rev. at p. 2).
[6] On February 24, 2025, the parent's lay advocate requested an extension to file the parent's answer to the cross-appeal, three days after the answer to the cross-appeal was to be served upon the district by February 21, 2025. The district's attorney consented to the parent's lay advocate's late extension request. The lay advocate is warned that, in future matters, an SRO may be less inclined to grant a request for extension after the final due date to submit and serve that pleading has passed. In this matter, in the exercise of my discretion, the lay advocate's request for extension to file the parent's answer to the cross-appeal was granted until March 7, 2025. However, March 11, 2025, the parent's lay advocate, again, requested an extension, four days after the answer to the cross-appeal was to be served upon the district. Additionally, the parent's lay advocate incorrectly requested an extension to file a reply to the answer to the cross appeal rather than an answer to the cross appeal. The extension request for a reply was denied.
[7] 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]).
[8] 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.
[9] There are very few judicial determinations related to the dual enrollment statute in which the parent has enrolled their child in a nonpublic school of their own volition and the child is at the same time enrolled in the public school for purposes of receiving special education services from the public school. State court authorities have also cited to the federal framework when a public school district has failed in its obligations to provide appropriate special education services and parents have resorted to self-help and retroactively sought the costs from the public school district (Ne. Cent. Sch. Dist. v. Sobol, 170 A.D.2d 80, 88 [3rd Dep't 1991], aff'd as modified, 79 N.Y.2d 598 [1992]; Paul T. v. S. Huntington Union Free Sch. Dist., 49 Misc. 3d 231, 250 [Sup. Ct. Suffolk Co. 2015]).
[10] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the special education that the parent obtained from Kinship (Educ. Law § 4404[1][c]).