Application of a Student with a Disability

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-033

Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education

Appearances:

Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, 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.  Petitioner (the parent) appeals from the decision of an impartial hearing officer (IHO) which denied, in part, her request that respondent (the district) fund the costs of her son's private services delivered by AIM Educational Support Services (AIM) for the 2023-24 school year.  The district cross-appeals asserting a lack of subject matter jurisdiction.  The appeal must be sustained in part. 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

A Committee on Preschool Special Education (CPSE) convened on March 4, 2020, found the student eligible for special education as a preschool student with a disability, and developed an individualized education program (IEP) for the student with an implementation date of March 16, 2020 (Parent Ex. B at pp. 1, 14).  The CPSE recommended that the student receive four one-hour sessions per week of direct individual special education itinerant teacher (SEIT) services in Yiddish, to be delivered in an early childhood program selected by the parent, two 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of individual occupational therapy (OT) (id. at p. 14).  The IESP noted that, at the time, the student was attending a nonpublic school (id. at p. 5).

The CSE convened on March 22, 2021 and finding the student was eligible for special education services as a student with a speech or language impairment, developed an IESP for the student with an implementation date of September 7, 2021 (Parent Ex. C at p. 1).^[1]  The March 2021 CSE recommended that the student receive three periods per week of direct group special education teacher support services (SETSS) in Yiddish delivered in a separate location,  two 30-minute sessions per week of individual speech-language therapy in Yiddish, and two 30-minute sessions per week of individual OT (id. at p. 9).^[2]  The March 22, 2021 IESP indicated that the student was parentally placed in a nonpublic school (id. at p. 11). 

The CSE reconvened on September 15, 2022, determined that the student was eligible for special education as a student with a speech or language impairment, and developed an IESP for the student with an implementation date of September 15, 2022 (Dist. Ex. 2).  The September 2022 CSE continued the same program recommendations contained in the March 2021 IESP (compare Dist. Ex. 2 at p. 9, with Parent Ex. C at p. 9).  According to the IESP, the student was parentally placed in a nonpublic school (Dist. Ex. 2 at p. 12). 

The parent, through her attorney, sent a letter, dated May 31, 2023, to the CSE chairperson via email, in which the parent indicated her intent to place the student in a nonpublic school and requested that the district provide the student with all necessary special education and related services for the 2023-24 school year (Parent Ex. E).^[3]

The parent, through her attorney, sent a letter to the district CSE chairperson, dated September 5, 2023, which indicated that the parent disagreed with the March 2021 IESP and thought the student required either a continuation of his SEIT program "or an appropriate placement in a hybrid special education/general education program" (Parent Ex. D at p. 2). The letter further notified the district that the parent intended to place the student at the nonpublic school with the prior recommended SEIT services and related services and that she would seek reimbursement or direct payment from the district for the cost of those services (id. at p. 3).

On September 19, 2023, the parent electronically signed a contract with AIM for the 2023-24 school year (Parent Ex. F at pp. 2-5).  According to the contract the parent requested that AIM provide the student with four hours per week of individual SEIT services in Yiddish, two 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of individual OT, "to whatever extent possible for the 2023-24 school year" (Parent  Ex. F at p. 1).^[4],[5]  The contract further indicated that AIM agreed to "make every effort to implement the recommended services mentioned-above with suitable qualified providers" (id. at p. 2).  However, the contract included an additional provision, which expressed that the parent understood that AIM intended to provide "SETSS/SEIT at a rate of $218 per hour" (id.).  The contract did not include a rate for OT or speech-language therapy services or specifically mention these services as something AIM intended to provide for the student (id.).

In a prior written notice dated January 10, 2024, the district informed the parent that it wanted to conduct a reevaluation of the student to determine whether he remained eligible for special education services and, if so, what services he required (Dist. Ex. 5 at p. 1).  The district advised that it had reviewed the student's existing assessments and determined that a psychoeducational assessment was required (id.)  The notice included a consent to the proposed reevaluation to be signed by the parent and advised that the parent could submit supplemental evaluation information to be considered by the district (id. at pp. 2, 4).

The district conducted a psychoeducational evaluation of the student on March 12, 2024 (Dist. Ex. 6).

The CSE reconvened on May 6, 2024, determined that the student was eligible for special education services as a student with a speech or language impairment and developed an IESP for the student with an implementation date of May 20, 2024 (Dist. Ex. 7 at p. 1).  The May 2024 CSE continued the September 2022 CSE recommendation of three periods per week of direct group SETSS in Yiddish delivered in a separate location, but changed the recommended OT and speech-language therapy services from individual to group (id. at p. 11).

A. Due Process Complaint Notice

By due process complaint notice dated July 12, 2024, the parent, through her attorney, alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A at pp. 1-3). According to the due process complaint notice, the student attended a religious, nonpublic school (id. at p. 1).  The parent asserted that the student's pendency services should be based on the special education programming listed in the student's March 4, 2020 IEP, which the parent asserted constituted the student's "last agreed upon program" (id. at p. 2).

The parent asserted that the CSE's reduction from four periods per week of individual SEIT services to three periods per week of group SETSS, in the March 22, 2021 IESP, was inappropriate for the student (Parent Ex. A at pp. 2-3).  The parent contended that the student was "making progress" with SEIT services and required "either a continuation of the broader SEIT program or an appropriate placement in a "hybrid special education/general education program" to address the student's needs in a mainstream environment (id. at p. 3).  Based on the district's alleged failure to recommend a "proper placement" for the student, the parent advised that she was "left with no choice but to implement the SEIT program independently and seek reimbursement" from the district (id.).  As relief, the parent requested an order directing the district to fund the costs of the student's services listed in the March 2020 IEP for the 2023-24 school year at the "provider's contracted rate" (id. at p. 4).^[6]

B. Impartial Hearing Officer Decision

On September 5, 2024, the parties proceeded to an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH) which concluded the same day (see Tr. pp. 1-58).

In a decision dated December 5, 2024, the IHO found that the district denied the student a FAPE by failing to "implement" the March 22, 2021 IESP for the 2023-24 school year and that the parent located a provider to implement the services at the provider's stated rate (IHO Decision at pp. 1-2).  The IHO found that AIM's rate of $218 per hour was excessive and reduced the rate to $175 per hour based on evidence in the hearing record that instructors were paid "between $90-110 directly" and that it was unnecessary for the district to pay AIM over $100 more than the instructors' rates (id. at pp. 2-3).  The IHO found that AIM should be paid for SETSS, speech-language therapy and OT according to the March 2021 IEP," but the IHO also made a determination that the hearing record was "unclear as to what related services [the student] actually received during the school year at issue" (id. at p. 3).  In addition, the IHO stated that the "[p]arent's argument that the March 4, 2020 CPSE IEP [was] the last agreed upon mandate [was] not persuasive." (id.).

As relief, the IHO ordered the district to fund three periods per week of SETSS in Yiddish at a rate of up to $175 per hour, as well as two 30-minute sessions per week of individual speech-language therapy in Yiddish and two 30-minute sessions per week of individual OT in English (IHO Decision at p. 4).  The IHO ordered that the awarded speech-language therapy and OT be delivered by a provider of the parent's choosing at a "reasonable market rate" set by the district's implementation unit (id.).  The IHO further ordered that any services not provided by September 1, 2025 would "expire" and directed the district to "convene a CSE" within 30 days of the decision to develop an IEP or IESP for the student (id.).  In addition, the IHO directed the district to continue to provide any related services it was currently providing (id.).

The IHO attached a pendency determination to her final decision, which was also dated December 5, 2024 (IHO Decision at p. 5).  In the pendency decision, the IHO found that the student's pendency program was based on the March 22, 2021 IESP and the IHO directed that the pendency program consisted of three periods per week of SETSS in Yiddish, two 30-minute sessions of individual speech-language therapy in Yiddish, and two 30-minute sessions of individual OT in English, with all services provided on a 10-month basis (id.).

IV. Appeal for State-Level Review

The parent appeals. The parent contends that the IHO erred in treating this matter as a failure to implement the March 2021 IESP.  According to the parent, the IHO overlooked the fact that the parent disputed the March 2021 IESP recommendations, which reduced the academic support the student was receiving from four periods per week to three periods per week and directed that they be provided in a group setting instead of individually.  The parent further asserts that the IHO improperly reduced the rate for SETSS because neither the district nor the IHO introduced evidence to rebut the contracted for rate.  In addition, the parent argues that the record contained no basis on which the IHO could have made a finding of excessiveness or justified the rate he ordered, which could not be based upon his "unsubstantiated whim." The parent asserts that the AIR report, submitted by the district into the hearing record, is irrelevant as the district presented no witnesses to explain how it specifically relates to this matter.  The parent further contends that the IHO erred in finding that the student's program under pendency was based on the student's March 2021 IESP as the parent did not agree with the program recommended in that IESP.    The parent submits that the last agreed on placement included four hours per week of SEIT services.  As relief, the parent requests that the IHO decision be modified to include funding for four periods of "academic support services" per week at the contracted rate of $218 per hour.

In an answer and cross-appeal, the district agrees that the IHO erred in basing the student's pendency program on the March 2021 IESP, as the parent did not agree with its recommendations; however, the district asserts that the parent is precluded from seeking funding for services based on the March 2020 CPSE IEP because it was the district's responsibility to implement that program. The district further avers that the IHO did consider the parent's request for four hours of academic support but found her arguments unpersuasive.  The district cross-appeals arguing that the parent should have been denied funding because she failed to meet her burden to prove that the unilateral services she obtained for the student were appropriate and that in the alternative, the hearing record supports the IHO's reduced rate for the SETSS provider.  The district further submits that the parent's appeal should be dismissed and the order on pendency vacated as neither the SRO nor the IHO have subject matter jurisdiction to hear the implementation claim or determine pendency.^[7]

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]).^[8]  "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.).^[9]  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

As a preliminary matter, I will address the district's cross-appeal alleging that the IHO lacked subject matter jurisdiction to address the parent's requested relief.  The district argues that there is no federal 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.

Initially, the district's argument is unpersuasive as it is limited to IESP implementation and the parent's have challenged the recommendations contained in the student's IESP, particularly the reduction of academic services from four hours per week of individual SEIT services to three hours per week of group SETSS.  Nevertheless, even if the parent had only raised IESP implementation claims, the district's argument is without merit.  Recently in several 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 (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, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law alone and the parent 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]).^[10]

Education Law § 3602-c, concerning students who attend nonpublic schools, provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]).  It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).

Consistent with the IDEA, Education Law § 4404, concerning 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 (seeApplication 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).^[11]  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).  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.).^[12]  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).^[13]

The district contends that the injunction does not change the plain meaning of the Education Law and that under the Education Law, "there is not, and never has been, a right to bring a complaint for the implementation of IESP claims or enhanced rate services."  Consistent with the district's position, 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]).^[14]

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.

Accordingly, the district's cross-appeal seeking a dismissal on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be denied.

2. Scope of Review

Having determined that the IHO had subject matter jurisdiction over the parent's claims, I next turn to what issues are properly presented on appeal.  In this matter, neither party has appealed from the IHO's determination that the district failed to offer the student a FAPE for the 2023-24 school year by failing to implement services for the student for the 2023-24 school year and that the district's June 1 affirmative defense was not timely raised, or from the IHO's award of compensatory speech-language and OT services 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]).

As the IHO's finding that the district denied the student a FAPE is not challenged on appeal, and the analysis of the relief that the parent is seeking—district funding of privately obtained special education services—would not be altered by finding additional grounds for a denial of a FAPE, it is not necessary to address the parent's arguments raised on appeal regarding the appropriateness of the district's proposed educational program.

B. Unilateral Placement

In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement.  Instead, the parent alleged that, as a self-help remedy, she unilaterally obtained private services for the student from AIM without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof.  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]).^[15]  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).

Having determined the framework for the analysis of this matter, I note that given the IHO's unappealed finding that the district failed to offer the student a FAPE, the questions on appeal are no longer whether the three or four hours of SETSS  recommended in the IESPs developed by the district were appropriate, but whether AIM delivered specially designed instruction to the student to address his special education needs.

1. Student's Needs

Although not in dispute, a discussion of the student's needs provides context to resolve the issue on appeal, namely whether the unilaterally obtained services provided by AIM, specifically four hours per week of SETTS for the 2023-24 school year, were appropriate to address the student's needs.

According to the March 2021 IESP, the student's then most recent bilingual psychological evaluation was completed in December 2019 (Parent Ex. C at p. 1; see Parent Ex. B at p. 3). ^[16]  The March 2021 IESP reported that, per the December 2019 psychological evaluation, the student achieved a full-scale IQ in the low average range (Parent Ex. C at p. 1).  The March 2021 IESP included January 2021 provider updates from SEIT and speech-language providers (id. at pp. 1-3).  Based on those reports, the IESP indicated, in the area of cognitive skills, the student had difficulty staying seated for lessons or circle time and had difficulty staying focused for more than ten minutes (id.).  The IESP reported that the student demonstrated the ability to answer questions on a lesson or story read aloud with some prompts, identify body parts and colors, identify circle and square but not other shapes, give "both," "all," "one," and "two," and identify more/less, big/small, heavy/light, in/ and out, and over/ under (id.).  The IESP further reported the student sorted by characteristics or categories, identified objects that did not belong, counted up to five with 1:1 correspondence but required prompts for higher numbers, sequenced simple three step card sequences, and completed simple patterns with prompts (id.).^[17]  The March 2021 IESP also identified some weaknesses demonstrated by the student, indicating that he was often a few steps behind in completing tasks, did not identify number symbols or match quantity to number, and had difficulty identifying letters and letter sounds (id.).

The March 2021 IESP, per the January 2021 SEIT update, reported the student engaged in parallel play, often joined in play with peers, and engaged in pretend play activities, as well as demonstrated the ability to share and take turns in play (Parent Ex. C at p. 2).  However, according to the March 2021 reporting of the SEIT provider update, the student had difficulty following directions during group activities and understanding boundaries, and "sometimes g[ot] too wild and hurt[] peers" (id. at p. 2).^[18]

The March 2021 IESP also included a January 2021 speech provider update, which noted the student presented with receptive and expressive language deficits, articulation deficits, and poor oral motor skills and noted that he exhibited some specified phonological processes (Parent Ex. C at p. 1).

The March 2021 IESP carried over evaluative information from the March 2020 IEP that reported the student was assessed using the Peabody Developmental Motor Scales-Second Edition (PDMS-2) and scored 1.6 standard deviations below the mean, equal to a 26 percent delay compared to children his age (compare Parent Ex. C at p. 3, with Parent Ex. B at p. 3).  Additionally, as reported in the March 2020 IEP and the March 2021 IESP, the student was assessed using a sensory profile completed by the student's teacher, which indicated significant difficulties related to auditory filtering and sensation seeking (id.).  The March 2021 IESP included additional information from a January 2020 OT report that noted the student presented with poor sitting tolerance, decreased attention, and significantly decreased fine motor and grasping skills (Parent Ex. C at p. 3).

The most recent description of the student relevant to the time period in which the parent obtained private services for the 2023-24 school year comes from a review of the student's present levels of performance from the September 2022 IESP.^[19]  As the September 2022 IESP is the most recent IESP pertaining to the 2023-24 school year, a review of the student's abilities and needs, as described in the present levels of performance, offers the context for determining the appropriateness of the unilaterally obtained SETSS.

The September 2022 IESP noted that during the 2022-23 school year, the student was attending first grade in a religious, nonpublic school and received four hours per week of pull-out and push-in special education services, as well as two sessions per week of both speech-language therapy and OT (Dist. Ex. 2 at p. 1).  As reported in the September 2022 IESP, the student presented with speech and language delays; poor phonemic awareness; and deficient reading skills, writing skills, receptive language skills and social skills (id.).  The IESP further noted that "[s]ome progress ha[d] been made, yet significant delays still remain[ed] in many areas of development" and that the student's "deficits preclude[d] the acquisition of grade levels skills in a mainstream environment" (id.).

Specifically, the September 2022 IESP reported the student demonstrated delayed reading comprehension skills, and that he could not answer inferential or critical thinking questions, and had difficulty organizing his thoughts and ideas (Dist. Ex. 2 at pp. 1-2).  The September 2022 IESP reported the student presented with delays in reading readiness skills (Dist. Ex. 2 at p. 2).  The IESP indicated the student identified the sounds of several letters with 65 percent accuracy; however, he confused the names and sounds of all of the vowels, struggled to understand the concept that words were created from syllables, and had difficulty rhyming (id.).^[20]  With respect to writing, the September 2022 IESP reported that the student could not write numbers or letters and could not write his name (id.).  In relation to mathematic skills, the September 2022 IESP reported that the student struggled to identify numbers six through ten, and could not add ones or twos in a story format (id.).  In the area of receptive language skills, the September 2022 IESP noted the student had difficulty following directions in a sequence and was unable to follow two-to-three step directions (id.).  As related to expressive language, the student struggled to label items and actions in pictures and stories, had difficulty producing sentences in the correct word order, made errors in the use of pronouns, and had significant delays in articulation which negatively impacted the student being understood by teachers and peers (id.).

The September 2022 IESP reported that, in the area of social development, the student enjoyed playing with peers; however, the IESP also noted that he needed to improve his peer relationships and struggled to abide by teachers limits and requests, as well as express frustrations verbally rather than physically (Dist. Ex. 2 at p. 3).  The IESP reported the student needed to learn to participate in associative play and parallel play, to take turns without becoming frustrated, to focus on the game played, and to communicate with the peer he was playing with (id.).  According to the IESP, the student required prompting during individual and group activities and the student had difficulty following directions and needed them broken down into to small steps using charts and graphs (id.).  The September 2022 IESP further indicated that the student was easily distracted and was working on filtering auditory and visual stimuli in a 1:1 setting and in generalizing that skill into the classroom (id.).

As related to the student's physical development, the September 2022 IESP stated the student was in good physical health, as reported by his parent (Dist. Ex. 2 at p. 4).  The IESP further reported the student completed age-appropriate daily living skills and ascended and descended stairs appropriately (id.).  In the area of physical development occupational therapy needs were not identified (id.).

2. Specially Designed Instruction

With respect to the special education services provided to the student by AIM during the 2023-24 school year, the evidence presented by the parent included the parent's contract with AIM, a December 2023 special education progress report from the SETSS provider at AIM, and the testimony of the financial director at AIM (financial director), the quality assurance supervisor at AIM (supervisor), and the parent (Parent Exs. F-G; I-K).

According to the December 2023 AIM progress report, the student was being provided with four hours per week of SETSS (Parent Ex. G at p. 1).  In addition, the AIM financial director, AIM supervisor, and the parent testified that for the 2023-24 school year, AIM provided the student with four hours per week of SETSS (Parent Exs. I ¶ 3; J ¶ 7; K at p. 2).  The supervisor testified that the student received his services at his general education nonpublic school and, during the hearing, testified that AIM only provided the student with SETSS and that the SETSS were not provided in a group setting (Tr. p. 31; Parent Ex. J ¶ 10 ).  The December 2023 progress report did not specify if the services were provided within a group or 1:1 nor if they were provided as push-in or pull-out services (Parent Ex. G).  The report did however state, as related to deficiencies in completing tasks in the classroom, the provider addressed these areas "in small groups breaking up tasks" and, in relation to other specified deficits, "the provider ha[d] worked with [the student] one-on-one" (id. at pp. 2-3).^[21]  The supervisor identified the student's provider and testified that the provider was State certified to teach students with disabilities, was a bilingual Yiddish provider, and had training and experience to teach literacy and comprehension to school-aged children and adolescents (Parent Ex. J ¶ 8).

Turning to the December 2023 SETSS progress report, the report indicated the four hours of SETSS per week addressed delay areas so that the student could participate in educational activities and function age appropriately in school and social settings (Parent Ex. G at p. 1).  The December 2023 SETSS progress report identified the student's need areas as reading, writing, mathematics, receptive language, expressive language, and social/emotional/behavioral skills (id. at pp. 1-3).

According to the SETSS progress report, as related to reading skills, the student needed prompting to blend letters together, divide words into syllables, identify the sound of the beginning, middle, and end of a word, and prompting to read consonant/vowel/consonant (CVC) words (Parent Ex. G at p. 1).  Further, the report indicated the student did not state the main idea of a story, answer "why" questions related to a story, or make predictions, sequence, or connect the story to his life (id. at p. 2).  As related to writing, the report noted the student could form shapes and some of the letters of the alphabet but could not form all letters and needed help writing them down, and student struggled to align and space letters when writing words (id.).  In the area of mathematics, the report identified that the student did not match number cards to the correct number of manipulatives, had deficiencies in adding, and was unable to add numbers over 20 (id.).  Further, according to the report the student struggled subtracting simple numbers (id.).  Related to receptive language skills, the progress report indicated the student had difficulties with complex directions, which impacted his ability to progress in the classroom and that the student displayed deficiencies with completing tasks in the classroom (id.).  Regarding expressive language skills, the progress report noted the student's skills were deficient, which limited his ability to answer questions that required higher level understanding (id. at p. 3).  In discussing the student's social, emotional, and behavioral skills, the SETSS report stated the student presented with deficiencies in expressing his needs and feelings to adults and to peers, had a hard time waiting for his turn, and sometimes displayed aggressive behavior (id.).

The December 2023 SETSS progress report identified supports provided to the student in identified areas of need (Parent Ex. G).  In reading, the SETSS report stated that the provider was "using direct phonics instructions, visual cues and repetition to assist [the student] in his reading skills" (id. at pp. 1-2).  As related to writing, the SETSS report stated the provider worked with the student and "us[ed] special sheets that ha[d] prompts to enhance his writing skills" (id. at p. 2).  The SETSS report indicated that to address the student's identified deficits in mathematics, the provider was using scaffolding, as well as manipulatives and math cubes (id.).  To address the student's difficulties following more complex directions within the classroom "the provider worked with [the student] in small groups breaking up tasks to make them easier to complete" and had also asked the student's teacher to give the student smaller tasks (id. at p. 3).  To address deficits in expressive language skills the SETSS report stated that the provider worked with the student 1:1 and used visual aids to assist the student in answering questions (id.).  Further, the provider had discussed providing the student extra time to respond to questions with his teacher (id.).  In the area of social/emotional and behavioral skills, the provider worked with the student "using an emotion chart to help him express his feelings" and also "use[ed] social stories and reward charts to assist [the student] in his social and emotional skills" (id.).

Further, the December 2023 SETSS report included a list of approximately 12 goals that were being addressed during the 2023-24 school year and which were projected to be achieved within a year, with the report noting that the student's progress was being measured using a combination of formal and informal assessment tools (Parent Ex. G at p. 4).^[22]  The reported goals included increasing the student's reading readiness skills in areas of phonemics and comprehension; increasing mathematics skills by working on addition and subtraction using manipulative and by matching numeral symbols to the corresponding amounts; increasing writing skills for the student to print recognizable words with appropriate spacing and form commonly used words; increasing receptive language skills to follow complex directions; increasing expressive language skills for the student to express his needs and feelings to an adult; and increasing social/emotional skills for the student to articulate concerns, requests, and needs and to express anger appropriately by using words to state his feelings (id.).

According to the AIM supervisor, the program in place addressed the student's needs, particularly the student's reading and literacy skills, which the supervisor identified as something the student was "really behind his grade level in" (Tr. pp. 26-27).  The supervisor testified that the student needed services to be provided for each full day the student was in school correlating to four sessions per week because Friday was a half-day (Tr. pp. 28-29).  The supervisor testified that the agency used an Orton-Gillingham approach, and that the student's level required him to work with this program four days per week (Tr. pp. 29-30).^[23]  As related to social concerns, the supervisor testified that the SETSS provider worked with the student using a social thinking approach (Tr. pp. 30-31).  The supervisor testified that AIM provided SETSS to the student in Yiddish and in English to support the student's understanding and concept development (Tr. pp. 31-32).

In relation to the student's related services needs, specifically speech-language therapy and OT services, the parent's contract with AIM listed the recommended services for SETSS, OT, and speech language therapy and noted "AIM Educational Support Services will make every effort to implement the recommended services mentioned-above with suitable qualified providers for the 2023- 24 school year" (Parent Ex. F at pp. 1, 2).  However, the contract only reported a rate for SETSS (id. at p. 2).  Further, as noted above, the AIM supervisor testified that only SETTS was provided by the agency during the 2023-24 school year (Tr. p. 31; Parent Ex. J ¶ 7).

As related to provision of the services of speech-language therapy and OT to the student, the hearing record is limited.  The September 2022 IESP contained a parent report that the student did not receive OT or speech-language services the previous years; however, the September 2022 IESP included a June 2022 provider update indicating the student received SETSS four times per week in addition to "speech therapy as well as OT twice a week" (Dist. Ex. 2 at p. 1).  The September 2022 IESP did not contain updated speech-language or OT provider reports; whereas the previous March 2021 IESP included January 2021 provider updates from speech-language and SEIT providers; however, information related to OT was from January 2020 (Parent Ex. C at pp. 1-4).  The hearing record was devoid of any information related to services provided in OT or speech-language therapy during the 2023-24 school year either per parent obtained services or as provided by the district (see generally Tr. pp. 1-58; Parent Exs. A-K; Dist. Exs. 1-8; IHO Exs. I-II)^[24]  In identifying the student's speech-language needs, the September 2022 IESP, as described above, reported the student demonstrated receptive language needs related to following directions, and expressive language needs related to labeling items and actions in pictures and producing syntactically correct sentences (Dist. Ex. 2 at p. 2).^[25]  Although brief, as described above, the December 2023 SETSS progress report addressed similar areas and identified the SETSS provider working with the student on receptive language, expressive language,  and social emotional skills with peers (see Parent Ex. G at pp. 2-4).  In addition, the September 2022 IESP stated the student had significant delays in articulation (Dist. Ex. 2 at p. 2).  However, in the same IESP, the student was described as being able to "articulate his words most of the time" (id.).  There is no indication in the September 2022 IESP, or from evaluative information as reported in the March 2020 IEP, if the student's articulation and phonological needs were due to a dialectal difference in the student's dominant language of Yiddish or something else (see Parent Exs. B; Dist. Ex. 2).  However, it is worth noting that the September 2022 IESP did not contain goals targeting these areas (see Dist. Ex. 2 at pp. 5-8).^[26] Accordingly, the hearing record supports finding that the SETSS provided to the student during the 2023-24 school year addressed the student's speech-language needs as known at that time. ^[27]

As related to OT, the September 2022 IESP identified that the student did not write numbers or letters independently, needed a model to copy, and had needs with letter size and spacing (Dist. Ex. 2 at p. 2).^[28]  Here again, the December 2023 SETSS progress report identified these needs, the supports provided, as well as goals to be worked on and achieved during the 2023-24 school year that included increasing writing skills to form commonly used words, and writing skills to print recognizable words with appropriate spacing (Parent Ex. G at p. 4).  Under these circumstances, the parent should not be faulted for not obtaining OT services, as the student's OT needs had not been updated by the district since the student's initial evaluation reported in the March 2020 IEP, and the December 2023 SETSS progress report addressed his identified area of need to some extent (see Parent Exs. B at pp. 3, 5; C at p. 3; G at pp. 2, 4; Dist. Exs. 2 at pp. 2, 4; 7 at pp. 2, 5).

Overall, as discussed above, the SETSS progress report includes an explanation of the student's then-current needs in identifying skills the student needed to work on, described at least some techniques used by the SETSS provider in working with the student, identified annual goals the student was working on during the school year at issue, and provided at least some indication that the student was making progress in a few areas (see Parent Ex. G).  There is some information missing from the hearing record, particularly with respect to the lack of current evaluative information as to the student's related services needs and the basis for the information included in the progress report.  Particularly, the progress report itself noted that the student's progress was measured using a combination of formal and informal assessment tools and the AIM supervisor testified as to quarterly assessments, meetings, and observations of the student; however, of those identified measures, only the December 2023 progress report was included in the hearing record (Parent Exs. G; J ¶ 13).  However, it was not the parent's responsibility to evaluate the student and identify his needs (see A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]).  Accordingly, considering the totality of the circumstances, the hearing record supports finding that the unilaterally obtained services provided specially designed instruction to meet the student's identified needs.

C. Equitable Considerations

Having determined that the SETSS provided to the student during the 2023-24 school year wear appropriate to address the student's needs, the final criterion for an award is that the parents' claim must be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.  Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).  With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

The parent appeals from the IHO's awarding funding for only three hours per week of SETSS and the IHO's reduction in the awarded rate to $175 per hour instead of the contracted for amount of $218 per hour.  The district argues that the parent did not prove that the student required four hours per week of SETSS as delivered by AIM, instead of the three hours per week of SETSS recommended in the September 2022 IESP and also argues that the hourly rate charged by AIM for SETSS was excessive and the IHO was justified in reducing the awarded rate to $175 per hour.^[29]

Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]).  An IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100).  More specifically, while parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA.  To the contrary, "[r]eimbursement 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 v. Dep't of Educ., 471 U.S. 359, 370-71 [1985] [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).  Accordingly, while a parent should not be denied reimbursement for an appropriate program due to the fact that the program provides benefits in addition to those required for the student to receive educational benefits, a reduction from full reimbursement may be considered where a unilateral placement provides services beyond those required to address a student's educational needs (L.K., 674 Fed. App'x at 101; see C.B. v. Garden Grove Unified Sch. Dist., 635 F. 3d 1155, 1160 [9th Cir. 2011] [indicating that "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced"]; Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 [5th Cir. 1986] ["The Burlington rule is not so narrow as to permit reimbursement only when the [unilateral] placement chosen by the parent is found to be the exact proper placement required under the Act.  Conversely, when [the student] was at the [unilateral placement], he may have received more 'benefit' than the EAHCA [the predecessor statute to the IDEA] requires"]).

Initially, with respect to limiting funding to three hours per week of SETSS, as opposed to the four hours per week of SETSS delivered to the student, the hearing record does not support such a finding.  In review of the district's argument, the district is attempting to shift its burden of proving the appropriateness of its recommended program, consisting of three periods per week of SETSS and related services, onto the parent to disprove in seeking the additional hour per week of SETSS she believes the student needed in order to make progress.  In order to assert that the four periods per week of SETSS was one hour per week in excess of what was required as a FAPE, the district is relying to the number of hours per week that were offered in the CSE's IEP or IESPs to support that argument,  but the adequacy of the number of hours in those planning documents was among the issues that the parent challenged in this proceeding.  Accordingly the district was required to prove the appropriateness of number of hours it is now asserting was sufficient to offer the student a FAPE.^[30]  However, review of the hearing record does not support finding that three hours per week of SETSS would have been sufficient for the student, such that an additional period per week would have been in excess of a FAPE.  For instance, the AIM supervisor testified that the agency provided the student with four periods of SETSS per week, "because of the strong need of the student's support" (Tr. p. 24).  The AIM supervisor further testified that the parent requested SETSS, the agency completed an assessment of the student to determine his needs, and, based on "how big" the student's needs were, the agency provided the four hours per week requested by the parent (Tr. p. 25).  Additionally, as discussed above, the AIM supervisor testified as to the student's need for services for each full day the student was in school, providing his reasoning for having the student receive four hours per week of SETSS with one hour provided for each full school day (Tr. pp. 28-29).  Accordingly, the hearing record supports an award of the requested four hours per week of SETSS as the district has not shown that the additional one hour per week of SETSS was in excess of what was required to provide the student with a FAPE.

In addition to the excessiveness argument regarding the frequency of the SETSS delivered to the student, the parties also dispute the IHO's finding that the rate charged by AIM was excessive.  In finding that the rate charged by AIM was excessive, the IHO determined that the hearing record did not clearly detail how AIM calculated the $218 per hour rate charged for SETSS, that the agency paid the provider between $90 and $110 per hours, and that there was no explanation as to why the agency charged over $100 more per hour than it paid the provider (IHO Decision at p. 3).  The IHO, without further explanation, awarded a rate of $175 per hour.  The parent appeals from the IHO's finding that the contracted rate of $218 per hour was excessive asserting that there was no evidence to find that $218 per hour was an excessive rate for a Yiddish-speaking teacher.  The district argues for upholding the IHO's reduction of the awarded rate to $175 per hour.

Generally, an excessive cost argument for hourly services focuses on whether the hourly rate charged for service was reasonable and requires, at a minimum, evidence of not only of the rate charged by the unilateral placement, but evidence of reasonable market rates for the same or similar services.

Review of the record shows that the parent contracted with AIM for SETSS at a rate of $218 per hour (Parent Ex. F at p. 2).  The individual in charge of finances for AIM testified that the "ongoing rate for the provider [wa]s between $90 and $110" per hour (Tr. p. 39; Parent Ex. I ¶2).  When asked the rate paid to the student's provider, the witness testified that he did not remember but that "[i]t should be something around $100" (Tr. p. 39).  The individual in charge of finances at AIM then testified "we have a lot of overhead" explaining "the big overheads" were supervision (which included assessing the student, creating goals, and communicating with the provider as well as communicating with the general education teacher and anyone else to make sure everyone is working towards the same goals), "providing materials and curriculum," and that they had "a very big office" with "approximately 20 employees," indicating that AIM employed an "HR specialist, placement specialist, and a payroll specialist, a CPA," which also resulted in "general office overheads, like rent, utilities and mailing" (Tr. p. 40).  When asked to be more definitive, the individual in charge of finances at AIM testified that he could not remember whether the provider was an employee or a general contractor and that it was too difficult to keep track of how much time the supervisor spent with each child (Tr. pp. 40-42).  Overall, the witness did not provide a breakdown for any of the identified overhead costs to the agency.

With respect to fashioning appropriate equitable relief and its relevancy, I find that the AIR report entered into evidence (Dist. Ex. 1) offers some basis to conclude that the SETSS rates charged by Learning Learners were excessive, but not all of the AIR report and its methodologies are strictly applicable to a parent's decision to unilaterally obtain private special education services from a private company like AIM.  First, the AIR report draws data published by the United States Bureau of Labor Statistics (USBLS), a U.S. government agency, and it is well settled that judicial notice may be taken of such tabulations of data published by government agencies (Canadian St. Regis Band of Mohawk Indians v. New York, 2013 WL 3992830 (N.D.N.Y. Jul. 23, 2013]; Mathews v. ADM Milling Co., 2019 WL 2428732, at *4 [W.D.N.Y. June 11, 2019]; Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, 364 F.Supp.3d 253 [2019]).  I find that the wage information contained in the AIR Report from the USBLS is relevant to the question of how much special education teachers are paid in the New York City metropolitan region in a given year in which the data was published.^[31]  It was not inappropriate for the AIR to use such government-published data in its report.  The data set in the New York, New Jersey, and Pennsylvania region can be further limited and refined to the New York City, Newark, and Jersey City metropolitan region.  It is reasonable to find that most teachers (public and private) working with special education students in New York City fall within this subset of data that is the greater metropolitan region specified in USBLS data ("May 2023 Metropolitan and Nonmetropolitan Area Occupational Employment and Wage Estimates New York-Newark-Jersey City, NY-NJ-PA," available athttps://www.bls.gov/oes/current/oes_35620.htm).  Furthermore, the geographic data in this metropolitan subset does not have to be perfect in order to be sufficiently reliable for use when weighing equitable considerations.

The AIR report appears to address a question of what kind of approach "NYC DOE can use to determine a fair market rate for its Special Education Teacher Support Services (SETSS)" (Dist. Ex. 5 at p. 4).  If the district were to offer hourly rates that were formulated on a negotiated basis (i.e. to employees paid on an hourly basis), it would understandably try to do so in a similar manner to the way it used its bargaining power in negotiations with both the United Federation of Teachers and other entities for fringe benefits and incidental costs that result in the pay scales for public school employees.

However, a parent facing the failure of the district to deliver his or her child's IESP services and who is left searching for a unilaterally selected self-help remedy would be unable to hire teachers already employed by the district (unless a teacher is "moonlighting" and thus dually employed), and the parent facing that situation would therefore not be able to negotiate for private teaching services with the same bargaining power that the district holds.  Thus, while the AIR report's reliance on the salary schedules negotiated with the United Federation of Teachers that include provisions for steps, longevity, and criteria for additional experience and education, these provisions serve a different purpose⸺they are designed to ensure fair treatment among union members who are operating in public employment.  But the fair treatment among district employees is of little or no interest to a parent who is trying to contract for services with private schools or companies after the district has failed in its obligations to deliver the services using its employees, and thus the district negotiated provisions are not particularly relevant to equitable considerations in a due process proceeding involving the funding of unilaterally obtained services.

Fortunately, the USBLS data does not indicate that it is limited to district-employed teachers.  It covers wages in the entire metropolitan region, which would include teachers from across the spectrum including private schools, charter schools, and district special education teachers.  The USBLS indicated that in May 2023 data annual salaries for "Special Education Teachers, All Other" ranged from $49,000 in the 10th percentile, $63,740 in the 25th percentile, $97,910 in the median, $146,200 in the 75th percentile, to $163,670 in the 90th percentile.^[32]

In my view this is consistent with the fact that some local and private employers within the metropolitan region pay less than those in the district, and it leaves room for the fact that a few employers may have paid more.  As for fringe benefits and incidental costs, private employers who offer benefits and have overhead costs are not necessarily the same as those costs cited in the AIR report, which is premised upon the district's costs, not the parent's costs.  Reliance on such costs may be permissible when the district is managing its own operations and negotiating with a labor organization, but it is not relevant to the private situation in a Burlington/Carter unilateral private placement.  Again, the USBLS provides data for indirect and fringe benefit costs for civilian, government employees, and private industry, expressed as a percentage of salary, and for private industry such educational services costs were 27.7 percent, which tends to show that government benefits are often slightly better (and more expensive) than those offered in private industry (see Employer Costs For Employee Compensation (ECEC) – June 2023, available athttps://www.bls.gov/news.release/archives/ecec_09122023.pdf).^[33]

The undersigned had little difficulty with the explanation in the AIR report that children must be educated for 180 days per year in this state and that school days are typically between six and seven hours long.^[34]  I will take this into account when ordering equitable relief.

The director testified that AIM was paying the SETSS provider approximately $100 per hour (Tr. pp. 66-67).  A rate of $100 per hour annualized is $117,000, and that figure is only slightly above the 50th percentile, thus the $100 per hour portion of the rate is not excessive.  However, the amount of indirect costs above the teacher's hourly wage is $118 per hour or approximately 46 percent of the $218 hourly rate charged by AIM.  This falls far above the 27.7 percent identified in the USBLS data.

When considering the testimony described above, in which the person in charge of finances at AIM identified only general categories of indirect costs that factored into the hourly rate charged and did not did not present evidence of the actual overhead costs applied to the rate charged for the student or why such expenses would justify the amount of indirect costs included in the hourly rate charged, the evidence leads me to the conclusion that the parent arranged for services from AIM at an excessive cost, as the district argues, and that it is more than what the district should be required to pay.  On the other hand, some indirect or overhead cost is reasonable.  Using 27.7 percent for overhead costs, and the salary of the provider as a known factor, the computation for a total salary results in a rate of $138.31 per hour.  As the district does not assert on appeal that the rate should be reduced to less than the $175 per hour that was awarded by the IHO, I will hold the district to the position it adopted and order the district to fund the costs of SETSS at the rate of $175 per hour as an equitable remedy, subject to the parent presenting to the district proof of the student's attendance, and invoices from AIM.

D. Pendency

The parent asserts that the IHO erred in ordering that the student's placement during the pendency of the proceeding be based on the disputed March 2021 IESP.  The district agrees that the IHO erred in finding pendency based on the March 2021 IESP rather than the March 2020 CPSE IEP, but cross-appeals asserting that because the parent is seeking preschool services as pendency, the district is responsible for implementing pendency services and the district should be permitted to provide pendency services "in a school-aged setting of its choosing" rather than in the nonpublic school where the student was parentally placed.

As an initial matter, the student's entitlement to a pendency placement in this matter began with the filing of the due process complaint notice on July 12, 2024 (see Parent Ex. A).  It is well-settled that a student's entitlement to pendency arises automatically, begins on the date of the filing of the due process complaint notice, and continues until the conclusion of the matter (20 U.S.C. § 1415[j]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; Zvi D., 694 F.2d 904, 906).  However, it is worth noting that the substance of this matter related to the 2023-24 school year, which had concluded at the time of filing of the due process complaint notice on July 12, 2024 and, accordingly, the student's entitlement to pendency, at this time, relates solely to the 2024-25 school year for which there is little information in the hearing record as the hearing concluded on September 5, 2024 (Tr. pp. 1-58).  Although there is insufficient evidence in the hearing record to identify a remedy for missed pendency services, if there are any, the parties are entitled to a determination as to what constitutes the student's pendency program.

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).^[35]  Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]).  The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]).  A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]).  The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906).  Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]).  Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171).  However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]).  Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).

In its answer and cross-appeal, the district concurs with the parent's assertion that the March 2021 IESP did not establish pendency for the student as the parent disagreed with the IESP (Answer and Cr.-Appeal at ¶7).  As it is undisputed that the March 2021 IESP did not constitute the student's "last agreed upon program," the IHO's decision on pendency shall be vacated.

The question that follows is what constitutes a proper basis for pendency for the student during this proceeding.  Although inartfully drafted, the parent's request for review appears to seek pendency based on the student's March 2020 CPSE IEP, as that was the sole IEP in the hearing record and the sole program recommending that the student receive four periods of special education support per week.  Review of the parent's due process complaint notice shows that the parent had asserted that the March 2020 CPSE IEP constituted the student's pendency program (Parent Ex. A at p. 2).

The district does not appear to object to the use of the March 2020 CPSE IEP as the basis for pendency for the student and, instead, argues that the parent "is not entitled to the pre-school program with [the parent's] preferred private providers" (Answer and Cr.-Appeal at ¶7 [emphasis added]).  According to the district, if the parent wanted to avail herself of pendency in this matter, the district's obligation would be "to locate and provide such a program in a school-aged setting of its choosing" (id.).  Essentially, the district is asserting that by parentally placing the student in a nonpublic school, the parent has elected to relinquish her right for the student to receive the itinerant services recommended in the March 2020 IESP.

Although State regulations do not require that a student who had previously been identified as a preschool student with a disability remain in a preschool program for which he or she is no longer eligible by reason of age (8 NYCRR 200.16[h][3][i]; see 8 NYCRR 200.5[m]), SROs have long noted that the IDEA makes no distinction between preschool and school-age children and consequently, if a student is no longer eligible to remain in a particular preschool program, the district remains obligated to provide the student with "comparable special education services during the pendency of an appeal from the CSE's recommendation for [the student's] first year of education as a school age child" (Application of a Child with a Handicapping Condition, Appeal No. 91-25; see Henry v. Sch. Admin. Unit No. 29, 70 F. Supp. 2d 52, 61 [D.N.H. 1999] [holding that when a student has aged out of a particular program, the district "must fulfill its stay-put obligation by placing a disabled student at a comparable facility"]; Application of a Student with a Disability, Appeal No. 16-020; see also Makiko D. v. Hawaii, 2007 WL 1153811, at *10 [D. Haw. Apr. 17, 2007]; Laster v. Dist. of Columbia, 394 F. Supp. 2d 60, 65-66 [D.D.C. 2005]; Letter to Harris, 20 IDELR 1225 [OSEP 1993]).

As noted above, pendency is not based on a particular location but is focused on the general level and type of services (see Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents., 629 F.2d at 753, 756).  Thus, notwithstanding that the student "aged out" of the programs available at the preschool location, the March 2020 CPSE IEP remained the student's pendency IEP (see L.B. v. New York City Dep't of Educ., 2022 WL 220085, at *3 [S.D.N.Y. Jan. 25, 2022]).

Accordingly, in this instance, beginning with the filing of the due process complaint notice, the student was entitled to receive comparable special education services to the services recommended in the March 2020 CPSE IEP, which consisted of four one-hour sessions per week of direct individual SEIT services in Yiddish, two 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of individual OT (Parent Ex. B at p. 14).^[36]  In a proceeding such as this where SEIT services are at issue for a school-aged student, the substance of the services is, in essence, the provision to the student of educational services by a special education teacher who assists the student in addition to the classroom program. Accordingly, the four hours per week of SEIT services recommended in the March 2020 CPSE IEP shall for purposes of implementation be deemed the provision of 1:1 special education teacher support for the student regardless of the terminology used to describe that support.

Additionally, of note, the special education programs and services recommended in the March 2020 CPSE IEP were itinerant services intended to be provided in an "[e]arly childhood program selected by the parent" or a "[c]hildcare location" (see Parent Ex. B at p. 14).  However, as with the SEIT services, "early childhood programs" and "early childcare locations" are specific to preschool students and pendency does not operate to allow or require a student who is school age to remain in a preschool program (8 NYCRR 200.16[h][3][i]; see 8 NYCRR 200.5[m]).  Accordingly, it would not be expected for the services to continue to be provided in an early childhood program selected by the parent.  Once a student becomes school age, the student is entitled to attend the public schools in the district at no cost (Educ. Law § 3202[1]) and the pendency provision does not deprive the student of a free education as a school-aged student (see Application of the Dep't of Educ., Appeal No. 20-163 [finding a notation in an IEP that itinerant services were to be provided in an early childhood program was not part of the student's educational program for purposes of pendency and the district was required to implement the itinerant services in a location determined by the district).  However, just because a student is entitled to attend the public schools in the district does not mean that the student is required to attend the public schools and the district has not presented a justifiable argument for ending a student's right to itinerant pendency services solely because the student has been placed by the parent at a nonpublic school.

Based on the above, during the pendency of this proceeding, the district is required to provide the student with four hours per week of individual special education support in Yiddish, along with related services consisting of two 30-minute sessions per week of individual speech-language therapy and two 30-minute sessions per week of individual OT.  However, as the hearing concluded prior to the start of the 10-month 2024-25 school year, when the pendency services would have first been required to be implemented, there was insufficient evidentiary basis to determine the extent to which, if any, the district failed to implement the student's pendency program.  Therefore, the only pendency determination in this proceeding is the description of the educational program to which the student is entitled during the pendency of this proceeding.

VII. Conclusion

The IHO had subject matter jurisdiction over the parents' claims and the district's cross-appeal asserting otherwise is rejected.  Additionally, the district has not appealed from the IHO's finding that it denied the student a FAPE and the hearing record supports finding that the services delivered to the student by AIM during the 2023-24 school year were appropriate and the parent is awarded funding for four sessions per week of SETSS delivered by AIM during the 2023-24 school year, at a rate of $175 per hour as awarded by the IHO, for the reasons explained above.  Additionally, the student is entitled to pendency services beginning with the filing of the due process complaint notice in this matter, which services consisted of four hours per week of individual special education support in Yiddish, two 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of individual OT.

I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations herein.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision, dated December 5, 2024, is modified by reversing that portion which limited the SETSS to three hours per week of SETSS from AIM; and

IT IS FURTHER ORDERED that the district shall directly fund the costs of four hours per week of SETSS delivered to the student by AIM during the 2023-24 school year at a rate not to exceed $175 per hour, upon the parent's the submission of proof of the delivery of the services to the student; and

IT IS FURTHER ORDERED that the pendency determination, within the IHO's decision, dated December 5, 2024 is modified to direct that the student's educational program during the pendency of this proceeding consists of four hours per week of individual special education support in Yiddish, two 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of individual OT.

---

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] The term SETSS is not defined in the State continuum of special education services (see NYCRR 200.6), and the manner in which those services are treated in a particular case is often in the eye of the beholder.  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, and unless the parties and the hearing officer take the time to develop a record on the topic in each proceeding it becomes problematic (see Application of the Dep't of Educ., Appeal No. 20-125).  For example, SETSS has been described in a prior proceeding as "a flexible hybrid service combining Consultant Teacher and Resource Room Service" that was instituted under a temporary innovative program waiver to support a student "in the general education classroom" (Application of a Student with a Disability, Appeal No. 16-056), and in another proceeding it was suggested that SETSS was more of an a la carte service that is completely disconnected from supporting the student in a general education classroom setting (Application of a Student with a Disability, Appeal No. 19-047).

[3] The hearing record also includes a May 1, 2023 letter sent by the parent requesting special education services; however, that letter appears to be for a different student (see Dist. Ex. 4).

[4] The contract did not reference any specific IEP, but based on the record, it appears that the parent contracted for the services recommended in the student's March 4, 2020 CPSE IEP as that is the only IEP/IESP containing a recommendation for SEIT services (see Parent Ex. B at p. 15).

[5] At times in the hearing record, the services provided by AIM appear to be interchangeably referred to as SEIT services or SETSS.

[6] Although the parent unilaterally obtained services from AIM, the parent also sought compensatory education services equivalent to any services missed under pendency and for which the parent was unable to locate providers herself (Parent Ex. A at pp. 3-4).

[7] The request for review states that, on September 5, 2024, the district submitted a motion to dismiss; however, there is no such motion in the hearing record.

[8] 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]).

[9] 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.

[10] 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]).

[11] The district did not seek judicial review of these decisions.

[12] The due process complaint notice in this matter was filed with the district on July 12, 2024 (Parent Ex. A), prior to the July 16, 2024 date set forth in the emergency regulation.  Since then, the emergency regulation has lapsed.

[13] 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]).

[14] 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; therefore, a copy of the August 2024 rate dispute guidance has been added to the administrative hearing record.

[15] 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 Learning Learners and Well Said Speech Service PLLC (Educ. Law § 4404[1][c]).

[16] Although the parent challenged the recommendations contained within the March 202—and the September 2022 IESP as they were the same recommendations made in the March 2021 IESP, the parent has not challenged the accuracy of the description of the student from either IESP (see Parent Ex. A).

[17] The earlier March 2020 IEP included annual goals related to using math concepts of both, all, one, two, more/less, and counting three objects with 1:1 correspondence (compare Parent Ex. B at p. 6, with Parent Ex. C at p. 1).

[18] The March 2020 IEP contained an annual goal for the student to play cooperatively with peers, with objectives to engage in parallel play, share, and take turns (Parent Ex. B at p. 6).

[19] Although the parent was in attendance at the September 2022 CSE meeting, the parent did not refer to the September 2022 IESP in her due process complaint notice (see Parent Ex. A; Dist. Ex. 2 at pp. 1, 12).

[20] The IESP specifically noted that in the student's "native language of Yiddish he c[ould] identify and label some of the consonants of the Hebrew alphabet"; however it is not clear if the remainder of the description of the student's reading readiness skills also discussed the student's abilities in his native language or if they reflected readiness skills in English (Dist. Ex. 2 at p. 2).  The parent reported that the student was Yiddish dominant (id.).

[21] The parent testified that group services as recommended by the district would have helped the student with his social struggles (Tr. p. 15).  Additionally, the financial director reported the agency did offer a group rate of $140; and stated, "if it's possible that this child should be in a group, then we will be offering this" (Tr. pp. 43-44).  However, there is no further indication in the hearing record that the parent attempted to obtain group services for the student or that they were provided to the student during the 2023-24 school year.

[22] The hearing record did not include formal or informal measurements of goals, aside from the description of the student's performance contained within the December 2023 SETSS progress report, although the hearing took place after the conclusion of the 2023-24 school year (Parent Ex. G; see Parent Exs. A-K; Dist. Exs. 1-8; IHO Exs. I-II).  The supervisor specified that a Fountas and Pinnell assessment was completed for literacy skills, and reported the student was "really behind his grade level in all literacy skills" at the time of assessment (Tr. pp. 26-27).

[23] The December 2023 SETSS progress report did not specify use of Orton-Gillingham for reading instruction (see Parent Ex. G).

[24] The June 2024 IESP, created at the end of the student's 2023-24 school year, included an undated SETSS provider report within the present levels of performance; however, it did not contain provider reports for OT or speech-language therapy (see generally Dist. Ex. 7 at pp. 2-5).

[25] In describing the student needs, the September 2022 IESP did not provide information on whether the student's speech-language difficulties were in the student's native language of Yiddish or in English (see generally Dist. Ex. 2).  The September 2022 IESP only made mention of Yiddish in relation to identification and understanding of the Hebrew alphabet (Dist. Ex. 2 at p. 2).

[26] In looking at the progression of speech goals, the March 2020 IEP contained an oral motor goal, and the March 2021 IESP contained a speech/phonological goal to improve articulation and eliminate phonological processes (Parent Ex. C at p. 7).  The September 2022 IESP recommended approximately nine goals; however, it did not address speech in particular; one goal addressed reading, and another addressed answering questions related to text/retelling a story (Dist. Ex. 2 at pp. 5-8).  The June 2024 IESP contained two annual goals labeled as speech goals, with one that addressed use of context clues to determine unfamiliar words and the other focused on reading grade level texts and providing responses and answering questions (Dist. Ex. 7 at pp. 9-10).

[27] Of note, the district's updated March 2024 psychoeducational evaluation had findings that the student's dominant language continued to be Yiddish and, although he understood directions in English, he responded in Yiddish and, as such, "the evaluation was conducted in Yiddish, which [wa]s his dominant language" (Dist. Ex. 6 at p. 1).  Academic testing in the area of reading reported the student's scores in "word reading" fell in the very low range, and in the extremely low range on reading comprehension tasks, as he was unable to read stories on grade level (id.).  However, the psychoeducational evaluation report noted "[the student] was informally tested in Yiddish reading [and] his skills appear[ed] to be on par with his peers" (id. at p. 3).  Here, aside from cross-examination of the percentage of SETSS as provided in Yiddish versus English, the record is not developed as related to the student's reading skills or needs in his dominant language of Yiddish, in comparison to his reading needs in English (see Tr. pp. 31-32; see generally Parent Exs. A-K; Dist. Exs. 1-8; IHO Exs. I-II; Tr. pp. 1-30; 33-58).

[28] However, in the area of physical development, the September 2022 IESP reported that the student had "good physical health all around" and noted in areas of strength that he enjoyed ball games and building with legos" (Dist. Ex. 2 at p. 5).  The IESP also reported that "[the student] ha[d] not received OT, though [the parent] d[id] not have any concerns about his physical health or development" (id.).

[29] It is worth noting again, neither party has appealed from the IHO's award of compensatory speech-language therapy and OT services to be provided by a provider of the parent's choosing at a "reasonable market rate" set by the district's implementation unit (see IHO Decision at p. 4).

[30] The IHO did not address the parent's claim that the student required "either a continuation of the broader SEIT program or an appropriate placement in a "hybrid special education/general education program" to address the student's needs in a mainstream environment (IHO Decision; see Parent Ex. A at p. 3).  Although the parent appealed from the IHO's failure to rule on that issue, the district did not appeal from the IHO's overall finding that the district denied the student a FAPE for the 2023-24 school year and, more specifically, the district did not appeal from the IHO's failure to rule on the appropriateness of the recommended program asserting instead that the "IHO properly concluded that the Parent did not demonstrate that the Student needed four hours per week of SETSS instead of [] three hours" (Answer with Cross-Appeal ¶ 12).  However, as noted above, this would be shifting the burden of proving the appropriateness, or inappropriateness, of the district's recommended program to the parent.

[31] The Occupational Employment and Wage Statistics data is published by the USBLS starting in May of each calendar year, and the AIR report in evidence used May 2022 data, which preceded the 2023-24 school year at issue in this proceeding and would be relevant thereto (seehttps://www.bls.gov/oes/tables.htm); however, I note that May 2023 data is the most recent annual data published by the USBLS, relevant to the school year at issue in this decision. While the AIR report presented a snapshot in time, I do not share any concern that the data itself is "fixed in perpetuity" because it is updated annually, which is particularly relevant when considering due process claims under IDEA and Article 89 are almost always related to a specific annual time period.

[32] The 2023 data for the metropolitan area is available in a downloadable Excel format, or the most recent statics offered can be searched using the USBLS Query System for "Multiple occupations for one geographical area" (seehttps://data.bls.gov/oes/#/home).  A larger file with all regions for May 2023, including the New York-Newark-Jersey City metropolitan region is also available (https://www.bls.gov/oes/special-requests/oesm23ma.zip).

[33] The ECEC covers the civilian economy, which includes data from both private industry and state and local government.  One could make an argument that a company like Learning Learners should fall in one of the different rows of private employers, but it would result in only nominal differences in calculation, and the parent did not avail himself of the opportunity to develop the record further regarding the indirect costs beyond that of the teacher's hourly wage.

[34] Using 6.5 hours per day results in approximately 1170 hours of instruction time for students during a school year, and similar to teachers, related services are typically provided to students on a similar schedule during the school day.

[35] In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (see Ventura de Paulino, 959 F.3d at 532-36).

[36] State law defines SEIT services as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "Special Education Itinerant Services for Preschool Children with Disabilities," Office of Special Educ., available athttps://www.nysed.gov/special-education/special-education-itinerant-services-preschool-children-disabilities).  In addition, SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii] [emphasis added]).