STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-025
Application of a STUDENT WITH A DISABILITY, by his parents, 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 PC, attorneys for petitioners, by Ariel A. Bivas, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Gail Eckstein, 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. Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) fund the costs of their son's private services delivered by Alpha Student Support (Alpha) for the 2023-24 school year and fund a bank of compensatory education services. The district cross-appeals from that portion of the IHO's decision that found that IHOs have subject matter jurisdiction to address the parents' claims. The appeal must be dismissed. The cross-appeal must be dismissed.
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, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail. Briefly, a CSE convened on March 12, 2020, determined that the student was eligible for special education as a student with a speech or language impairment, and developed an IESP with a projected implementation date of March 16, 2020 that recommended that the student receive five periods per week of group special education teacher support services (SETSS) and three 30-minute sessions per week of individual speech-language therapy (Parent Ex. B at pp. 8-9, 11).[1], [2], [3]
There is no evidence in the hearing record regarding the student's educational history between the March 2020 IESP through the end the 2023-24 school year.
In a letter to the district dated and emailed on May 31, 2023, the parents, through their attorney, notified the district of their intent to place the student in a nonpublic school for the 2023-24 school year and requested that the district provide the student with special education services (Parent Ex. G).
On May 9, 2024, the parents signed a "parent service contract" with Alpha for the provision of services to the student for the 2023-24 school year beginning September 5, 2023 and concluding June 30, 2024 (Parent Ex. C). According to the contract, Alpha would "make every effort to implement" the services recommended by the district which comprised of five periods per week of group SETSS and three 30-minute sessions per week of individual speech-language therapy (id.). The contract further specified that Alpha intended to provide SETSS during the 2023-24 school year at a rate of $195 per hour, but it did not indicate that Alpha intended to provide speech-language therapy or a rate for such service (id.).
A. Due Process Complaint Notice
In a due process complaint notice dated July 12, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A). Specifically, the parents alleged that the district failed to implement the special education services recommended in the March 2020 IESP and that, because the parents had no success securing SETSS and related services providers at the district rate, they unilaterally secured their own providers to work with the student at an enhanced rate (id. at p. 2). The parents requested pendency pursuant to the March 2020 IESP; funding for privately-obtained SETSS and related services "mandated in the [March 2020] IESP" at enhanced rates; and compensatory education services for any services that were mandated but not provided to the student (id.).
In a due process response dated August 20, 2024, the district generally denied the parents' allegations and asserted, among other things, that it intended to pursue a motion to dismiss the parents' claims (see Due Process Response at pp. 1-2).
On or about August 30, 2024, the district moved for dismissal, arguing that the IHO lacked subject matter jurisdiction and that the parents' claims were unripe for adjudication (see Mot. to Dismiss at pp. 1-6). The parents' attorney served opposition papers on or about September 3, 2024 (see Opp'n to Mot. to Dismiss at pp. 1-6).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on September 6, 2024 and concluded the same day.[4] At the outset of the hearing, the IHO orally denied the district's motion to dismiss on the hearing record (Tr. pp. 8-9). The parents then offered various exhibits, each of which the IHO admitted into evidence (see Tr. pp. 11-12; Parent Exs. A-G). Among the parents' exhibits was an affidavit of an administrative employee at Alpha, who also appeared for cross-examination during the hearing (see Tr. pp. 11-12, 16-19; Parent Ex. D). The district offered five exhibits into evidence and the parents objected to two of them; the IHO sustained the objections and admitted the other three exhibits into evidence (Dist. Exs. 2-3; 5). The district presented no witness testimony during the hearing (see Tr. pp. 1-28).
In a written decision dated December 2, 2024, the IHO again addressed the district's motion to dismiss and determined that she had jurisdiction over the parents' due process complaint notice, noting there was no case law that stated otherwise (IHO Decision at p. 4). Regarding ripeness, the IHO determined that the parents' claims in their July 12, 2024 due process complaint notice were based on the previous 2023-24 school year and thus were ripe for adjudication (id.). The IHO noted she previously denied the district's motion on the hearing record (id.).
Next, the IHO determined the district denied the student a FAPE on an equitable basis by failing to implement the student's IESP during the 2023-24 school year (IHO Decision at pp. 5-6).
Turning to relief, the IHO examined the parents' request for district funding of unilaterally obtained services as a form of compensatory education (IHO Decision at pp. 8-10). The IHO determined that the hearing record did not support an award for compensatory education because there was no evidence the student was receiving the mandated services that met his special education needs (id. at pp. 8-9). The IHO found that the Alpha secretary who testified during the impartial hearing had no substantive knowledge of the student or of the services the student received; that the June 2024 progress report had no explanation of the provider's methodologies, how the provider's instruction addressed the student's challenges, and what, if any, actual progress was made by the student; and that it was unclear from the hearing record how the recommendations of the outdated March 2020 IESP or the SETSS provided to the student during the 2023-24 school year actually met the student's needs (id.). The IHO also noted that it was unclear from the hearing record if the student's March 2020 IESP, the basis of the student's request for services during the 2023-24 school year, actually reflected the student's present levels of academic achievement and functional performance (id. at p. 10).
Based on the forgoing reasons, the IHO denied the parents' requested relief and directed the CSE to conduct updated evaluations and/or assessment of the student and reconvene to create an IESP based on such evaluations/assessments (IHO Decision at p. 10).
IV. Appeal for State-Level Review
The parents appeal and allege that the IHO erred in determining that the "record fail[ed] to demonstrate that the [s]tudent [was] receiving the mandated services that [met] the [s]tudent's special education needs." The parents further argue that the IHO erred in determining that the June 2024 SETSS progress report did not explain the provider's methodologies, how the provider's instruction addressed the student's challenges, and what, if any, actual progress was made by the student, asserting that the progress report did not have to identify all the student's areas of need for the SETSS to be appropriate. The parents also disagree with the IHO's determination that the evidence did not support an award for compensatory education.[5] As relief, the parents seek an order directing the district to fund the costs of the student's unilaterally obtained SETSS delivered by Alpha during the 2023-24 school year and a bank of compensatory education at a "reasonable market rate" to be determined by the implementation unit for speech-language services.
In an answer, the district responds to the parents' allegations and generally argues to uphold the IHO's decision in its entirety. As a first defense and cross-appeal, the district argues that the IHO erred by failing to dismiss the matter for lack of subject matter jurisdiction. Next, the district contends that the IHO properly found that an award of compensatory education was not supported by the hearing record and further argues that there was no evidence as to the amount of and detailed basis for the compensatory services being sought. Next, the district argues that the IHO erred by not applying the Burlington/Carter standard and claims that the parents did not meet their burden that the unilaterally obtained SETSS were appropriate to meet the student's needs. Lastly, as an alternative ground to deny all relief requested, the district asserts that equitable considerations do not weigh in the parents' favor. More specifically, the district argues that: there was no proof of notice to the district of the parents' intent to unilaterally-obtain SETSS by a private provider; there was no contractual relationship between the parents and Alpha for approximately eight months while the SETSS was allegedly being provided; and there was no evidence of the parents' financial obligation at the start of the school year or of an legal obligation to pay for SETSS during the 2023-24 school year.
In an answer to the district's cross-appeal, the parents assert that the IHO had subject matter jurisdiction to address their claims. With respect to the Burlington/Carter standard, the parents recognize that the standard will apply and assert that they presented their evidence accordingly. Finally, the parents argue that equitable considerations weigh in favor of their requested relief, arguing that they were not required to provide 10-day notice and that they established a financial obligation for the unilaterally obtained 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]).[6] "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 individualized education program" (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.).[7] 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
At the outset, neither party appeals from the IHO's determination that the parents' claims were ripe or that the district denied the student a FAPE for the 2023-24 school year by failing to implement the student's mandated services or the IHO's award directing the CSE to conduct updated evaluations of the student and reconvene to create an IESP based on the updated evaluations (IHO Decision at pp. 6-7, 9-10). Accordingly, these findings and orders have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
A. Preliminary Matters – Subject Matter Jurisdiction
As a threshold matter, it is necessary to address the issue of subject matter jurisdiction raised by the district in its cross-appeal. The district argues the IHO erred by not granting its motion to dismiss for lack of subject matter jurisdiction (see IHO Decision at p. 4).
Recently in a number of decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512 Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).
Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]). However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]). Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.
Accordingly, the parents would not have a right to due process under federal law; however, the student did not merely have a services plan developed pursuant to federal law, and the parents did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.
Separate from the services plan envisioned under the IDEA, the Education Law in New York has afforded parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment 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]).[8]
Education Law § 3602-c, concerning students who attend nonpublic schools, provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]). It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).
Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities provides that a due process complaint may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a free appropriate public education to the student" (Educ. Law §4404[1][a]; see 20 U.S.C. § 1415[b][6]). State Review Officers have in the past, taking into account the legislative history of Education Law § 3602-c, concluded that the legislature did not intend to eliminate a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[9] In addition, the New York Court of Appeals has explained that students authorized to receive services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.
However, the number of due process cases involving the dual enrollment statute statewide, which were minuscule in number until only a handful of years ago, have now increased to tens of thousands of due process proceedings per year within certain regions of this school district in the last several years. Public agencies are attempting to grapple with how to address this colossal change in circumstances, which is a matter of great significance in terms of State policy. Policy makers have recently attempted to address the issue.
In May 2024, the State Education Department proposed amendments to 8 NYCRR 200.5 "to clarify that parents of students who are parentally placed in nonpublic schools do not have the right under Education Law § 3602-c to file a due process complaint regarding the implementation of services recommended on an IESP" (see "Proposed Amendment of Section 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Due Process Hearings," SED Mem. [May 2024], available athttps://www.regents.nysed.gov/sites/regents/files/ 524p12d2revised.pdf). Ultimately, however, the proposed regulation was not adopted. Instead, in July 2024, the Board of Regents adopted, by emergency rulemaking, an amendment of 8 NYCRR 200.5, which provides that a parent may not file a due process complaint notice in a dispute "over whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services" (8 NYCRR 200.5[i][1]). The amendment to the regulation does not apply to the present circumstance for two reasons. First, the amendment to the regulation applies only to due process complaint notices filed on or after July 16, 2024 (id.).[10] Second, since its adoption, the amendment has been enjoined and suspended in an Order to Show Cause signed October 4, 2024 (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24 [Sup. Ct., Albany County, Oct. 4, 2024]). Specifically, the Order provides that:
pending the hearing and determination of Petitioners' application for a preliminary injunction, the Revised Regulation is hereby stayed and suspended, and Respondents, their agents, servants, employees, officers, attorneys, and all other persons in active concert or participation with them, are temporarily enjoined and restrained from taking any steps to (a) implement the Revised Regulation, or (b) enforce it as against any person or entity
(Order to Show Cause, O'Connor, J.S.C., Agudath Israel of America, No. 909589-24).[11]
Consistent with the district's position that New York law has never granted due process rights for IESP implementation claims or enhanced rates for services and that the preliminary injunction issued by the New York Supreme Court does not change the meaning of § 3602-c, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:
parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services. Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.
("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[12]
However, acknowledging that the question has publicly received new attention from State policymakers as well as at least one court at this juncture and appears to be an evolving situation, given the implementation date set forth in the text of the amendment to the regulation and the issuance of the temporary restraining order suspending application of the regulatory amendment, the amendments to the regulation may not be deemed to apply to the present matter. Further, the position set forth in the guidance document issued in the wake of the emergency regulation, which is now enjoined and suspended, does not convince me that the Education Law may be read to divest IHOs and SROs of jurisdiction over these types of disputes.
Based on the foregoing, the IHO was correct to not grant the district's motion to dismiss based on subject matter jurisdiction.
B. Unilaterally-Obtained Services
Prior to reaching the substance of the parties' arguments, some consideration must be given to the appropriate legal standard to be applied. Here, the district is correct in its argument that the IHO erred by not applying the Burlington/Carter standard in her decision. A review of the IHO's decision shows that the IHO treated the parents' requested relief as request for compensatory education but, nevertheless, that she did address whether the SETSS provided by Alpha for a portion of the 2023-24 school year was appropriate (IHO Decision at pp. 7-9).
In this matter, the student has been parentally placed in a nonpublic school and the parents do not seek tuition reimbursement from the district for the cost of the parental placement. Instead, the parents 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, they unilaterally obtained private services from Alpha 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 parents' request for district funding of privately-obtained services must be assessed under this framework and the IHO erred by not doing as such initially. 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]).[13] 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 v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). 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 Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203-04 [1982]; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
The parents argue on appeal that the SETSS delivered by Alpha were specially designed to meet the student's unique needs because the services were based on the student's March 2020 IESP and because the SETSS provider took great care to understand the student's deficits and struggles. The parents also argue that the SETSS were reasonably calculated to enable the student to receive educational benefits. The district generally argues there was no evidence regarding the appropriateness of the services provided by Alpha.
1. Student's Needs
Regarding the student's needs, to the IHO's point, the March 2020 IESP, developed when the student was in second grade, would not necessarily present an accurate statement of the student's needs three years later leading into the 2023-24 school year (see IHO Decision at p. 10; Parent Ex. B). The March 2020 IESP described that the student struggled with articulation, expressing himself, following multi-step directives, answering questions, and predicting, sequencing, and drawing inferences from pictures, and found it challenging to ask for assistance when needed (id. at p. 1). The IESP further indicated that the student had difficulties with reading and decoding skills, particularly in blending sounds to read words and reading multi-syllabic words, which affected his ability to understand what he read and to read independently (id. at p. 2). The IESP reflected that the student had a limited attention span, which affected his ability to concentrate during group lessons and complete tasks without supervision (id). In the social/emotional realm, the IESP noted that the student was anxious, had trouble maintaining eye contact, did not interact reciprocally with peers, and required encouragement and prompting to engage socially (id.). In addition, the student was noted to have difficulty following authority and rules during play unless supervised (id. at p. 3). The IESP did not identify any physical development concerns (id.).
Subsequent to the March 2020 IESP, there is no indication that the district convened a CSE or conducted any updated evaluations of the student prior to the beginning of the 2023-24 school year. To the extent the IHO weighed the lack of updated information about the student's needs against the parents, this was error insofar as it was not the parent's responsibility to evaluate the student and identify his needs (see A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]).
The hearing record includes a June 2024 SETSS progress report that does set forth a statement of the student's needs, but appears to describe the student as of the end of the 2023-24 school year at issue; therefore, the statement of needs in the June 2024 SETSS progress report is of limited utility in terms of assessing the appropriateness of the parents' decision to unilaterally obtain SETSS for the student for the 2023-24 school year (see Parent Ex. F).[14], [15] With the question of the timing of the information in mind, the student's needs as stated in the June 2024 SETSS progress report will be briefly summarized.
According to the June 2024 progress report, the student had a "speech and language impairment" with language skills that were "significantly poorer than most children at his level" (Parent Ex. F at p. 1). The SETSS provider also indicated that the student was shy, rarely asked questions, and required additional time to process information (id.). Further, the provider reported that the student's delays in "understanding and grasping material" placed him behind his peers socially and academically and impacted his skills in decoding, comprehension, writing, and math (id.). The student was said to struggle with "basic" vocabulary and had difficulty explaining or expressing simple ideas and concepts (id.). Further, the SETSS provider stated that the student had "significant difficulty retelling, explaining, or sequencing events or stories" (id. at p. 2).
Regarding the student's reading skills, the June 2024 SETSS progress report noted that the student exhibited challenges in reading including poor fluency, "characterized by slow, choppy, and inaccurate reading" (Parent Ex. F at p. 2). His delayed processing impacted his ability to understand "simple, below-grade-level texts" (id.). The SETSS provider reported that the student's comprehension skills were "below level" and that the student struggled using details to determine the main idea, combine main ideas from two texts, or identify the theme of myths, fables, and folktales (id.). The SETSS progress report indicated that the student's challenges with "the purpose of a text" or identifying themes "severely limited" his ability to comprehend grade-level reading material (id. at p. 3).
In writing, the June 2024 SETSS progress report noted that, while the student was able to write simple words, his writing process was very slow and he presented with spelling errors (Parent Ex. F at p. 3). The SETSS provider reported that the student was able to produce simple, below grade-level sentences but struggled to write organized paragraphs using descriptive details (id.). Further, the provider indicated that the student had "significant difficulties" with writing; it lacked structure and coherence as the student was able to write a few disjointed sentences, but there was no introduction, body, or conclusion (id.).
Turning to mathematics, the June 2024 SETSS progress report reflected that the student struggled significantly with age-appropriate and grade level math concepts (Parent Ex. F at p. 5). According to the SETSS progress report, the student was unable to accurately compare, add, or subtract fractions (id.). The SETSS provider also stated that the student had difficulty "comprehending the language" and "translating it into mathematical operations" to solve word problems (id.). The SETSS progress report noted that, while the student knew basic addition and subtraction skills, his understanding of multiplication was still developing (id.).
Socially, the SETSS provider described the student in the June 2024 progress report as shy and lacking social awareness (Parent Ex. F at p. 4). The student sometimes appeared "lost or uninterested" when a social opportunity presented itself, such as joining a game or reading a friend's emotions (id.). The SETSS progress report stated that the student had a few friends but tended to prefer to play quietly by himself with toys rather than engage with others (id.).
2. Unilaterally Obtained SETSS from Alpha
With respect to the SETSS provided by Alpha, the evidence presented by the parents included the parents' contract with Alpha, the testimony of the Alpha secretary, and the June 2024 progress report (see Tr. pp. 16-19; Parent Exs. C; D; F). As noted above, the hearing record indicates that the parents entered into a contract with Alpha on May 9, 2024 for the 2023-24 school year for the provision of five periods per week of SETSS in Yiddish (Parent Ex. C at pp. 2-3). According to the testimony of the Alpha secretary, the student did not start receiving SETSS until "sometime in December" (Tr. p. 17). The IHO correctly noted that the testimony of the secretary from Alpha did not offer any information about the substance of the services provided to the student (see IHO Decision at p. 8; Tr. pp. 16-19; Parent Ex. D). Indeed, the Alpha secretary testified that she had not observed any services provided to the student (Tr. p. 18).
Neither the student's SETSS provider nor the parents testified, and the hearing record does not include copies of provider session logs or notes. According to the June 2024 SETSS progress report, the student had a "[m]andate" of five hours per week of SETSS, but the report did not indicate that the provider delivered five hours per week of SETSS (Parent Ex. F at p. 1). There is no evidence in the hearing record regarding Alpha's delivery of services to the student in terms of the frequency, duration, or location of sessions (i.e., at school or in the home; in the classroom or in a separate location) or whether the services were provided individually or in a group.
In terms of supports to address the student's needs, according to the June 2024 SETSS progress report, the student's SETSS provider broke down "all the material to ensure" the student understood it; for example, when learning new vocabulary, the provider used flashcards, interactive games, and visual aids to help the student grasp and retain new words (Parent Ex. F at p. 2). The SETSS provider also indicated that the student participated in activities designed to expand his expressive language skills, such as experiments, games, and books (id.). The provider noted that, during sessions, the student was encouraged to use new words in sentences, describe pictures, and recount stories to build his vocabulary and improve his ability to express himself (id.). For example, to assist the student in explaining an experiment, the provider prompted and guided him through the process of recounting the experiment by asking questions recalling the steps of the experiment (id.). In reading, the SETSS provider stated that he worked "intensively" with the student, "breaking down texts and using text-to-self connections" to help his comprehension (id.). The provider used visual aids and discussions to assist the student relate the material to his own experiences (id.). Turning to the student's writing, the SETSS provider used various tools such as "KWL" charts, diagrams, and sequencing charts to help the student organize his thoughts and ideas (id. at p. 3). The provider indicated that he engaged the student in projects that focused on improving his writing skills, such as using his five senses to describe an object or experience (id.). In math, the provider used "many drills, visuals, incentives, positive encouragement and multi-sensory items to address [the student's] math difficulties" (id. at p. 5).
The June 2024 SETSS progress report noted that the student was "missing out on many aspects of peer interaction due to his slow pace and lack of social awareness" (Parent Ex. F at p. 4). To support the student's social/emotional needs, the SETSS provider encouraged the student to engage in social interactions and demonstrate appropriate social skills (id.).
The June 2024 SETSS progress report included several goals to address the student's needs in expressive and receptive language, reading ,writing, math, and in the social/emotional realm (Parent Ex. F at pp. 6-7). However, it appears that the goals were recommended for the 2024-25 school year and, therefore, do not reflect what skills the provider targeted with the student during the 2023-24 school year (see id.).
The parents in their appeal point to the SETSS provider's general statements that the student made progress or slight progress in the areas of reading, writing, and social-emotional struggles to show that the student was making progress with the SETSS provided. While a relevant factor to be considered in determining whether a unilateral placement is appropriate (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]), it is well settled that a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364).
The June 2024 progress report noted that, in language, by the middle of the year, the student was slightly better at discussing concepts with his provider and he could engage in simple conversations about topics they had covered, albeit with considerable support; toward the end of the school year, the student had begun expressing when he did not understand a concept being taught, which was a "major milestone for him," but still needed "a lot of improvement in this area" (Parent Ex. F at pp. 2, 3). The progress report indicated that the student's abilities remain significantly behind those of his peers (id. at p. 2). Regarding the student's progress in reading, the June 2024 progress report noted the student made slight progress because he had developed an awareness of when he did not fully understand and comprehend the material, rather than pretend to understand (id. at p. 3). For writing, the June 2024 progress report noted that, with targeted interventions, the student made slight progress; he could write fuller paragraphs, however, his writing remained far below grade level, and he continued to require significant support to develop basic writing skills (id. at p. 4). Regarding the student's social/emotional development, the provider noted the student had become more socially aware and recognized the importance of interacting with friends rather than playing alone (id. at pp. 4-5). The provider noted that the student understood the concept of taking turns and needing to share, which were significant milestones for him; and that the student sometimes chose to engage in a class activity where in the past he only played with himself or a friend or two (id. at p. 5). The provider also noted that the student still struggled with more complex social benchmarks appropriate for his age such as initiating conversations, maintaining eye contact, and understanding more nuanced social cues (id.).
Although the June 2024 SETSS progress report identified some interventions the SETSS provider used with the student and evidence of some progress during the 2023-24 school year, as noted above, the hearing record is not developed regarding the frequency, duration, location, or group size of the SETSS delivered or, for that matter, regarding when the provider began delivering services to the student (see Tr. p. 17; Parent Ex. F). Further, 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 his mainstream classroom when he was not receiving special education support (see generally Parent Exs. D; F). As identified above, the SETSS provider, in no more than five hours a week, was attempting to address the student's academic needs in math, reading and writing, his social/emotional needs, as well as some language needs (Parent Ex. F). The hearing record is devoid of evidence regarding the student's schedule or curriculum at the nonpublic school, the student's non-SETSS instruction, and how SETSS would have been connected to the instruction provided by the nonpublic school during the 2023-24 school year. Yet, on several occasions, the June 2024 progress report identified that, due to his deficits, the student was unable to "keep up" in a mainstream classroom and was functioning "far below grade level" in all academic areas (Parent Ex. F at pp. 1-5). For that matter, it is not clear from the hearing record that the student received SETSS at the nonpublic school. While the SETSS teacher provided some description of how the student presented in group activities or with his peers, it is not clear whether this was reported to the SETSS provider or if the provider observed this directly.
Without such information, it is not possible to ascertain whether the student received special education support to enable him to access the general education curriculum or whether the SETSS delivered to him supported his classroom functioning. Given that, by definition, specially designed instruction is the adaptation of instruction to allow a student to access a general education curriculum so that the student can meet the educational standards that apply to all students (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]), under the totality of the circumstances, the evidence in the hearing record is insufficient to demonstrate that the student's program was appropriate to meet his needs.
Moreover, the hearing record is devoid of any evidence that the student received speech-language therapy despite evidence that the student has demonstrable speech-language needs.[16] Although parents need not show that a unilateral placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65), the program as a whole must still be "reasonably calculated to enable the child 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.
Based on the foregoing, given the totality of the circumstances, the evidence in the hearing record supports the IHO's finding, albeit for different reasons, that the parents failed to meet their burden to establish that the unilaterally obtained SETSS were specially designed to meet the student's needs. Consequently, there is no reason to disturb the IHO's determinations.
Regarding the parents' request for a bank of compensatory education for speech-language therapy, where the parents engaged in self-help and unilaterally obtained private services for the student, I find no basis for an award of compensatory education services to make up for gaps in the unilateral programming arranged for by the parents, especially here where the parents entered into a contract with Alpha to deliver services set forth the March 2020 IESP and there is no further development of the record explaining why such services were not provided (see, e.g., Application of the Dep't of Educ., Appeal No. 25-027). There is no other support in the hearing record for an award of compensatory education.
VII. Conclusion
Having found that the IHO possessed subject matter jurisdiction to adjudicate the parents' claims and that the hearing record supports a finding that the parents failed to meet their burden to demonstrate that the unilaterally obtained services were appropriate, the necessary inquiry is at an end and it is unnecessary to address equitable considerations.
I have considered the parties' remaining contentions and find I need not address them in light of my determinations herein
THE APPEAL IS DISMISSED
THE CROSS-APPEAL IS DISMISSED.
Footnotes
[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.
[2] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[3] The March 2020 IESP indicated the SETSS and speech-language therapy would be provided in Yiddish (Parent Ex. B at pp. 8-9).
[4] According to the IHO, the parties received an omnibus standing order setting forth the expectations and deadlines regarding this matter (IHO Decision at p. 3; see IHO Ex. I).
[5] The parents in their request for review state that the student should be awarded "a bank of compensatory hours at a reasonable market rate . . . for speech-language therapy services and counseling services that were not provided by the [district]"; however, it appears that the reference to counseling services is included in error as there is no indication that the district ever recommended counseling for the student, the parent did not seek counseling services for the student during the impartial hearing, and the parent does not include the request for compensatory counseling in their statement of relief sought on appeal . Accordingly, any request for counseling services for the student will not be further discussed.
[6] 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]).
[7] 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.
[8] This provision is separate and distinct from the State's adoption of statutory language effectuating the federal requirement that the district of location "expend a proportionate amount of its federal funds made available under part B of the individuals with disabilities education act for the provision of services to students with disabilities attending such nonpublic schools" (Educ. Law § 3602-c[2-a]).
[9] The district did not seek judicial review of these decisions.
[10] A statutory or regulatory amendment is generally presumed to have prospective application unless there is clear language indicating retroactive intent (see Ratha v. Rubicon Res., LLC, 111 F.4th 946, 963 [9th Cir. 2024]). The presence of a future effective date typically suggests that the amendment is intended to apply prospectively, not retroactively (People v. Galindo, 38 N.Y.3d 199, 203 [2022]). The due process complaint in this matter was filed with the district on July 12, 2024 (Parent Ex. A at p. 1), prior to the July 16, 2024 date set forth in the emergency regulation. Since then, the emergency regulation has lapsed.
[11] On November 1, 2024, Albany County Supreme Court issued a second order clarifying that the temporary restraining order applied to both emergency actions and activities involving permanent adoption of the rule until the petition was decided (Order, O'Connor, J.S.C., Agudath Israel of America, No. 909589-24 [Sup. Ct., Albany County, Nov. 1, 2024]).
[12] Neither the guidance nor the district indicated if this jurisdictional viewpoint was conveyed publicly or only privately to the district, when it was communicated, or to whom. There was no public expression of these points that the undersigned was aware of until policymakers began rulemaking activities in May 2024; however, as the number of allegations began to mount that the district's CSEs had not been convening and services were not being delivered, at that point the district began to respond by making unsuccessful jurisdictional arguments to SROs in the past, which decisions were subject to judicial review but went unchallenged (see e.g., Application of a Student with a Disability, 23-121; Application of a Student with a Disability, 23-069; Application of a Student with a Disability, 23-068). The guidance document is no longer available on the State's website; however, a copy of the August 2024 rate dispute guidance was included as a part of the district's motion to dismiss in this matter (IHO Ex. II at pp. 18-27).
[13] 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 parents obtained from Alpha (Educ. Law § 4404[1][c]).
[14] A review of the appropriateness of unilaterally obtained services is not restricted to only the evidence available to the parent at the time she made the unilateral placement decision insofar as implementation of the programming and services and the student's progress are relevant to the analysis (see Khanimova v. Banks, 2025 WL 722876, at *6 [S.D.N.Y. Mar. 6, 2025], citing C.L., 744 F.3d at 836). Nevertheless, a description of the student's needs as of the end of the school year at issue would tend to be relevant to a review of the student's progress or lack thereof rather than establishing the student's underlying needs that the parent was required to establish were met by the unilaterally obtained services.
[15] Further confusing the matter, the June 2024 progress report listed that the student was in fifth grade during the 2023-24 school year, whereas the Alpha secretary indicated that the student was in sixth grade (compare Parent Ex. F at p. 1, with Tr. p. 18).
[16] Pursuant to the contract between Alpha and the parents, Alpha agreed to "make every effort to implement the recommended services" in the March 2020 IESP for the 2023-24 school year, which included speech-language therapy (Parent Ex. C at p. 1); however, it is undisputed that Alpha only provided SETSS to the student and did not provide the student with speech-language therapy.