STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-007
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:
Shehebar Law P.C., attorneys for petitioner, by Y. Allan Shehebar, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Nate Munk, 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 cost of her daughter's private services from Enhanced Support Services, Inc. (Enhanced Support) for the 2023-24 school year. The district cross-appeals from that portion of the IHO's decision which awarded compensatory education services. The appeal must be dismissed. 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]). Similarly, when a preschool student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local Committee on Preschool Special Education (CPSE) that includes, but is not limited to, parents, teachers, an individual who can interpret the instructional implications of evaluation results, and a chairperson that falls within statutory criteria (Educ. Law § 4410; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.1[mm], 200.3, 200.4[d][2], 200.16; see also 34 CFR 300.804). 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 relevant time, the student attended an early childhood program selected by the parent (Parent Exs. B at p. 1; F at p. 1). On August 15, 2023, a CPSE convened for an initial review to determine the student's eligibility for special education and related services (Parent Ex. B at p. 1). At the time of the August 2023 CPSE meeting, the student was two years and 10 months old (id.). The August 2023 CPSE found the student eligible for special education and related services as a preschool student with a disability and developed an IEP with a projected implementation date of September 1, 2023 (id. at pp. 1-3).[1] The August 2023 CPSE recommended that the student receive five hours per week of special education itinerant teacher (SEIT) services in a group of two delivered in Yiddish, and three 30-minute sessions per week of individual speech-language therapy delivered in Yiddish (id. at pp. 1, 9).[2]
On October 30, 2023, the parent signed a contract with Enhanced Support under which the agency would provide the student with three 30-minute sessions per week of speech-language therapy during the 2023-24 school year (Parent Ex. C at p. 1).[3] The parent therein agreed to be responsible for the cost of all services delivered by Enhanced Support "in the event that [the] [p]arent [wa]s unable to secure funding from the [district] or elsewhere" (id.).
During the 2023-24 school year, the student received three 30-minute sessions per week of speech-language therapy delivered by Enhanced Support (see Parent Exs. C at p. 1; D ¶ 10; F at p. 1).
A. Due Process Complaint Notice
In a due process complaint notice dated July 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A at p. 1). Specifically, the parent alleged that the district failed to implement the services recommended in the August 2023 IEP (id. at pp. 1-2).[4] The parent further alleged that, having no success in securing providers at the district's rate, she unilaterally secured providers at an enhanced rate (id. at p. 2). As relief, the parent requested funding or reimbursement "for the SETSS and related services" mandated in the August 2023 IEP at an enhanced rate and "reserve[d] the right to seek compensatory educational services for any services that were mandated but not provided to the [student] due to the [district]'s failure to implement said services" (id.).
B. Impartial Hearing Officer Decision
An IHO from the Office of Administrative Trials and Hearings (OATH) was appointed on October 29, 2024 (IHO Decision at p. 2). An impartial hearing was scheduled for November 4, 2024, but the IHO was unavailable on that day due to illness (SRO Ex. 1 at pp. 2-3).[5] The IHO offered the parties the option of rescheduling the hearing or relying on document submission (id.). The parent elected to proceed without a live hearing, and the district did not object (see id. at pp. 1-2). The district did not disclose documentary evidence or witnesses, hence, the evidence in the hearing record consists only of the exhibits disclosed by the parent, which included testimony by affidavit from the service coordinator at Enhanced Support (see Parent Exs. A-F; SRO Ex.1 at pp. 1-2).[6] The parent's attorney submitted a written closing statement, requesting direct funding of the cost of the student's unilaterally obtained speech-language therapy along with a bank of compensatory services for the mandated SEIT services that were not provided (see IHO Ex. I at pp. 1, 5).[7]
In a decision dated November 20, 2024, the IHO found that, having offered no evidence to dispute the parent's claim, the district did not meet its burden of proving that it offered the student a FAPE for the 2023-24 school year (IHO Decision at p. 9). The IHO then addressed whether the services provided by Enhanced Support during the 2023-24 school year were appropriate for the student (id. at pp. 9-10). According to the IHO, the parent did not meet her burden in that regard (id.) The IHO reasoned that, although the agency service coordinator testified that speech-language therapy "sessions were 'individualized' with 'a great deal of specialized instruction,'" the hearing record contained no information regarding the way in which services were individualized to meet the student's unique needs (id. at pp. 4, 10).[8] The IHO found that the student's speech-language pathologist was appropriately licensed and that the hearing record included "some subjective evidence of progress" (id. at pp. 4, 10). However, according to the IHO, that evidence, on its own, was insufficient to sustain the parent's burden (id. at p. 10).
The IHO also made alternate findings "for the purposes of appeal," stating that had she found that the parent's unilaterally obtained services were appropriate, she would have reduced the award by 10 percent on equitable grounds (IHO Decision at p. 10). The IHO found that the parent failed to provide the district with 10-day notice of her intention to obtain unilateral services and seek public funding, and further found that the requested rate of $295 per hour included the agency's loan interest, a cost which, according to the IHO, was not reimbursable (id.).[9]
Having determined that the parent failed to prove the appropriateness of the services she unilaterally obtained for the 2023-24 school year, the IHO denied the parent's request for funding of the cost of those services (IHO Decision at p. 10). However, the IHO ordered that the district provide the student with a bank of 180 periods of compensatory, bilingual SEIT services, to be provided in a group of two by a district provider, noting that the parent did not privately implement SEIT services (id.).[10]
IV. Appeal for State-Level Review
The parent appeals. The district cross-appeals. The parties' familiarity with the issues raised in the parent's request for review and the district's answer and cross-appeal is presumed and, therefore, the allegations and arguments will not be recited here in detail. The parties dispute whether the IHO erred in determining that the parent failed to prove the appropriateness of the unilaterally obtained services; and whether the IHO erred in determining that equitable considerations warranted reduction of the requested funding. Additionally, both parties have appealed the IHO's award of compensatory SEIT services for different reasons.
Neither party has appealed the IHO's determination that the district denied the student a FAPE for the 2023-24 school year. That determination has therefore, 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 (S.D.N.Y. March 21, 2013).
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" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[11]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
A. Unilaterally-Obtained Services
Prior to reaching the substance of the parties' arguments regarding the unilaterally obtained services, some consideration must be given to the appropriate legal standard to be applied. 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
Next, a review of the information available in the hearing record concerning the student's needs and then-current functioning will provide context to help assess whether the parent's unilaterally obtained speech-language therapy services were appropriate.
The hearing record includes the student's IEP, created on August 15, 2023 (Parent Ex. B at p. 1). According to the August 2023 IEP, evaluation results placed the student's full-scale IQ as measured by the Stanford-Binet Intelligence Scales-Fifth Edition (SB-5) in the mildly impaired range (55-69), with a nonverbal IQ in the borderline range (70-79) and a verbal IQ in the mildly impaired range (55-69) (id. at p. 3). On the Vineland Adaptive Behavior Scales – Third Edition (Vineland-3), the IEP noted the student's adaptive behavior composite was 77, in the moderately low range, with adequate daily living and motor skills, but moderately low communication and socialization skills (id.). The IEP also indicated the student's global development index score on the Developmental Assessment of Young Children, Second Edition (DAYC-2) was in the below average range and the student scored in the average range on the social/emotional subtest; in the below average range on the cognitive, adaptive behavior, and physical development subtests; and in the poor range on the communication subtest (id.).
According to the August 2023 IEP, the student's academic achievement and functional performance showed delayed cognitive development and significantly delayed expressive language skills, with a limited expressive vocabulary of about ten words (Parent Ex. B at p. 3). The IEP noted the student's "basic matching skills [we]re emerging," but "she lack[ed] basic number concepts and counting skills" (id.). In addition, the student "did not consistently follow one-step directions," "did not follow [two]-step directions," and "did not consistently respond to 'yes' or 'no' questions accurately" (id. at p. 4). The student was described as a visual learner, and her strengths included visual spatial reasoning in the low average range (id. at p. 3).
The August 2023 IEP also indicated that the student's social/emotional skills were age-appropriate, but her expressive language delays affected her "ability to socialize with her peers" (Parent Ex. B at p. 4). The student's play and leisure skills were described as adequate, but her interpersonal skills were described as moderately low, and her coping skills were described as low (id.). The IEP stated the student engaged in make-believe play, was able to share toys, took turns, and transitioned easily between activities (id.). However, the student did not express emotions verbally, apologize for mistakes, or act appropriately when introduced to new people, often becoming shy (id.).
While the evaluation results section of the IEP indicated the student's fine motor skills, as measured by the DAYC-2, were below average, the physical development section of the IEP indicated the student's gross and fine motor skills appeared to be age-appropriate (compare Parent Ex. B at p. 3, with Parent Ex. B at p. 5). The student's activities of daily living (ADLs) skills were also judged to be age-appropriate (Parent Ex. B at p. 5).
As detailed in the IEP, the parent reported that the student was friendly, played well with peers, tried to make friends, and maintained appropriate eye contact (Parent Ex. B at p. 4). However, the parent expressed concern that the student's limited language skills impacted her social communication abilities (id.). The parent also expressed concern that the student had "a limited vocabulary of about ten words" and she stated that the student spoke "in single word utterances that [we]re very unclear and difficult to understand" (id.).
To support the student in the classroom, the August 2023 IEP identified the following strategies to address the student's management needs: small group instruction, chunking, verbal and visual cueing, modeling, and positive reinforcement (Parent Ex. B at p. 6). The August 2023 IEP included goals and short-term objectives to improve the student's cognitive prerequisite skills and math readiness skills (id. at pp. 7-8).
The hearing record also includes a speech-language therapy progress report dated June 21, 2024 (Parent Ex. F at p. 1). According to the progress report, the student presented with severe delays in language, cognition, phonology, and articulation (id.). The student struggled with processing and basic concepts such as colors, numbers, animals, and opposites (id.). The progress report noted the student had "tremendous difficulty with her expressive language skills" (id.). Specifically, the student struggled with word order and "connecting words to form sentences" (id.). According to the progress report, the student had a limited vocabulary, and she was "very difficult to understand because of her phonological process errors and articulation deficits" such as cluster reduction, fronting, misplacing sounds, assimilation, and substitutions (id.). The student also struggled with receptive language in the areas of processing, following directions, and answering questions (id.).
2. Speech-Language Therapy Services from Enhanced Support
In the instant appeal, the parties dispute whether the IHO erred in determining that the parent failed to prove the appropriateness of the services provided to the student by Enhanced Support during the 2023-24 school year. The parent asserts that Enhanced Support focused on the deficits documented in the progress report and that the progress report discussed the methodologies and interventions used. According to the parent, the student's progress with cluster reduction, the "k" sound, increasing sentence length, expanding her vocabulary, and using multisyllabic words shows that her speech-language therapy was tailored to her individual needs. The district contends that the IHO correctly determined that the parent did not meet her burden of proof, as the record contains no information regarding the way in which services were individualized to meet the student's unique needs or the methodologies used.[12] The district further contends that, while the agreement between the parent and Enhanced Support contemplates that the agency will provide all recommended services, the hearing record contains no explanation for the agency's failure to provide SEIT services.
As explained below, the evidence in the hearing record is insufficient to meet the standard of proof under the second prong of the Burlington-Carter framework, which requires the parent to show that the services she unilaterally obtained for the student constituted specially designed instruction designed to address the student's unique education needs (see Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
The evidence in the hearing record indicates that the student received three 30-minute sessions per week of speech-language therapy delivered by Enhanced Support during the 2023-24 school year (see Parent Exs. C at p. 1; D ¶ 10; F at p. 1).[13] According to the June 2024 progress report, the student made progress with her cognitive skills and "great progress" with her expressive language skills (Parent Ex. F at p. 1). The student could now label colors and had improved her counting ability (id.). The student could now form sentences, although she often required prompting to do so, and had increased her "mlu" to three to five words, rather than one-word utterances (id.). The student had "learned to use multisyllable words, reduce cluster reduction[,] and . . . produce back sound 'k'" (id.). Nevertheless, while a finding of progress is a relevant factor to be considered in determining whether a unilateral placement is appropriate, it is not dispositive (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]).
Consistent with the IHO's findings, review of the hearing record reveals a dearth of information regarding the student's speech-language therapy sessions, the way in which services were individualized to meet the student's unique needs, and the methodologies used. The progress report discussed the student's needs, as well as the progress the student had achieved (see Parent Ex. F at p. 1). However, contrary to the parent's assertion, the progress report did not discuss the methodologies and interventions used to assist the student (see id.). Although the progress report included a list of goals, it did not indicate if or how the student worked toward those goals during the 2023-24 school year (see id.). The Enhanced Support service coordinator testified that sessions were "individualized" with "a great deal of specialized instruction," but he provided no supporting details in that regard (Parent Ex. D ¶ 15). Although session notes may have supplied information regarding the activities undertaken to address the student's needs and the service coordinator testified that daily session notes were made, no session notes were offered into evidence by the parent (id. ¶ 14).
Overall, the totality of the evidence does not support a finding that the parent met her burden under Burlington/Carter for the unilaterally-obtained speech-language therapy. Although the parent argues that she attempted to implement the speech-language therapy services that were recommended for the student in the August 2023 CPSE IEP, the parent must still come forward with evidence that describes the service and the delivery thereof. Accordingly, I find that the hearing record lacks sufficient evidence to show that the speech-language therapy services delivered by Enhanced Support to the student constituted specially designed instruction sufficient to meet the student's identified needs. As indicated above the only witness who testified on behalf of the parent was the service coordinator at Enhanced Support.
Although the progress report provided some information, it did not adequately describe the specially designed instruction used during speech-language therapy to address the student's identified needs. Without such evidence, I find that the parent did not sustain her burden to demonstrate how the unilaterally-obtained speech-language therapy provided specially designed instruction to meet the student's unique needs (see L.K. v. Northeast Sch. Dist., 932 F. Supp. 2d 467, 491 [S.D.N.Y. 2013] [in reviewing the appropriateness of a unilateral placement, courts prefer objective evidence over anecdotal evidence]).
Moreover, the hearing record lacks evidence that the student received SEIT services despite evidence that the student had a need for SEIT services (see Parent Ex. B at pp. 1, 9, 12). Although the parents need not show that the student received every special service necessary to maximize her potential (Frank G., 459 F.3d at 364-65), the program as a whole must still be "reasonably calculated to enable the [student] to receive educational benefits" (Carter, 510 U.S. at 11, 13-14, quoting Rowley, 458 U.S. at 203-04) when considered under the totality of the circumstances. While there could be an argument that providing any services to the student might be beneficial in light of the district's failure to do so, the hearing record includes no evidence that the parent attempted to obtain SEIT services.[14]
Based on the foregoing, I find that the IHO correctly determined that the hearing record did not include sufficient evidence to find that the speech-language therapy services procured for the student were appropriate and therefore, correctly denied the parent's request for direct funding of her unilaterally-obtained speech-language therapy for the 2023-24 school year (see Application of a Student with a Disability, Appeal No. 347 [determining that the parent failed to prove the appropriateness of the unilaterally obtained services where "the speech-language progress report failed to describe the methods used to instruct the student or the specially designed instruction used to address the student's needs;" the witness testimony failed to describe the speech-language therapy and how it was tailored to address the student's needs; and the hearing record indicated that the student had not received all of the recommended services over the course of the school year]; Application of a Student with a Disability, Appeal No. 24-548 [determining that the parent failed to prove the appropriateness of the unilaterally-obtained SETSS where the hearing record lacked evidence regarding the student's PT, OT, and speech-language services despite evidence of the student's needs in those areas]).
B. Compensatory Education
Having determined that the parent did not meet her burden of proving the appropriateness of her unilaterally obtained speech-language therapy services for the 2023-24 school year, I need not reach the issue of whether equitable considerations support the parent's request for funding of those services (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134). However, I must address the parties' contentions concerning the IHO's award of compensatory SEIT services. The district contends that the IHO erred in awarding compensatory SEIT services because the parent opted to seek funding of the cost of unilaterally-obtained services. The district further argues that the IHO's award of compensatory SEIT services is improper because the parent's contract with Enhanced Support contemplates the delivery of all recommended services, thus implying that the parent chose to forego SEIT services for the student. The parent contends that the IHO should have awarded compensatory SEIT services to be implemented by a qualified provider of the parent's choosing, rather than a district provider.
Accordingly, I now turn to the district's challenge to the compensatory education award.
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; Newington, 546 F.3d at 123 [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"]).
While some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement for the costs of a unilateral placement is also at issue for the same time period (see D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 [3rd Cir. 2012] [holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"]; P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 [3rd Cir. 2009] [holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school"]), the Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than the Third Circuit (compareP.P., 585 F.3d at 739 [finding that "[t]he right to compensatory education arises not from the denial of an appropriate IEP, but from the denial of appropriate education"], withE. Lyme, 790 F.3d at 456-57 [treating compensatory education as an available equitable remedy for a denial of a FAPE so as to effectuate the purposes of the IDEA and put a student in the same position he or she would have been in had the denial of a FAPE not occurred]). Unlike the Third Circuit, the Second Circuit's approach to compensatory education thus far may have left room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent's request for tuition reimbursement is denied under a Burlington-Carter analysis (see Application of a Student with a Disability, Appeal No. 16-050), or where a student is unilaterally placed but additional related services are required in order for the placement to provide the student with a FAPE (see V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *5–7 [S.D.N.Y. Aug. 17, 2022] [finding that awards of tuition reimbursement and compensatory education are not mutually exclusive and that an award of "both education placement and additional services may be necessary to provide a particular student with a FAPE"]).
In this case, the parent's due process complaint notice raised the matter of compensatory education as relief "for any services that were mandated but not provided" (Parent Ex. A at pp. 2-3). The parties do not dispute that the student was entitled to SEIT services as recommended in the August 2023 IEP (see Parent Exs. A at pp. 1-2; B at pp. 1, 10; IHO Ex. I at pp. 1, 5). Nor do the parties dispute the district's failure to deliver the services to which the student was entitled. While the parent's service agreement with Enhanced Support stated that she "was requesting that Enhanced Support . . . provide the recommended services to whatever extent possible" and Enhanced Support represented that it would "make every effort to implement the recommended services with suitably qualified providers for the 2023-24 school year," the only service specifically referred to as being provided by Enhanced Support was the speech-language therapy discussed above (Parent Ex. C). There is no further evidence concerning the parent's efforts to obtain, or Enhanced Support's efforts to provide, the recommended SEIT services. Accordingly, under the particular circumstances of this matter where the parent engaged in self-help and unilaterally obtained private services for the student, I find no basis for an award of compensatory education to, in effect, remediate gaps in the unilateral programming arranged for by the parent, especially absent specific evidence regarding any difficulties she encountered obtaining the services (see generallyApplication of a Student with a Disability, Appeal No. 24, 625; Application of the Dep't of Educ., Appeal No. 22-139). As a result, I agree with the district that the portion of the IHO's decision which awarded compensatory education to the parent in the form of a bank of SEIT services to be provided by the district is unsupported by the hearing record and must be reversed.[15]
VII. Conclusion
In summary, there is insufficient basis in the hearing record to disturb the IHO's determinations that the parent failed to prove the appropriateness of the services she unilaterally obtained from Enhanced Support for the 2023-24 school year; however the hearing record does not support the IHO's award of compensatory education for unimplemented SEIT services. Accordingly, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
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 that portion of the decision which awarded the parent a bank of compensatory SEIT services to be provided by the district.
Footnotes
[1] The student's eligibility for special education as a preschool student with a disability is not in dispute (see 34 CFR 200.1[mm]; 8 NYCRR 200.1[mm]).
[2] The summary information sheet attached to the August 2023 IEP indicates that the CPSE recommended five 30-minute sessions per week of SEIT services in a group of two, while the recommended special education programs and services section of the IEP includes a recommendation for five hours per week of SEIT in a group of two (compare Parent Ex. B at p. 1, with Parent Ex. B at p. 9).
[3] The contract stated that the parent confirmed her understanding that the student was entitled to receive funding or reimbursement from the district for the recommended individualized education services program (IESP) services (Parent Ex. C at p. 1).
[4] Although the student was recommended to receive SEIT services as a preschool student with a disability, the parent's July 15, 2024 due process complaint notice asserted that the presenting problem was the district's failure "to locate a [special education teacher support services (SETSS)] and related services provider to implement the [s]tudent's program" (Parent Ex. A at p. 1). 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.
[5] Although not marked as an exhibit or entered into evidence, email correspondence between the IHO and the parties' attorneys was submitted as part of the certified hearing record by the district as a supplemental document required to be included in the record by State regulation (8 NYCRR 200.5[j][5][vi]; 279.9[a]). For ease of reference, this correspondence will be cited as SRO Ex. 1.
[6] The IHO allowed the district the opportunity to submit objections to the parent's exhibits by email (SRO Ex. 1 at p. 2).
[7] The hearing record includes no written argument from the district.
[8] The IHO noted that, although the agency service coordinator testified that daily session notes were made and that goals were created for the student and reviewed quarterly, neither the session notes, the goals, nor the results of the quarterly reviews were in evidence (IHO Decision at p. 4). According to the IHO, the progress report summarized the student's deficits and progress made throughout the school year, but it did not describe the way in which sessions were individualized to meet the student's needs (id.).
[9] The IHO explained that IHOs lack authority, under the IDEA, to grant interest on tuition or other costs incurred by parents under the IDEA, and, if such an award would not be permissible for parents, it should not be permissible for agencies either (IHO Decision at p. 10).
[10] The IHO noted that five periods per week for the 36-week school year totaled 180 periods (IHO Decision at p. 10).
[11] 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).
[12] The district notes that an award for privately-obtained services is not warranted where the hearing record fails to identify elements such as what the student was working on educationally, whether goals are being addressed, whether progress is being made, or how the service is promoting the student's progress (Answer ¶ 10). According to the district, the service coordinator's vague assertions are insufficient to satisfy the parent's burden, as the coordinator did not provide services to the student and did not supply any details regarding the actual sessions, the drafting of progress reports, the development of the curriculum, or the implementation of certain techniques and methodologies (Answer ¶ 11).
[13] I note that the hearing record includes no attendance records or other evidence indicating the date on which the student began receiving speech-language therapy through Enhanced Support.
[14] The parent's answer to the district's cross-appeal, which is mislabeled as "answer to request for review," asserts that the parent was only able to secure a provider for speech-language therapy (Answer to Cross-Appeal at p. 5). The attorney's assertions are not evidence, however.
[15] Moreover, I note that the parent on appeal seeks to modify the IHO's compensatory education award to allow the parent to obtain SEIT services from a private provider of her choosing, which would effectively permit the parent "to engage in an end run around bearing the burden of proof for privately-obtained services" (see Application of a Student with a Disability, Appeal No. 24-242) and further raises questions about her efforts to obtain appropriate SEIT services during the 2023-24 school year.