STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-030
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 Lindsay R. VanFleet, 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 for funding or reimbursement for the privately-obtained services delivered to their son by Alpha Student Support (Alpha) for the 2023-24 school year. The district cross-appeals from the portion of the IHO's decision which denied the district's motion to dismiss for lack of subject matter jurisdiction. 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 student attended a nonpublic school during the 2020-21 school year (Parent Ex. B at p. 1). A CSE convened on March 4, 2021 and, finding the student eligible for special education services as a student with a speech or language impairment, developed an IESP with a projected implementation date of September 8, 2021 (id.).[1] The CSE recommended that the student receive two 30-minute sessions per week of individual speech-language therapy in Yiddish, and two 30-minute sessions per week of individual occupational therapy (OT) in English (id. at p. 15).
By letter dated September 28, 2023, the parents, through their advocate, informed the CSE that they were unable to locate a provider to deliver the recommended services in the student's March 2021 IESP at the district's standard rate (Dist. Ex. 6). The parents indicated that the district had not notified them of a provider assignment for those services and they notified the CSE that if no such provider was made available, they would seek funding or reimbursement for the services they would obtain from a private provider (id. at p. 1).[2] The parents further indicated that, in the event they were unsuccessful at finding a provider, they reserved the right to seek "make-up services" (id.). The parents also invited the district to provide information regarding any appropriate service providers for the student (id.).
By letter dated October 20, 2023, the district informed the parents that if they had placed the student in a nonpublic school at their own expense and wanted the student to continue to receive special education services, they needed to sign and return the letter indicating this, no later than June 1, 2023 (Dist. Ex. 5). The parent signed the document on October 23, 2023 (id.).
On May 28, 2024, the parents entered into a parent service contract with Alpha, for Alpha to provide speech-language therapy to the student for the 2023-24 school year (spanning from September 1, 2023 to June 30, 2024) at a rate of $250 per hour (Parent Ex. C).[3] The contract indicated that the parents believed they were entitled to receive funding or reimbursement from the district for two 30-minute sessions per week each of speech-language therapy and OT services, that Alpha would "make every effort to implement the recommended services", and that the parent understood Alpha intended to implement speech-language therapy services at a rate of $250 per hour (id. at p. 2).
A. Due Process Complaint Notice
In a due process complaint notice dated July 12, 2024, the parents alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A at p. 1). According to the parents, the district failed to implement the recommended two 30-minute sessions per week each of speech-language therapy and OT services (id. at pp. 1-2).[4] The parents further indicated that they were unable to locate providers at the district's standard rate, and, therefore, they unilaterally secured providers "at an enhanced rate" (id. at p. 2). The parents requested an order for the "direct funding/reimbursement" for the related services mandated in the "aforementioned IESP at an enhanced rate" (id. at p. 2). The parents further reserved the right to seek compensatory education services for any services that were mandated but not provided to the student (id. at pp. 2-3). Additionally, the parents requested a pendency order funding the student's recommended services (id. at p. 2).
B. Impartial Hearing & Impartial Hearing Officer Decision
An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed on August 28, 2024 (IHO Decision at p. 1). At some point prior to the impartial hearing, the IHO issued an undated and unsigned prehearing standing order, in order "to set firm expectations of the Parties to resolve the matter fairly and efficiently" (IHO Ex. I; see Tr. p. 5). The district submitted a motion to dismiss, dated August 30, 2024, alleging that the IHO did not have subject matter jurisdiction to preside over the parents' claims and that the parents' claims were not ripe for adjudication (IHO. Ex. II). By email transmitted on September 3, 2024, the parents opposed the district's motion (IHO Ex. III).
An impartial hearing convened and concluded on September 5, 2024 (Tr. pp. 1-31). During the hearing, the IHO noted that she would address the district's motion in her final decision, but also explained that the hearing was moving forward because she was denying the district's motion to dismiss (Tr. pp. 6-7).The hearing then proceeded and, as part of the parents' closing statement, counsel for the parents indicated that while the parents asserted a failure to implement the student's IESP, the district actually provided OT to the student, through a related service authorization (RSA), for the 2023-24 school year (Tr. p. 26). The parent asserted that the district waived a June 1 defense because it was providing some of the recommended services (Tr. pp. 26-27). In response, the attorney for the district stated he was not aware of any services being provided to the student and counsel for the parents conceded that he did not have evidence to substantiate his allegation (Tr. p. 29).
In a decision dated December 2, 2024, the IHO found that the district did not implement the March 2021 IESP for the 2023-24 school year, but denied the parents' request for relief because the hearing record did not support finding that the parents obtained the services recommended in the IESP for the student and instead showed that the student was receiving special education teacher support services (SETSS) (IHO Decision at pp. 5-9). In her decision, the IHO reiterated that she denied the district's motion to dismiss for lack of subject matter jurisdiction, noting that the due process complaint notice was filed prior to the deadline set in the emergency amendment to State regulations (id. at pp. 3-4). The IHO also denied the district's motion to dismiss for ripeness, as the parents filed the due process complaint notice after the conclusion of the school year at issue, thereby making the claims ripe for adjudication (id. at p. 4). Additionally, the IHO rejected the district's affirmative defense, noting that the district did not raise the allegation that the parents' failed to notify the district of a request for equitable services in accordance with the timeline set forth in the IHO's prehearing standing order (id. at p. 6). The IHO found that it was uncontested that the district failed to provide the student with the services recommended in the March 2021 IESP (id. at pp. 5-8). The IHO further found that the district had the burden of production and persuasion to put forth an appropriate compensatory education remedy, but failed to do so (id. at p. 8). The IHO nonetheless found that the hearing record failed to support a compensatory award for the parents, as the evidence failed to demonstrate that the student was receiving mandated services that met the student's educational needs (id.). The IHO noted that the parents' only witness, a secretary from Alpha, had no substantive knowledge of the services provided to the student, and that the secretary testified by affidavit that the student was receiving SETSS (id.). The IHO found that she was constrained to deny compensatory relief to the parents (id. at pp. 8-9, 11). However, the IHO found that the district was required to evaluate the student and develop an educational program and the hearing record was devoid of evidence that the district had evaluated the student, accordingly, the IHO ordered the CSE to conduct updated evaluations and/or assessments of the student, and to reconvene to create an IESP for the student (id. at pp. 9-11).
IV. Appeal for State-Level Review
The parents appeal, alleging that the IHO erred in denying relief. More specifically, the parents contend, that, despite Alpha's witness testifying incorrectly as to the service provided to the student, the hearing record otherwise showed the student was receiving speech-language therapy during the 2023-24 school year. The parents further contend that they should be granted more "leeway" in demonstrating that the services provided by Alpha were appropriate as they were not challenging the appropriateness of the March 2021 IESP and were implementing services recommended by the district for the student.
In an answer and cross-appeal, the district contends that although the IHO was correct in denying the parents' request for relief, the IHO erred in applying a compensatory education analysis as opposed to the Burlington-Carter analysis. The district further contends that the same facts the IHO used in her compensatory education analysis support finding that the parents failed to meet their burden of proving that the services provided by Alpha were appropriate, and notes the secretary of Alpha provided inaccurate testimony, which the IHO used as a reason for discrediting her testimony. The district contends that the Alpha progress report focused on the student's deficits, rather than progress, and that there were contradictions in the report. The district also contends that there was no evidence that Alpha provided speech-language therapy to the student, as the contract in the hearing record was signed nine-months after services were scheduled to begin, there was no evidence that the parents signed the contract, and the contract did not specify what services were to be provided to the student. The district further contends that equitable considerations warrant a complete denial of relief to the parent, as the rates charged by Alpha were excessive, and the contract in the hearing record was missing essential terms. Finally, the district cross-appeals from the IHO's denial of the district's motion to dismiss for lack of subject matter jurisdiction.
In an answer to the cross-appeal, the parents oppose the district's arguments, and contend that equitable considerations warrant an award of funding for Alpha's services at a rate of $250 per hour. The parents further contend that the IHO has subject matter jurisdiction over their claims and claims similar to theirs.
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]).[5] "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.).[6] 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
1. Subject Matter Jurisdiction
The district argues that there is no federal right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice regarding IESP implementation. Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.
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. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No. 25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; 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, 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]).[7]
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]).
However, the district asserts that neither Education Law § 3602-c nor Education Law § 4404 confer IHOs with jurisdiction to consider enhanced rate claims brought by parents seeking implementation of equitable services.
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).[8] In addition, the New York Court of Appeals has explained that students authorized to received 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]), 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).[9] 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 there is not and has never been a right to bring a due process complaint for implementation of IESP claims or enhanced rate for services, 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.
Thus, in light of the above, I find no basis to disturb the IHO's finding that she retained subject matter jurisdiction over the parents' claims and fail to see the merit in the district's arguments on appeal regarding subject matter jurisdiction.
2. Scope of Review
I note that neither party has appealed from the IHO's determinations that the district failed to offer the student a FAPE for the 2023-24 school year, that the district failed to implement services for the student for the 2023-24 school year, that the district's June 1 affirmative defense was not timely raised, or the IHO's order directing the district to evaluate the student and reconvene the CSE to consider the evaluations. 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 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 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]).[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).
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. 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 IHO erred in the legal standard applied to assess whether the parents were entitled to the relief sought.
C. Unilaterally-Obtained Services
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).
On appeal, the parents disagree with the IHO's finding that the evidence in the hearing record failed to demonstrate that the student received unilaterally-obtained speech-language therapy services that met his special education needs. The parents contend that the Alpha progress report identified the student's struggles and deficits, what the provider had been working on with the student to address those struggles and deficits, and how the student had made progress in light of the services provided.
The district contends that the IHO correctly found that the parents failed to prove the unilaterally-obtained services were appropriate and that the IHO's determinations had overwhelming support in the hearing record. Before I address whether the parents have met their burden in demonstrating that their unilaterally-obtained services were appropriate, a review of the student's needs is in order.
1. Student's Needs
The hearing record includes sparse information regarding the student's needs, and is limited to the March 2021 IESP's present levels of performance, which was written over two years before the start of the school year at issue, and a July 2024 speech-language progress report (see Parent Exs. B; F). There is no information in the hearing record as to what transpired between the March 2021 IESP and the start of the 2023-24 school year.
According to the March 2021 IESP, developed when the student was approximately four and a half years old, a cognitive skills assessment yielded a full scale IQ within the borderline impaired (70-79) range of functioning, with a nonverbal IQ and a verbal IQ considered to be in the low average (80-89) and mildly impaired (55-69) ranges, respectively (Parent Ex. B at pp. 1-2). Administration of the Vineland Adaptive Behavior Scales-3 yielded "Adequate" scores in the areas of daily living skills and motor skills and "Moderately Low" scores in the areas of communication and socialization, with an adaptive behavior composite score in the "Moderately Low" range (id. at p. 3).[14]
Teacher reports included in the March 2021 IESP described the student as shy and withdrawn, and indicated that he attempted to follow rules and class routines, hardly interacted with his peers and engaged in parallel play when he did join them, did not express his needs in class or answer questions, had difficulty following directions and would only do so with many prompts, presented with significant fine motor and sensory motor issues, could not focus or sit still for long, and could not complete arts and crafts activities independently (Parent Ex. B at pp. 3-4). A classroom observation, as reported in the IESP, noted similar behaviors (id.). During testing, the student presented as a "sweet youngster" who joined the evaluator willingly, exhibited age-appropriate curiosity in testing, and cooperated "nicely"; however, it was noted that the student could not articulate and express his thoughts adequately when responding to prompts, and he had trouble following two-step directions (id. at p. 4).
Results of a language assessment, administered in Yiddish, indicated that the student's expressive and receptive language skills were moderately delayed (Parent Ex. B at pp. 6-7). For example, the student had difficulty answering "wh" questions, did not demonstrate understanding of numbered concepts, early spatial concepts, and negatives in sentences or identify basic shapes and letters of the alphabet (id. at p. 6). The student did not express his wants and needs to teachers, answer questions or name pictures verbally, and "used short, choppy utterances" comprised of immature sentence structure without grammatical markers (id. at p. 7). With respect to speech development, the student was observed to have unclear speech due to an interdental lisp, "several phonological processes," and a low vocal volume which "exacerbated his unintelligibility" (id. at p. 6). A cursory examination of the oral peripheral speech mechanism revealed a structurally intact mechanism sufficient for speech and eating purposes (id.). Further clinical observations found that the student presented with a closed mouth posture at rest and controlled oral secretions, and that he demonstrated variation in pitch, vocal quality, and volume, which were judged to be within normal limits (id.). The IESP included reporting that the student was observed to use an appropriate diagonal chewing pattern while eating a pretzel, cover his face with his hands while eating, mouth non-food objects during the evaluation, and drink water from an open cup sequencing sips and swallows without difficulty, indicating mild oral motor and feeding skill delay (id.).
Regarding the student's social development, the March 2021 IESP indicated that the student was initially shy and took time to get comfortable, played nicely with other kids, and liked music and books (Parent Ex. B at p. 8). The parent reported that the student became very frustrated when he was not understood and when he could not express himself, he could get "wild/hyper" (id.). In the area of physical development, the IESP noted that while the student's fine motor skills were "getting better," he presented with fine motor delays as seen in his inability to stack items graduating in size, his poor grip on the crayon, and his inability to copy lines or use scissors effectively (id.). In addition, the student presented with sensory processing delays as seen in behaviors such as having trouble sitting still, touching objects around him during story time, seeking sensory input, and struggling to complete an arts and crafts activity (id. at pp. 8-9). The parents reported that the student was relatively well-adjusted to activities of daily living routines, required minimal assistance in dressing, was independent in washing after meals, and was aware of potentially dangerous situations (id. at p. 9).
Turning to the July 2024 speech-language progress report, the provider reported that the student, who was almost eight years old at that time, presented with articulation deficits and oral motor weakness during connected speech, which included a significant lateral lisp, poor oral motor muscle control (which affected intelligibility and took away from his intended messages), and difficulty in maintaining jaw stability and appropriate lip mobility (Parent Ex. F at pp. 1-2). The progress report added that the student was unable to clear saliva and manipulate necessary muscle groups (id. at p. 2). It was further reported that the student was unable to perform some skills such as increasing the strength of his jaw and tongue to improve speech intelligibility via oral motor exercises, or improve his ability to appropriately move his tongue during speech production (id.).
According to the progress report, the student "exhibit[ed] poor communication skills such as eye contact, varied vocabulary and saying things a different way when his original message [wa]s misunderstood" (Parent Ex. F at p. 1). In addition, the report indicated that the student demonstrated significant delays, presented with expressive and social pragmatic language deficits, and exhibited difficulty with speaking in a loud enough volume for listener comprehension, being aware of how speech distracted listeners from what was being said, and in expressing his emotions consistently (id.). It was also indicated that the student presented as "very shy" and looked down when asked to repeat or expand on something (id.). Regarding social pragmatic skills, the progress report reflected that the student's "[s]ignificant weaknesses" affected his ability to share emotions, ideas, and opinions in a socially appropriate manner, and that he presented with further limitations in an ability to identify the "pros and cons" and/or problems of a specific issue and provide appropriate solutions (id. at p. 2).[15]
2. Specially Designed Instruction
In light of the student's needs discussed above, it is now necessary to examine whether the services provided by Alpha to the student for the 2023-24 school year were appropriate based upon the evidence and testimony in the hearing record.
Here, although the district contends otherwise, there is evidence in the hearing record to support that Alpha was contracted to provide the student with two 30-minute sessions per week of speech-language therapy during the 2023-24 school year (see Parent Ex. C). The parent service contract executed by the parents and Alpha, while signed at the end of the 2023-24 school year, and while, at times, unclear in its language, indicated that Alpha "intend[ed] to provide the following services for the 2023-24 school year at the following rates: . . . Speech Language at a rate of $250 per hour" (id. at p. 2). Additionally, the contract noted that the student was recommended to receive two 30-minute sessions per week of speech-language therapy in Yiddish, and that Alpha would "make every effort to implement the recommended services" (id. at p. 1).
The IHO's determination that the hearing record did not support finding that the student received speech-language therapy during the 2023-24 school year was based on what the parents assert was an error in the affidavit of the secretary at Alpha (see IHO Decision at pp. 8-9). More specifically, the secretary testified that Alpha "provided the Student with [SETSS] for the 2023-2024 school year" (Parent Ex. D at ¶ 2). The IHO specifically noted that the secretary's testimony was not credible based on her lack of knowledge of the student and her testimony that Alpha was providing the student with SETSS (IHO Decision at p. 8). Generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076).
As discussed above, the March 2021 IESP did not include a recommendation for SETSS and the parents contracted with Alpha for implementation of the services recommended in the March 2021 IESP, which included speech-language therapy (see Parent Exs. B; C).[16] Additionally, the July 2024 speech-language progress report indicated that the student received two 30-minute sessions per week of speech-language therapy (Parent Ex. F at p. 1). Accordingly, overall, while the hearing record supports finding that the student received speech-language therapy services, for at least some portion of the 2023-24 school year, it does not include a basis for departing from the IHO's credibility determination and the testimony of the Alpha secretary will not be further discussed.
Regarding the appropriateness of the specially designed instruction provided to the student, the July 2024 speech-language progress report stated that the "[m]odes of intervention utilized" during therapeutic intervention included articulation drills, picture cards, games, books, puzzles, and worksheets (Parent Ex. F at p. 2).
The July 2024 progress report stated that the student made progress and could "pool and swallow excess saliva upon" verbal command and could "label oral motor muscles and muscle groups needed for intelligibility and speech production" (Parent Ex. F at p. 1).[17] According to the report, further improvement was seen in the student's ability to "better deal with frustration and embarrassment due to articulation errors, oral motor muscle weakness, and general communication misunderstandings" (id.). The report stated that the student could "now present with a closed-mouthed posture on command, although he still lack[ed] the self-awareness to do it on his own" (id.). In addition, it was reported that while the student still performed below grade level, he "possesse[d] a better vocabulary in his more comfortable language of Yiddish," did "better in rapid naming tasks in that language," and that he demonstrated age-appropriate skills such as understanding humor and paying attention during the sessions (id.).
While the progress report did include some evidence of progress, a listing of the materials used, and references to "articulation drill," and the types of cuing provided, I find that the hearing record is otherwise sparse with respect to the strategies and interventions used and how the instruction was specially designed to meet student's unique needs (see Parent Exs. A-F; Dist. Exs. 2-3, 5-6). In addition, it is not clear that the July 21, 2024 progress report, developed at the beginning of the 2024-25 extended school year, references the 2023-24 school year at all (see Parent Ex. F). Specifically, the progress report indicated that modeling and verbal, visual, and maximum cues "will also be used to facilitate mastery of skills," and included annual goals targeting increasing mean length of utterance in descriptive and narrative tasks, demonstrating opinions, checking for understanding when reading, recalling and relating prior knowledge, improving awareness of "various speaking-volume," increasing proper tongue placement for /s/ sounds, and demonstrating closed-mouth posture and oral rest when not speaking (id. at pp. 2-3). The language used in both of the above instances implies that they were plans for the future, rather than what was done during the 2023-24 school year, the school year at issue in this matter.
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 constituted specially designed instruction designed to address his unique educational needs. While the parents' counsel indicated during closing arguments that the student received OT from the district during the 2023-24 school year as recommended in the March 2021 IESP, both parties conceded that the hearing record lacked evidence supporting this contention, nor was there evidence describing the OT services the student had allegedly received (see Tr. pp. 26-27; Parent Ex. B at p. 15). However, even if the parents had implemented all of the recommendations in the March 2021 IESP, I note that the IESP was approximately 2.5 years old at the start of the 2023-24 school year, and it is unclear whether the recommendations in the IESP would have still been appropriate for the student years later, especially in light of the student's demonstrated needs.
What's more, as noted by the district during the impartial hearing (Tr. p. 23), there is no information in the hearing record about the student's general education program that the speech-language services were meant to be supporting. Specially designed instruction is defined as "adapting, as appropriate to the needs of an eligible student . . ., the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]). As noted above, the hearing record does not include any evidence of the instruction that the student received while attending the general education nonpublic school. 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 speech-language therapy delivered to him supported his functioning in the classroom. 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, as the program, as a whole, consisted of enrollment at a general education nonpublic school along with the parent's unilaterally-obtained speech-language therapy, and when viewed together, with the idea that the specially designed instruction should be designed to support the student's access to the curriculum, there was insufficient information to support such a finding.
Thus, as the student demonstrated needs that may not have been addressed by speech-language therapy alone, there is no evidence in the hearing record regarding OT services for the student, and there was no evidence or testimony regarding the student's general education program and how the unilaterally-obtained speech-language therapy supported the student's access to that curriculum, the evidence supports the IHO's rejection of the parent's request for relief. Under the totality of the circumstances, the parents failed to meet their burden of proving that the services they obtained privately were appropriate for the student under the Burlington-Carter standard.
VII. Conclusion
Having found that the parents failed to sustain their burden in establishing the appropriateness of the unilaterally-obtained speech-language therapy services for the 2023-24 school year under the Burlington-Carter standard, and that the IHO correctly determined that she had subject matter jurisdiction over the instant matter, the necessary inquiry is at an end.
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 DISMISSED.
Footnotes
[1] 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]).
[2] In notifying the district that the parents would implement the student's IESP, the parents also indicated that the reimbursement for unilaterally-obtained services included "any mandated related services provider together with the [special education teacher support services (SETSS)] provider," (Dist. Ex. 6 at p. 1). However, SETSS was not recommended in the March 2021 IESP (Parent Ex. B at p. 15).
[3] Alpha has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[4] Throughout the parents' due process complaint notice, there are multiple references to an IESP without identifying the specific IESP by date (Parent Ex. A). However, the due process complaint notice identified the services recommended in the referenced IESP (id. at p. 1).
[5] 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]).
[6] 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.
[7] 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]).
[8] The district did not seek judicial review of these decisions.
[9] In this case, the district continues to press the point that parents have no right to file any kind of implementation claim regarding dual enrollment services, regardless of whether there are allegations about rates, which is more in alignment with the text of the proposed rule in May 2024, which was not the rule adopted by the Board of Regents.
[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, the 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, Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068; Application of a Student with a Disability, Appeal No. 23-121). The guidance document is no longer available on the State's website; however, a copy of the August 2024 rate dispute guidance is included in the administrative hearing record as an attachment to the district's motion to dismiss.
[13] 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 speech-language therapy (Educ. Law § 4404[1][c]).
[14] The hearing record does not identify the dates of the reported testing and does not include any evaluation reports for the reported testing results and observations.
[15] Much of the above information from the July 2024 speech-language progress report was listed under the heading "Present Level of Functioning," and the report included a brief description of the student's progress, therefore, it is unclear the extent of the student's needs at the beginning of the 2023-24 school year (see Parent Ex. F at p. 1).
[16] Interestingly, the parents' 10-day notice, dated September 28, 2023, also indicated that the parents would be seeking reimbursement for SETSS (Dist. Ex. 6 at p. 1).
[17] While I note 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), it is well settled that a finding of progress is, nevertheless, 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]).