STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-026
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 Toni L. Mincieli, 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 to be reimbursed by respondent (the district) for their son's private services delivered by Alpha Student Support (Alpha) for the 2023-24 school year. The district cross-appeals several adverse determinations by the IHO. The appeal must be dismissed. The cross-appeal must be sustained in part.
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
A CSE convened on September 20, 2017 and, finding the student to be eligible for special education as a student with a learning disability, developed an IESP to be implemented beginning on September 27, 2017 (Parent Ex. B at pp. 1, 6).[1] The CSE recommended that the student receive five periods per week of special education teacher support services (SETSS) in a group in Yiddish (id. at p. 6).[2] According to the IESP, the student was parentally placed in a nonpublic school at that time (id. at p. 8).
The CSE also convened on December 8, 2021 and, continuing to find the student eligible for special education as a student with a learning disability, developed an IESP with a projected implementation date of December 22, 2021 (Dist. Ex. 3 at p. 1). The CSE again recommended that the student receive five periods per week of SETSS in Yiddish (id. at p. 4). It was also noted that the student was parentally placed in a nonpublic school (id. at p. 7).
On September 1, 2023, the parents entered into a contract with Alpha for the provision of SETSS to the student for the 2023-24 school year (Parent Ex. C). The contract indicated that the parents "confirm[ed] their understanding that [the student was] entitled to receive funding or reimbursement from the [district]" for five periods of SETSS, and that the parent would retain counsel and file a due process complaint notice in "attempts to obtain funding" for those services (id.). The parents confirmed that they would be liable to pay the full amount for all recommended services delivered by Alpha if the parents were unable to secure funding from the district "or elsewhere" (id. at p. 2). The contract listed that "SETSS/SEITS" would be provided at a rate of $195 per hour (id.).[3]
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 (Parent Ex. A). The parents alleged that the CSE recommended that the student continue the services in the student's September 2017 IESP, that included five periods of SETSS per week, but that the district failed to implement the recommended services (Parent Ex. A at pp. 1-2).[4] The parents alleged that they could not obtain a SETSS provider at the district's standard rate and were therefore "unilaterally secured their own private providers" at an enhanced rate, and as relief the parents sought funding or reimbursement for the privately obtained services (id. at p. 2). At the same time, the parents stated that they "reserve[d] their right" to seek compensatory education services for any unimplemented services for the student (id.). In a due process response, the district indicated that it intended to raise, among other things, a defense of lack of subject matter jurisdiction and included a prior written notice related to the December 2021 IESP (Due Process Response dated 8/23/24).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO appointed by the Office of Administrative Trials and Hearings (OATH) on September 5, 2024 (Tr. pp. 1-27). Initially, the IHO discussed a motion to dismiss by the district that was based upon a jurisdictional objection (Tr. p. 5). The IHO orally denied the motion, finding that she had subject matter jurisdiction to preside over the impartial hearing (Tr. pp. 5-6; see IHO Decision at p. 4).[5]
In a decision dated December 2, 2024, the IHO found that the district failed to meet its burden of establishing that a FAPE was offered to the student for the 2023-24 school year (IHO Decision at p. 6). The IHO further found that the evidence in the hearing record failed to support a compensatory award, as the evidence failed to demonstrate that the student was receiving the mandated services that the student needed (id. at pp. 7-8). The IHO found that the parents' only witness, Alpha's secretary, had no substantive knowledge of the services provided to the student, and the progress report provided by the parents was vague, and did not explain the SETSS provider's methodologies, how the program was tailored to meet the student's educational needs, and what, if any, progress the student made (id. at p. 8). Therefore, the IHO denied the parents' requests for relief (id. at pp. 8, 10). The IHO further noted that the hearing record lacked evidence that the district had developed an IESP for the student since December 2021, and therefore ordered the CSE to conduct updated evaluations and/or assessments within 30 days of the date of the decision, and ordered the CSE to reconvene to develop an IESP for the student within 15 days of the completion of those updated evaluations/assessments (id. at pp. 9-10). The IHO further denied the district's motion to dismiss for an alleged lack of subject matter jurisdiction and unripe claims by the parents (id. at pp. 3-4).
IV. Appeal for State-Level Review
The parents appeal, alleging that the IHO erred in denying relief. The parents allege that there is "no dispute" that the parent was seeking retroactive funding for the unilaterally obtained SETSS, but that this claim should not be held to the same standard as a tuition reimbursement claim. The parents contend that the unilaterally-obtained SETSS were tailored to the student's educational needs, that the progress report in the hearing record demonstrated the student's deficits and how the program addressed those deficits, and that the SETSS provided by Alpha were appropriate. The parents seek direct funding for five periods of SETSS per week at the Alpha's contract rate of $195 per hour.
In an answer and cross appeal, the district contends that the IHO correctly denied the parents' requested relief. However, the district alleges the IHO erred by applying a compensatory education analysis instead of a Burlington/Carter analysis. The district contends that, nonetheless, the IHO properly concluded that the services provided by Alpha were not appropriate due to a lack of sufficient evidence. Specifically, the district argues that the progress report entered into evidence by the parents was inadequate. The district also contends that equitable considerations do not favor the parents, as the rates charged by Alpha were excessive. Additionally, the district asserts that the IHO erred by excluding a study conducted by the American Institutes for Research (AIR report) and NY Mean Wage Excerpt by the United States Bureau of Labor Statistics from evidence, as the documents were relevant to determining whether the contracted rate for the SETSS provided by Alpha to the student were excessive and offers them as additional evidence. Finally, the district concedes that it does not dispute that it failed to implement the student's recommended SETSS for the 2023-24 school year.
In an answer to the district's cross-appeal, the parents oppose the district's contentions regarding a denial of relief, and assert that the IHO has broad discretion to exclude evidence from the record. The parents contend that the rate is not excessive. The parents also argue that "what goes into the $195/hr should not be relevant in an analysis as to what is a 'reasonable rate,'" but that a "rate is a reasonable market rate if it is in accordance with what similarly situated providers in the area are also charging." The parents further assert that the district's market rate demonstrates that providers are earning well over $125 an hour.
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 [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[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
A. Preliminary Matters
Initially, neither party has appealed from the IHO's determination that the district failed to implement the student's recommended services for the 2023-24 school year, or from the IHO's denial of the district's motion to dismiss. Accordingly, these findings have become final and binding on the parties and will not be further discussed (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]).
B. Legal Standard
The district contends that the IHO erred in reviewing the parents' requests for relief under a compensatory education approach rather than the Burlington/Carter framework.
In this matter, the student has been parentally placed in a nonpublic school and the parents did not seek tuition reimbursement from the district for the student's attendance. 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 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 parents are 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. 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]).[8] 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).
Although use of the Burlington/Carter framework, for a matter involving an IESP developed pursuant to State Education Law § 3602-c rather than an IEP developed pursuant to the IDEA, is not based on direct authority from the courts, there is also no authority as to what other, more analogous framework might be appropriate when a parent privately obtains special education services that a school district failed to provide and then retroactively seeks to recover the costs of such services from the school district. I also note that IHOs have not approached the question with consistency. While the IHO may disagree with the use of the Burlington/Carter standard, I find the alternative approaches adopted by some IHOs insufficient to address the factual circumstances in these cases. I address some of the reasons for this below.
Some IHOs, when using a different framework of analysis, have done so because they have categorized the matter as being an implementation dispute, rather than an IEP design dispute, but I find that the distinction is of little consequence when a parent has unilaterally obtained services from private sources without the consent of school district officials. A district's delivery of a placement and/or services must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419-20 [2d Cir. 2009]; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014]). Thus, a deficient IEP is not the only mechanism for concluding that a school district has failed to provide appropriate programming to a student and thereby also failed to provide a FAPE. Such a finding may also be premised upon a standard described by the courts as a "material deviation" or a "material failure" to deliver the services called for by the public programming (see L.J.B. v. N. Rockland Cent. Sch. Dist., 660 F. Supp. 3d 235, 263 [S.D.N.Y. 2023]; Y.F. v. New York City Dep't of Educ., 2015 WL 4622500, at *6 [S.D.N.Y. July 31, 2015], aff'd, 659 Fed. App'x 3 [2d Cir. Aug. 24, 2016]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. Mar. 23, 2010] [deviation from IEP was not material failure]; R.C. v. Byram Hills Sch. Dist., 906 F. Supp. 2d 256, 273 [S.D.N.Y. 2012]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011] ["[E]ven where a district fails to adhere strictly to an IEP, courts must consider whether the deviations constitute a material failure to implement the IEP and therefore deny the student a FAPE"]). The courts do not employ a different framework in reimbursement cases because the parents raise a "material failure" to implement argument rather than a program design argument, and instead they employ the Burlington/Carter approach (R.C., 906 F. Supp. 2d at 273; A.L., 812 F. Supp. 2d at 501; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 232 [D. Conn. 2008], aff'd, 370 Fed. App'x 202).
The most defining factor that has arisen in these matters for determining the appropriate category of relief and the standards attendant thereto is whether the parent engaged in self-help and obtained relief contemporaneous with the violation and then sought redress through a due process proceeding (i.e., the Burlington/Carter scenario) or whether the relief is prospective in nature with the purpose to remedy a past harm (i.e., compensatory education). In the former, the parent has already made decisions unilaterally, without input from the district, and, therefore, must bear a burden of proof regarding those services. For prospective compensatory education ordered to remedy past harms, relief may be crafted to be delivered in the future with protections to avoid abuse and to promote appropriate delivery of services. While some courts have fashioned compensatory education to include reimbursement or direct payment for educational expenses incurred in the past, those cases are in jurisdictions that place the burden of proof on all issues at the hearing on the party seeking relief, namely the parent, making the distinction between the different types of relief perhaps less consequential (Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App'x 874, 878-79 [7th Cir. 2015]; Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 [D. Minn. 2022]). In contrast, under State law in this jurisdiction, the burden of proof has been placed 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 Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F., 746 F.3d at 76; R.E., 694 F.3d at 184-85). Treating the requested relief as compensatory education is problematic in that it places the burden of production and persuasion on the district to establish appropriate relief when the parent has already unilaterally chosen the provider, obtained the services, and is the party in whose custody and control the evidence necessary to establish appropriateness resides.
Thus, in light of the above, I find that the district is correct that the IHO erred in the legal standard applied to assess whether the parent was entitled to the relief sought and should have applied a Burlington-Carter analysis to the unilaterally-obtained SETSS at issue here.
C. Unilaterally-Obtained SETSS
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 Student Support for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof. Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).
The parent's request for district funding of privately-obtained services must be assessed under this framework. 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]).[9] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1. Student's Needs
To address the appropriateness of the unilaterally-obtained services, it is necessary to describe the student's needs, which are not in dispute, and thereafter, to review the instruction delivered to the student to determine if the methods and strategies used constituted specially designed instruction that would be reimbursable to the parent under a Burlington-Carter framework.
The December 2021 IESP reflected that the student continued to have academic delays (Dist. Ex. 3 at p. 1). Reading comprehension was an area of concern with regard to inferential questions and making predictions (id.). According to the IESP, the student's math and writing skills were very weak, and English skills in general were very delayed (id.). The IESP did not reflect needs with regard to social development, as the student got along well with his peers, was respectful, and followed directions (id.). Similarly, with regard to physical development, the student's gross motor and fine motor coordination were described as age and grade appropriate (id. at p. 2). The IESP included a list of supports and strategies to address the student's management needs that included providing "sentence repetition, combining and completion activities to help build fluency," visual cues and scaffolding, simplification of directions, teacher modeling, directions repeated/reworded in simple language, manipulatives, and teacher check-in (id.). The IESP indicated the student's academic delays warranted intervention in order for the student to participate in the general education curriculum (id.).
Review of the student's June 2024 Alpha progress report revealed that the student continued to "present[] with significant academic challenges which hinder[ed] his ability to see meaningful academic gains" (Parent Ex. F at p. 1). The progress report indicated that the student was "struggling in all academic areas placing him greatly behind grade level" (id.). According to the progress report, the student "require[d] intervention to continue building on his progress so that all academic domains [would] see improvement" (id.). The SETSS provider reported that when the student "continue[d] to see progress, his self-esteem and confidence [would] grow as well" (id.). With regard to classroom functioning, the student often required reminders and prompting to complete his work, exhibited weaknesses in executive functioning, and struggled to follow multistep directions, multitask, manage his time, and change focus during transitions (id. at p. 6). Additionally, the progress report indicated that the student did "not always figure out solutions to problems independently" (id.).
2. SETSS from Alpha
The secretary at Alpha testified that two Alpha providers each delivered SETSS to the student on a weekly basis during the 2023-24 school year (12th grade) (Tr. pp. 14-17, 19; Parent Ex. D ¶¶ 1, 2). According to the secretary, all providers at Alpha created progress reports; however, review of the student's June 2024 Alpha progress report reflects one provider's name, and the hearing record does not include a progress report from the student's other SETSS provider or indicate that both providers contributed to the June 2025 report (see Tr. pp. 14-19; Parent Exs. A-F).
The June 2024 progress report noted that generally, in a setting with minimal distractions, the student benefited from repetition, review, active reading strategies such as highlighting and color-coding parts of words, and pre-teaching concepts that would be taught in class so that he could attempt to follow along independently, repetition, and positive reinforcement (Parent Ex. F at pp. 1-3). In the area of reading, the progress report reflected that the student's decoding and fluency skills were "greatly lacking," and he made "mistakes with more complex, long or new words and skip[ped] over vowel sounds when reading" (id. at p. 1). According to the progress report, "[i]t seem[ed]" that the student's fluency skills were on a fourth-grade level, and because his decoding skills were still lacking, his reading expression was lacking, as well (id. at p. 2). Additionally, due to his poor decoding and fluency skills, the student "still tend[ed] to mispronounce many words" (id.). The progress report reflected "[c]urrent reading goals" for the student to improve his ability to decode multisyllabic words, "have 400 sight words in his word bank," read at a sixth grade level "pace," read a five paragraph passage, and read new and complex words with proper pronunciation (id.).
The June 2024 progress report indicated the student's greatest area of challenge was his comprehension skills (id.). The student was working with his provider on delving deeper into text and drawing inferences with much provider intervention (id. at p. 3). According to the progress report, the student had begun to use context clues to come to logical conclusions and self-correct by using "textual aids" (id.). The student's provider was also helping him gather information from a text independently, so he would not be so dependent on the provider (id.). To address the student's difficulties with reading comprehension, the provider gave the student below-level text and guidance on how to slow down when reading so that he could understand the text, and not only decode it (id. at p. 3). The student's "[c]urrent comprehension goals" reflected in the progress report included for the student to participate in a discussion regarding a story or informational text, state the setting of a story, discuss the personality characteristics of characters, discuss the plot of a story and incorporate conflict and the resolution, and discuss the author's purpose for writing the story (id. at pp. 3-4).
With regard to writing, the June 2024 progress report indicated the student's skills were "very poor" and at the early first grade level (Parent Ex. F at p. 5). Additionally, most of his spelling was still at the imaginative stage (id.). According to the progress report, writing CVCe, CVC words, and words with vowel combinations and exhibiting more advanced spelling skills were not part of the student's then-current capabilities (id.). The SETSS provider reported that although the student was able to write simple sentences, he generally did not capitalize or punctuate the sentence unless prompted (id.). He did not have comma skills, and writing paragraphs or essays was beyond his grasp (id.). The progress report further noted that although the student had many writing challenges, he had the ability to write in print; however, he did not have "cursive knowledge or skill" (id.). The SETSS provider reported that the student's writing deficits made "him unable to complete assigned classwork" and "fall behind his peers in a more profound way" (id.). To address the student's writing/spelling difficulties, the SETSS provider gave him flash cards, used a multisensory approach, and provided frequent review to enhance his spelling skills, "simplification, chunking down, graphic organizers, and positive encouragement" (id.). The progress report identified "[c]urrent" goals to improve the student's ability to spell a variety of words, write a paragraph, "properly" punctuate his writing, and write in cursive (id. at p. 6).
The June 2024 progress report reflected that math was the student's "relatively strong domain," and that he was able to add and subtract mixed numbers with common and uncommon denominators, solve long division problems, multiply three-digit by three-digit numbers with minimal assistance, and solve decimals (Parent Ex. F at p. 4). However, according to the progress report, the student could not convert a decimal to a fraction, or vice versa (id.). He also struggled with word problems, often requiring them to be simplified (id.). The student required provider intervention to support him with his math deficits and his "[c]urrent" goals included writing seven to nine digit numbers in word form, and completing problems involving long division, fractions, decimals, percentages, positive and negative integers, and simple word problems (id. at pp. 4-5).
With regard to the student's social/emotional and classroom functioning, the SETSS progress report indicated that although the student may have understood verbal instructions and directions, he often required reminders and prompting to complete his work (Parent Ex. F at p. 6). He displayed weaknesses in executive functioning, and struggled to follow multi-step directions, multitask, manage his time, and change focus during transitioning (id.). Additionally, the student did not always figure out solutions to problems independently (id.). Despite this, the student was noted to be well-behaved and self-aware (id. at pp. 6-7). He had friends and was "at the pace" of his peers, and he enjoyed interacting with his peers since it allowed him to feel good about himself, as he did not have positive scholastic experiences due to his many deficits (id. at p. 7). According to the progress report, the student's academic delays negatively affected his emotional "performance" and the SETSS provider recommended continuing with five hours of SETSS per week (id.).
The foregoing evidence in the hearing record does not support a finding that the parents met their burden under Burlington-Carter to prove that the services they unilaterally obtained for the student were appropriate to address his unique educational needs. The hearing record does not include any evidence of the instruction that the student received while attending the general education nonpublic school. The scant references to the student's general education classroom and coursework in the progress report consist of statements that the student in " a setting of minimal distractions . . . benefits from repetition, review, active reading strategies such as highlighting and color-coding parts of words, and pre-teaching concepts that will be taught in class so that he can attempt to follow along independently, but that his writing deficits rendered him "unable to complete assigned classwork" and he "ha[d] difficulties with classroom functioning" (Parent Ex. F at pp. 1, 5, 7) Additionally, the SETSS progress report did not indicate whether instruction was conducted in Yiddish, English, or bilingually, and how this interacted with the student's general education instruction (see generally Parent Ex. F). Thus, it is not possible to ascertain whether the student received any special education support in the classroom to enable him to access the general education curriculum or how the SETSS delivered to him supported his functioning in the classroom, even if provided in a separate location in accordance with the IESP developed for him by the district. Accordingly, the hearing record lacks information concerning the student's general education school in terms of the instruction and curriculum provided, which necessitates assessing the unilaterally-obtained services in isolation from the student's general education private placement. 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, under the totality of the circumstances, the evidence in the hearing record is insufficient to demonstrate that the student's program was appropriate. Taking the program as a whole, it consisted of the student's enrollment at a general education nonpublic school along with the parents' unilaterally obtained SETSS, and when viewed together, with the idea that the specially designed instruction should support the student's access to the curriculum, there was insufficient information to support such a finding(see Application of a Student with a Disability, Appeal No. 25-029; Application of a Student with a Disability, Appeal No. 24- 461; Application of a Student with a Disability, Appeal No. 24-472; Application of a Student with a Disability, Appeal No. 24-478; Application of a Student with a Disability, 24-548; Application of a Student with a Disability, 24-593). While the parents argue that the SETSS progress report identified supports and strategies utilized by the provider and demonstrated some degree of progress by the student over the course of the school year in various educational areas of need identified by the provider, such evidence nonetheless remains confined to the student's performance in his SETSS sessions. Absent evidence of how his SETSS instruction supported his classroom performance, particularly where the student was in a twelfth-grade classroom while functioning at an elementary school grade level in many of his academic skills and abilities, the hearing record does not support a finding that Alpha provided him with appropriate specially designed instruction to meet his unique needs.
Additionally, in reviewing the student's academic levels and information regarding whether the student was making progress, and to what extent, it may be advisable for the CSE to reconvene, to the extent they have not already, to consider whether this student requires a more intensive programming than the five hours of SETSS that were recommended in both the September 2017 and December 2021 IESPs.
VII. Conclusion
As I have found, using the correct legal standard, that the parents failed to meet their burden in establishing that the SETSS provided by Alpha to the student for the 2023-24 school year were appropriate, I find no basis to disturb the IHO's order denying the parents' requests for relief, despite the IHO having applied the incorrect legal standard. The district's cross-appeal will be sustained only to the extent of their contentions related to the IHO using the incorrect legal standard in reviewing the parents' requests for relief.
I have considered the parties' remaining contentions and find the necessary inquiry at an end.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
Footnotes
[1] The student's eligibility for special education as a student with a learning disability is not in dispute (see 34 CFR 300.8[c][10]; 8 NYCRR 200.1[zz][6]).
[2] SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district.
[3] At times in the hearing record, the special education services provided appear to be interchangeably referred to either broadly as "special education services," special education itinerant teacher (SEIT) services, or SETSS.
[4] It is unclear why the parents based their allegations off of the recommendations in the student's September 2017 IESP rather than the December 2021 IESP. In any event, the CSE recommended the same type and frequency of SETSS in both IESPs, and the IHO based her analysis off of the December 2021 IESP (IHO Decision at p. 4; compare Parent Ex. A at p. 6 with Dist. Ex. 2 at p. 4). The parents also claim in their request for review that the parents "sought to unilaterally implement the SETSS mandated under the child's IESP dated December 8, 2021" (Req. for Rev. at p. 4).
[5] The three IHO exhibits described in the list appended to her decision were not submitted to the Office of State Review (IHO Decision at p.12). The exhibits were described as a standing order, the district's motion to dismiss, and the parents' response thereto. According to an attorney with OATH, the exhibits "were not uploaded and are not accessible," the IHO is no longer with OATH, thereby preventing the district from obtaining these documents. The district is reminded that it carries the responsibility to file a complete copy of the hearing record with the Office of State Review and that failure to do so could result in remedial actions such as striking an answer, dismissing a cross-appeal, or making a finding that the district violated the parent's right to due process (8 NYCRR 279.9[a]-[b]). The district is also reminded that its responsibility to maintain a record of its submissions such as its own motion papers, etc. is one that is independent from OATH for this very reason. School districts are the custodian of students' educational records, not IHOs. An IHO is separately required to certify what evidence they received and examined and relied on in reaching a determination, but that responsibility does not absolve the district of its independent maintenance of student records and certification responsibilities. I decline to penalize the district in this case as no party is challenging the IHO's order or her ruling on jurisdictional grounds, and some effort was made to explain the problem.
[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] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case was the unilaterally obtained SETSS (Educ. Law § 4404[1][c]).
[9] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the special education that the parent obtained from Alpha Student Support (Educ. Law § 4404[1][c]).