STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-039
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
The Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Nicole Daley, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied in part her request that respondent (the district) pay Upgrade Resources ("Upgrade") for private special education services delivered to her daughter for the 2023-24 school year. The district cross-appeals from that portion of the IHO's decision which found the student eligible to receive special education services and determined that the parent's unilaterally obtained special education services were appropriate. The appeal must be dismissed. The cross-appeal must be sustained in part.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed, and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail.
On April 4, 2022, a CSE convened, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP with an implementation date of April 5, 2022 (see Parent Ex. B).[1] The IESP indicated that the student exhibited academic delays as well as deficits in expressive and receptive language skills (Parent Ex. B at pp. 1-4). As a result, the April 2022 CSE recommended that the student receive five periods per week of direct, group special education teacher support services (SETSS) and two 30-minute sessions per week of individual speech-language therapy (id. at p. 7).[2]
The parent electronically signed a contract with Upgrade to provide services to the student for the 2023-24 school year on August 18, 2023 (see Parent Ex. E at p. 3). According to the contract, the parent "confirm[ed] that an IEP/IESP []was developed by the [district] for the Student" and that "the [district] ha[d] not offered any suitable providers to the Student in connection with the last agreed upon [p]rogram" and the parent requested that Upgrade implement the district recommended program "to whatever extent [wa]s reasonably possible" (id. at p. 1).
On September 8, 2023, the parent, through her attorney, stated her agreement with and consent for the district to implement all services recommended on the April 2022 IESP (Parent Ex. C). The letter indicated, however, that the parent had no way of implementing the recommendations and, despite her best efforts, she was unable to locate providers for SETSS and related services at the district's "standard rate" (id. at p. 2). The parent indicated she was writing to inform the district that she had no choice but to implement the April 2022 IESP on her own and seek reimbursement or direct payment from the district (id.). The letter identified the school the student would be attending for the 2023-24 school year and stated that "her special education program [would be] provided on school premises" (id.).[3]
On February 14, 2024, a CSE convened and determined the student was eligible for special education as a student with a speech or language impairment and developed an IESP with a projected implementation date of February 28, 2024 (Parent Ex. D).[4] The February 2024 IESP indicated that the student had difficulty in all subject areas and received letter grades ranging from C+ to F during the first semester of the 2023-24 school year (id. at pp. 1, 2). The CSE increased the frequency of the student's recommended SETSS from five periods per week to seven periods per week and continued to recommend that she receive two 30-minute sessions per week of individual speech-language therapy (compare Parent Ex. B at p. 7, with Parent Ex. D at p. 9).
A. Due Process Complaint Notice
In a due process complaint notice dated April 8, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year by failing to implement the April 2022 and February 2024 IESPs (Parent Ex. A at p. 2-3). The parent expressed concern "regarding the delay in convening a new IEP meeting" for the 2023-24 school year asserting that the April 2022 IESP "was outdated and expired" at the start of the school year (id. at p. 2). The parent further alleged that "[w]ithout supports, the parental mainstream placement [wa]s untenable" and that the district's "failure to either implement the services or provide a placement" was a denial of FAPE (id. at p. 3).
For relief, the parent requested findings that the district's failure to convene and recommend services for the student in a timely manner and failure to implement its recommendations for the 2023-24 school year were a denial of a FAPE (Parent Ex. A at p. 3). The parent further requested that the services outlined in the February 2024 IESP be funded "retroactive to the start of the 2023-24 school year" at the providers contracted for rate and that the district be ordered to fund compensatory education equivalent to any services missed (id.).
B. Impartial Hearing Officer Decision
An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on June 11, 2024 (Tr. pp. 1-44). In a decision dated December 13, 2024, the IHO found that the district denied the student a FAPE for a portion of the 2023-24 school year by failing to implement equitable services and that the parent's unilaterally obtained services were appropriate for the student (IHO Decision pp. 3, 5-6).[5]
The IHO found that the parent failed to rebut the district's argument that she did not comply with the June 1 notification deadline of Education Law § 3602-c (IHO Decision p. 2). The IHO noted that the parent's advocate argued at the hearing that the district waived the affirmative defense by developing the February 2024 IESP; however, the IHO determined that the parent "did not present any credible or persuasive evidence showing that parent satisfied [her] obligation" (id.). The IHO determined that the district did not waive the notice requirement until after the development of the February 2024 IESP; accordingly, the IHO found the student was entitled to services during the 2023-24 school year beginning on February 28, 2024, the projected date for implementation of the February 2024 IESP (id.).
On the issue of the appropriateness of the parent's unilaterally obtained services, the IHO found that the documentary and testimonial evidence provided during the hearing "established that the provider employed a variety of research-based methodologies," the provider created a SETSS program suited for the student's individualized needs, and, through the targeted interventions employed by the provider, the student was able to make progress with the unilaterally obtained services (id. at pp. 5-6).
Next, the IHO held that equitable considerations did not favor the parent and that the rate sought to fund the unilaterally obtained services was excessive (IHO Decision at p. 7). The IHO noted that the parent's witness testified that the provider was paid $95 per hour but she could not provide a breakdown as to the agency's expenses nor was there any testimony provided as to what efforts the parent made to secure a provider at the district's approved rate (id.). Moreover, the IHO found that the district's submission of an American Institutes for Research (AIR) report provided a basis to conclude that the SETSS rate sought by the parent's unilaterally obtained provider was excessive and warranted a reduction (id.). The IHO calculated what she believed was a reasonable rate using a formula derived from the New York State Education Department's rate setting methodology, arriving at a figure of $146.15 per hour (see id. at p. 7 & n.7).
Finally, the IHO reviewed the parent's request for compensatory education and determined that the parent bore the burden of production and persuasion as to this request (IHO Decision at pp. 9-10). According to the IHO, the parent requested compensatory "occupational therapy, physical therapy, and counseling at the contracted rates for those services but the parent failed to demonstrate a "deficit was created by the [d]istrict[]" such that the requested compensatory education would address same and denied the request in its entirety (id.).[6]
IV. Appeal for State-Level Review
The parent appeals, arguing that the IHO erred in finding that the district's development of an IESP did not amount to a waiver of the notification requirement of Education Law § 3602-c. The parent argues that the district was required to place the parent on notice prior to the hearing and the June 1 affirmative defense was not properly raised in the due process response such that the district waived the defense. The parent also argues that the district was aware that the parent was seeking services, as shown in her proposed additional evidence, and the district also waived the June 1 notice requirement by developing an IESP with an exact implementation date and sending the parent a prior written notice during the 2023-24 school year.[7] Turning to equitable considerations, the parent argues that the district did not present credible evidence of a reasonable market rate and the IHO improperly considered evidence that was not included in the hearing record to calculate a reasonable rate. Finally, the parent argues that the student is entitled to an award of compensatory education for those services missed during pendency and the IHO's finding that the parent did not submit testimony or documentary evidence to support her claim was incorrect.
The district submits an answer with cross-appeal and asserts that the parent's request for review should be dismissed for failure to comply with the practice regulations.[8] The district cross-appeals arguing that the student was not eligible to receive services during the 2023-24 school year because the parent failed to timely notify the district as required by Education Law § 3602-c and the IHO erred in finding that the district waived the affirmative defense through its development of the February 2024 IESP. The district also cross-appeals from the IHO's finding that the unilaterally-obtained services were appropriate, asserting that the parent failed to demonstrate the provider was appropriately licensed and the student was making sufficient progress. With respect to equitable considerations, the district argues that the IHO was correct in reducing the rates and further asserts that the parent failed to timely provide a ten-day notice that she had unilaterally obtained private services. The district also argues that the student was not entitled to compensatory services with respect to pendency because the student is not entitled to pendency given the parent unilaterally obtained services from a private provider.
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]).[9] "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.).[10] 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
Initially, neither party has appealed from the IHO's denial of the district's motion to dismiss or from the IHO's exclusion of the parent's affidavit testimony. 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]). Additionally, the parties' disagreement regarding the district's obligation to provide the student with services relates solely to whether and at what point the district was required to provide the student with equitable services available to student's parentally placed within the district in nonpublic schools.
A. June 1 Deadline
The State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district 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]).
With respect to a parent's awareness of the requirement, the Commissioner of Education has previously determined that a parent's lack of awareness of the June 1 statutory deadline does not invalidate the parent's obligation to submit a request for dual enrollment by the June 1 deadline (Appeal of Austin, 44 Ed. Dep't Rep. 352, Decision No. 15,195, available athttps://www.counsel.nysed.gov/ Decisions/volume44/d15195; Appeal of Beauman, 43 Ed Dep't Rep 212, Decision No. 14,974 available athttps://www.counsel.nysed.gov/Decisions/volume43/d14974). Specifically, the Commissioner stated that Education Law § "3602-c(2) does not require [the district] to post a notice of the deadline" and that a parent being "unaware of the deadline does not provide a legal basis" for the waiver of the statutory deadline for dual enrollment applications (Appeal of Austin, 44 Ed. Dep't Rep. 352).
The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]). "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B., 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011], quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).
Here, the parent asserts that the district was required to and failed to raise the June 1 affirmative defense in its response to the parent's due process complaint notice. However, the hearing record shows that the district adequately raised the June 1 affirmative defense. The district raised the affirmative defense in a letter sent to the IHO on June 4, 2024, prior to the June 11, 2024 hearing (IHO Exhibit V). Moreover, the IHO's May 2, 2024 Scheduling Order and Hearing Procedures specified that affirmative defenses must be raised by the end of the opening statement (IHO Ex. I ¶ 18). In conformance with the IHO's rules for the hearing, the district raised the affirmative defense in its submission of its written opening statement and during the district attorney's opening statement at the hearing (Tr. p. 8; IHO Ex. III at p. 2). In sum, there is no evidence or testimony in the record on appeal that would provide a basis for the parent's argument that the district failed to timely raise this defense.
Turning to a review of the district's June 1 defense, the hearing record does not include any indication that the parent made a written request for equitable services from the district for the 2023-24 school year. Additionally, the parent, through her counsel, conceded on the record that she did not send a letter to the district as required by Education Law § 3602-c (Tr. pp. 11-12). Accordingly, this matter turns on whether the otherwise waived the June 1 defense by its subsequent actions during the 2023-24 school year.
The parent contends that the CSE's development of the student's February 2024 IESP, with a projected implementation date of February 28, 2024, constitutes a waiver of the June 1 affirmative defense by the district. A district may, through its actions, waive a procedural defense (Application of the Bd. of Educ., Appeal No. 18-088). The Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" and that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]). While delivery of services reflects "clear and unmistakable waiver," it is less clear that the occurrence of a CSE meeting and development of an IESP would, without more, constitute a waiver. For example, to the extent a district was navigating two requirements in tension with one another, i.e., to conduct an annual review to engage in educational planning for a student (see 20 U.S.C. § 1414[d][4][A][i]; 34 CFR 300.324[b][1][i]; see also Educ. Law §§ 3602-c[2][a], 4402[1][b][2]; 8 NYCRR 200.4[f]) versus awaiting a parent's written request for it to "furnish services" (Education Law § 3602-c[2][a]), the occurrence of the meeting might not clearly or unmistakably reflect the district's waiver of the June 1 notice.
In this case, it is undisputed that the district provided no services to the student during the 2023-24 school year. Although the district created an IESP for the student in both April 2022 and February 2024, the mere fact that February 2024 CSE meeting was conducted during the 2023-24 school year could merely show the effort of the district to comply with its annual review requirement, and, accordingly, it is not a clear and unmistakable waiver of the June 1 requirement (see Parent Exs. B, D). Accordingly, the evidence in the hearing record does not support a finding that the district impliedly waived the June 1 defense through its actions prior to the impartial hearing (cf. Application of the Bd. of Educ., Appeal No. 18-088 [finding that the district impliedly waived the June 1 defense where the district created an IESP for the student and began providing services at the student's nonpublic school after the June 1 deadline]).
While I find that the district did not waive the notification requirement by convening the February 2024 CSE and developing an IESP for the student, and was therefore under no obligation to provide the student services during the 2023-24 school year, in an unusual turn of events the district's attorney affirmatively argued, during the hearing, that the district was obligated to provide services to the student beginning with the February 2024 IESP implementation date of February 28, 2024 (Tr. pp. 9-12, 22; see Parent Ex. D). Accordingly, I will hold the district to its position. Therefore, in light of the position that the district adopted at the hearing, I see no reason to disturb the IHO's determination that the student was entitled to have the February 2024 IESP implement beginning February 28, 2024 through the end of the 2023-24 school year.
B. Unilateral Placement
In light of the above, I will turn next to the parties' dispute and the IHO's findings as to the appropriateness of the parent's unilaterally obtained services.
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 the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from Upgrade for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof. Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).
The parent's request for district funding of privately-obtained services must be assessed under this framework. Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[11] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1. Student's Needs
Although the student's needs are not in dispute, a review thereof will provide the background necessary to evaluate the appropriateness of the services provided to the student by Upgrade during the latter portion of the 2023-24 school year that the district agreed the student was entitled to dual enrollment services.
As noted above, the CSE convened on February 14, 2024, determined the student's continued eligibility for special education as a student with a speech or language impairment, and developed an IESP to be implemented on February 28, 2024 (Parent Ex. D at p. 1). The February 2024 IESP indicated that the student was parentally placed in a nonpublic school and that the CSE used prior ELA testing, report cards, and teacher and parent reports to develop the IESP (id. at pp. 1-4).
According to the February 2024 IESP, the student demonstrated "difficulty in all subject areas" (Parent Ex. D at p. 2). Specifically, the February 2024 IESP indicated the student had trouble with "number concepts," "reading and understanding text," "writing essays," and "conceptual ideas" (id. at pp. 2-3). According to the February 2024 IESP, the student benefitted from the use of graphic organizers, extra time, repetition, "consistent support, scaffolds," and prompts and cues (id.).
The February 2024 IESP indicated that the student "struggle[d] to answer higher order thinking questions" and had "difficulty making inferences and providing supporting details" (Parent Ex. D at p. 2). According to the February 2024 IESP, the student "ha[d] difficulty understanding math ideas altogether[,] even with many visual explanations" (id.). In addition, the February 2024 IESP described the student as "more concrete thinking" and noted she related more to "factual, concrete items" (id. at p. 3).
The February 2024 IESP indicated that the student "ha[d] difficulty focusing and [] often ha[d] her IEP provider sit next to her in class to make sure she [was] focusing on the lesson" (Parent Ex. D at p. 2). The February 2024 IESP stated that "[w]hen [the student] [was] unmotivated and unwilling" to attend in the classroom, "she bec[ame] very uncooperative, but [] remain[ed] respectful" (id. at p. 4). According to the February 2024 IESP, the student required "prompt[s] to do her class assignments" (id.).
According to the February 2024 IESP, the student had demonstrated "improve[ment] in her reading skills," "her ability to follow multi-step directions," and her "sentence structure and grammar skills" (Parent Ex. D at pp. 3-4). The February 2024 IESP indicated that, during the CSE meeting, the parent shared that, at that time, the student "ha[d] not [] received [s]peech services this year" (id. at p. 4). The February 2024 IESP reported that the parent and school did not share concerns related to the student's social or physical development, beyond the student's difficulty with her ability to focus and its impact on "her understanding of material" (id. at pp. 4, 5).
The following resources and strategies to address the student's management needs were included in the February 2024 IESP: break down of math questions; chunked information and multi-step directions; math questions read; visuals, manipulatives, and reference charts; positive reinforcement; on-task focusing prompts; reminders; directions broken down; graphic organizers and visuals; writing checklists; sentence starters; small group instruction; repetition; redirection; and scaffolds (Parent Ex. D at p. 5). The February 2024 IESP included annual goals that addressed the student's ability to complete a multi-step word problem; improve her focus and ability to follow directions; improve her computational skills; prepare a written response of three to four paragraphs; answer short response or higher-level critical thinking questions; determine the meaning of unknown words; and understand figurative language and predict outcomes (id. at pp. 6-8).
The February 2024 IESP recommended the student receive seven periods per week of group SETSS along with two 30-minute sessions per week of individual speech-language therapy (Parent Ex. D at p. 9). The February 2024 IESP also recommended testing accommodations that included extended time, separate location or room, revised test directions, and tests read (Parent Ex. D at p. 10).
2. Upgrade Resources and Urban Student Support
As noted above, on August 18, 2023, the parent contracted with Upgrade to provide services to the student for the 2023-24 school year (see Parent Ex. E). There is no other information in the hearing record regarding Upgrade. Instead, according to the affidavit of an Urban Student Support ("Urban") educational supervisor, for the 2023-24 school year, "[Urban] provide[d] [five] hours per week of [SETSS]" to the student, and after February 28, 2024, it provided "[seven] hours per week" of SETSS based on the February 2024 IESP (Parent Ex. J ¶ 11). During the hearing, the educational supervisor testified that the student's SETSS began on September 7, 2023 (Tr. p. 28).
Urban's educational supervisor included in her affidavit that the student's SETSS was provided "in a 1:1 setting" and "include[d] a great deal of specialized instruction" (Parent Ex. J ¶¶ 12, 17). She testified that "[a]lthough [the student] [wa]s mandated for group services, [the agency] was not able to locate a similarly situated group of students [and] [a]s such, [was] providing the services in a 1:1 setting" (Tr. pp. 30, 35; Parent Ex. J ¶ 12). During the hearing, the educational supervisor testified that the student's SETSS was "provided outside of the classroom" unless "the student need[ed] support" inside "the classroom" (Tr. p. 29). The educational supervisor further testified that the student's scores were two grade levels behind, which is why she "need[ed a] tremendous time outside of the classroom to be able to support her across all subjects" (Tr. p. 31).
Urban's educational supervisor testified in her affidavit that the student's SETSS provider was "certified by NYS to teach students with disabilities" and "trained and experienced to teach literacy and comprehension to school[-]aged children and adolescents" (Parent Ex. J ¶ 13). According to the certification included in the hearing record, the SETSS provider was certified to teach students with disabilities, birth to grade two (see Parent Ex. F at p. 1). During the hearing, the educational supervisor acknowledged that the provider's certification was for birth to grade two and that the student was in high school, but the educational supervisor stated that she "th[ought] that" the provider now "ha[d] all her requirements to have her all[-]grade license" and had "applied" (Tr. p. 33). The educational supervisor testified that the SETSS provider had "years of experience working with high school students who [we]re not on grade level" and was "Orton-Gillingham trained" (Tr. p. 33, 34-35).
According to her affidavit, the educational supervisor testified that, in addition to providing direct service to the student, the SETSS provider "prepare[d] for sessions, create[d] goals, wr[ote] progress reports, and me[t] with teachers and parents" (Parent Ex. J ¶ 14).[12] The educational supervisor testified that the student's "progress [was] measured through quarterly assessments, consistent meetings with the providers and support staff, observation of [the student] in the classroom, and daily session notes" (id. ¶ 18).
During the hearing, the educational supervisor from Urban testified that, to address the student's limited focus and motivation in the classroom, the SETSS provider "create[d] expectations of" appropriate "classroom behavior" before a session occurred in class (Tr. pp. 30-31). The educational supervisor further stated that the provider "support[ed] [the student] in the classroom helping her stay on task, focus, [and] take notes" (Tr. pp. 30-31).
A SETSS progress report, completed December 25, 2023, indicated that the student "demonstrate[d] significant academic delays" and "perform[ed] on a [seventh] grade level in reading, writing, and math" (Parent Ex. G at p. 1).[13] Further, the December 2023 SETSS progress report indicated that the student exhibited "delay[s] in the areas of processing, executive function, and social-emotional skills" (id.). The December 2023 SETSS progress report included that the student "receive[d] SETSS [five] times a week" to address her needs (id.).
According to the December 2023 SETSS progress report, the provider "use[d] visual, auditory[,] and kinesthetic learning to help [the student] achieve her current goals" (Parent Ex. G at p. 1). The December 2023 SETSS progress report described that the student "struggle[d] to comprehend the information" during reading tasks "and ha[d] difficulty applying and generalizing what she ha[d] learned to other tasks" (id.). The provider indicated in her December 2023 SETSS progress report that the student was "provided with frequent repetition and review" so she "retain[ed] the concepts she [] learned" (id.).
The December 2023 SETSS progress report included a statement that the student had difficulty "identify[ing] and understand[ing] the main idea and/or theme of a text" (Parent Ex. G at p. 2). The December 2023 SETSS progress report also indicated that the student had difficulty with decoding, read "in a monotone," and "struggle[d] to make inferences and predictions" (id.). To address the student's difficulties in reading, the report indicated that the provider chunked reading assignments, "summariz[ed] paragraph by paragraph," and "check[ed] for understanding" (id.). The December 2023 SETSS progress report described that the student exhibited "some progress" (id.).
In math, the December 2023 SETSS progress report indicated that the student was "missing some foundational math skills, which ma[de] it very difficult for her to learn and grasp grade-level math skills" (Parent Ex. G at p. 3). According to the December 2023 SETSS progress report, the student exhibited difficulty with "[c]omplex multiplication," "complex division," and word problems (id.). The December 2023 SETSS progress report indicated that the student "require[d] assistance [to] break[]" word problems "into parts" so that she could "decid[e] which operation to perform" (id.). The December 2023 SETSS progress report also noted that the student required "a great deal of demonstration, modeling[,] and visuals" (id.).
According to the December 2023 SETSS progress report, the student "perform[ed] on a [seventh] grade level in writing" (Parent Ex. G at p. 5). The December 2023 SETSS progress report included information showing the student often forgot to use "punctuation marks" and "capitalize the first letter of [a] sentence" (id.). Further, the December 2023 SETSS progress report indicated that the student "wr[ote] very long run-on sentences and d[id] not show an understanding of phrase boundaries" (id.). The December 2023 SETSS progress report noted that the student "struggle[d]" to organize her writing, and the provider indicated that she used "prewriting" as well as "graphic organizers and outlines" to assist the student (id.).
The December 2023 SETSS progress report characterized the student's progress as "incremental" (Parent Ex. G at pp. 1, 6). According to the December 2023 SETSS progress report, the student "require[d] a lot of practice to improve her learning habits and skills" in reading and writing and needed "to fill in the gaps and solidify her foundational skills" in math (id. at p. 7).
According to the February 2024 IEP, the student's first semester report card for the 2023-24 school year indicated the student received the following grades: living environment (75.6); art (65); global studies (64.9); parsha (41.7); algebra (62.2); life design (79.7); student integrity (71.2); and health (71.5), with an overall GPA of 1.9 (Parent Ex. D at p. 1).
During the hearing, the educational supervisor testified that the student had not received speech-language therapy until May 6, 2024 (Tr. pp. 28, 29, 37). The educational supervisor offered that she was unable to find a provider for the student until May "due to the schedule" (Tr. p. 28).[14] The educational supervisor testified that the parent was aware the agency was unable to find a speech provider until May, but the parent was "happy" that the agency "f[ound] her a SETSS provider" (Tr. pp. 37-38). The hearing record did not include information related to the student's speech-language therapy, and the educational supervisor acknowledged this during the hearing (Tr. p. 40).
The educational supervisor included in her affidavit that the student demonstrated "signs of progress with her service providers" (Parent Ex. J ¶ 19).[15] During the hearing, the educational supervisor testified that the student's "reading, writing, and math skills [] tremendously improved" as did her classroom participation (Tr. pp. 31-32, 34-35). In her affidavit, the educational supervisor testified that the student's current level of seven hours per week of SETSS should continue, and that she "would benefit from a bank of 2x30 minutes per week of [s]peech-[l]anguage [t]herapy for the 2023-24 school year" (Parent Ex. J ¶ 20).
Based on the available information, although the hearing record is limited, there is insufficient basis to overturn the IHO's finding that the SETSS delivered by Urban met the student's identified needs.
C. Equitable Considerations:
As part of its cross-appeal, the district asserts that equitable considerations do not support the parent's request for relief contending that the parent signed a contract with Upgrade prior to notifying the district of her intention to unilaterally obtain services for the student. With respect to equitable considerations, the parent appeals from the IHO's reduction of the awarded rate asserting that the IHO should have awarded $195 per hour for SETSS.
The final criterion for a reimbursement 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"]).
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., 758 F.3d at 461 [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., 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, 471 U.S. at 370-71 [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"]).
The IHO found that the American Institutes for Research (AIR) report submitted by the district "offer[ed] some basis to conclude that the SETSS rate [wa]s excessive and should be reduced" (IHO Decision at p. 7). As presented by the parent, the only issue for review on appeal is related to excessiveness of the costs for services. According to the parent, the IHO "reduced the rate for [SETSS]" and there was "no evidence to suggest that the rate of $195/hr is excessive" (Req. for Rev. at pp. 7-8).
Generally, an excessive cost argument focuses on whether the rate charged for the service was reasonable and requires, at a minimum, evidence of not only the rate charged by the unilateral placement, but evidence of reasonable market rates for the same or similar services. However, in reviewing the parent's claim it must be noted that the evidence presented shows that the provider who delivered the student's services, Urban, is a different entity from the agency the parent contracted with at a rate of $195 per hour for SETSS, Upgrade (see Parent Exs. E; H; J ¶3). Accordingly, while the parent's due process complaint notice included a request that the district fund services "at the providers' contracted rate" (Parent Ex. A at p. 3), there is no contract in the hearing record between the agency that delivered the student's services, Urban, and the parent. Additionally, it is worth noting that the parent did not identify either agency, Urban or Upgrade, by name at any point in the request for review, leaving it unclear as to who the parent expects the district to pay for the services delivered to the student. It is also worth noting that both Upgrade and Urban appear to use the similar logo design on their documents; however, they have different telephone numbers listed and it is not clear from the hearing record to what extent or how they may be related, if at all (compare Parent Ex. E at p. 1, with Parent Ex. H at p. 2). Further, in at least one other State level appeal decided prior to the hearing in this matter, there was confusion noted between these two agencies with a specific notation that the parent had contracted with one of the agencies but received services from the other (see Application of a Student with a Disability, Appeal No. 23-191). Considering all of the above, under the circumstances presented, there is no contract in the hearing record upon which to base a request for SETSS as a specific rate.
In Burlington, the Court stated that "[p]arents who unilaterally withdraw their child from the public school and thereafter seek tuition reimbursement for the[ir] child's private placement do so at their own peril," because they bear the financial risk, both as to tuition and legal expense, and the burden of demonstrating the appropriateness of their relief (471 U.S. at 373-74). Congress thereafter took action to emphasize the need for parents to be invested in the process of developing a public school placement for eligible students with disabilities by placing limitations on private school reimbursements under the IDEA (20 U.S.C. § 1412[a][10][iii]). This statutory construct is a significant deterrent to false or speculative claims (see Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 543 [2007] [Scalia, J., dissenting] [noting that "actions seeking reimbursement are less likely to be frivolous, since not many parents will be willing to lay out the money for private education without some solid reason to believe the FAPE was inadequate"]).
When the element of financial risk is removed entirely and the financial risk is borne entirely by unregulated private schools or agencies that have indirectly entered the fray in a very palpable way in anticipation of obtaining direct funding from the district, it has practical effects because parents begin seeking the best private placements possible with little consideration given to what the child needs for an appropriate placement as opposed to "everything that might be thought desirable by 'loving parents.'" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]). As the First Circuit Court of Appeals noted, "[t]his financial risk is a sufficient deterrent to a hasty or ill-considered transfer" to private schooling without the consent of the school district (Town of Burlington v. Dep't of Educ. for Com. of Mass., 736 F.2d 773, 798 [1st Cir. 1984], aff'd, Burlington, 471 U.S. 359, 374 [1985] [noting the parents' risk when seeking reimbursement]; see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247[2009] [citing criteria for tuition reimbursement, as well as the requirement of parents' financial risk, as factors that keep "the incidence of private-school placement at public expense . . . quite small"]). Further, proof of an actual financial risk being taken by parents tends to support a view that the costs of the contracted for program are reasonable, at least absent contrary evidence in the hearing record.
In this instance, the parent is seeking a specific rate for services based on a contract that is not with the agency that delivered services to the student. Accordingly, as there was no contract with Urban and the parent did not testify during the hearing, there was no evidence that the parent was financially obligated to pay for the SETSS. Moreover, the educational supervisor at Urban did not offer testimony to demonstrate an obligation on behalf of the parent. She merely testified that Urban delivered services to the student, describing those services, and that Urban charged $195 per hour for SETSS (Parent Ex. J ¶¶ 7, 11). In conclusion, as the hearing record does not support a finding that the parent had a financial obligation to pay for SETSS delivered by Urban, equitable factors do not support an award of relief in this matter.
Additionally, if equitable considerations did support some relief, they would not support the parent's request for $195 hour for SETSS. The IHO noted that the district submitted evidence in an attempt to establish a reasonable market rate for SETSS (see Dist. Ex.1). However, in considering the reasonableness of the rate charged by Upgrade, the IHO declined to rely on the October 2023 AIR report submitted by the district into evidence (IHO Decision at p. 7; see Dist. Ex. 1). Instead, the IHO cited reimbursement rates set by the State Education Department (SED) for providers operating school-age State-approved nonpublic schools, special act schools, or Board of Cooperative Educational Services (BOCES) programs to be funded by public tuition funding sources, which limit reimbursable nondirect costs to 35 percent of the reimbursable direct costs after adjustments (IHO Decision at p. 7). Based on this source, the IHO awarded SETSS at an hourly rate of $146.15 (id.).
Under the circumstances, it is not clear that the SED memorandum relied upon by the IHO was relevant or comparable to the question of how much a parent could reasonably bargain in a private arrangement with special education teachers in the New York City metropolitan area.[16] However, there is another basis for finding that the request for $195 per hour for SETSS was excessive and a lower hourly rate was supported.
The IHO did not articulate the basis for not relying on the AIR report in evidence (see Dist. Ex. 1). With respect to fashioning appropriate equitable relief and its relevancy, I agree that the AIR report and the district's arguments offer some basis to conclude that the SETSS rates charged by Upgrade or Urban 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 Upgrade or Urban. 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 is published. 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.
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.[17]
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).[18]
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.[19] I would take this into account if ordering equitable relief.
The educational supervisor testified that her agency was paying the provider $95 per hour (Tr. pp. 35). The educational supervisor testified that she did not have anything to do with the finances of her agency and she only had an "overall understanding" of what the overhead costs were in addition to the provider's salary (Tr. pp. 37, 40). According to the educational supervisor, the rate charged also covered "one-on-one supervision, educational resources and support, professional development and materials, employment taxes, administrative costs and overhead costs" (Parent Ex. J ¶ 8).
A rate of $95 per hour annualized is $111,150, respectively, and that figure is only slightly above the 50th percentile, thus the $95 per hour portion of the rate is not excessive. However, the amount of indirect costs above the teacher's hourly wage is $100 per hour or a little over 51 percent of the $195.00 hourly rate being requested. This falls far above the 27.7 percent in the USBLS data.
When considering the testimony described above, where the educational supervisor did not have a role within the agency regarding finances and only identified categories of indirect costs that factored into the hourly rate charged and did not did not present evidence of the actual costs 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 agency was seeking an excessive cost for the services delivered to the student 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 would generally be reasonable. Using 27.7 percent for overhead costs, when added to the $95 per hour salary would result in a rate of $131.40 per hour for SETSS, which is lower than the rate that was awarded by the IHO, and since the district did not challenge the IHO's determination of a rate of $146.19 per hour rate I would not disturb the IHO decision as to rate, though my reasoning would be different from the IHO.
Nevertheless, as noted above, the district did appeal from the IHO's equitable award and in reviewing equitable considerations in this matter, there is no contract in evidence to establish that the parent owes a financial obligation to Urban. Additionally, as noted above, the parent has not identified the agency for which she is requesting district funding. Accordingly, equitable considerations bar any funding to a specific agency in this matter, at any rate for services.
D. Pendency Compensatory Education
Finally, the parent argues that the IHO erred in not awarding compensatory education services to the student for services missed during pendency. The district argues there is no evidence in the hearing record to support the parent's request for a bank of compensatory education.
Primarily, the IHO held that the parent "did not present any testimony or evidence to support her request for compensatory relief" (IHO Decision at p. 10). The IHO reasoned that at the very least the parent was required to show that a deficit was created by the district for which compensatory education services were justified (id. at p. 9). The IHO reasoned that the parent did not establish by testimony or otherwise what mandated services the student either received or did not receive (id.). Moreover, the IHO found that at the very least the parent should have testified as to what services the student had not received (id. at n.8).
On appeal, the parent does not cite any document or testimony in support of the request for compensatory education services and instead attempts to rely on a document that was excluded from the hearing record to show that the student missed services during the pendency of this proceeding (see Req. for Rev. at pp. 9-10). More specifically, the parent submitted direct testimony by affidavit into evidence (Tr. p. 7). However, the parent did not appear for cross-examination when called (Tr. pp. 23-25). The district then moved for the exclusion of the parent's testimonial affidavit due to her failure to appear for cross-examination and, at the conclusion of the hearing, the IHO determined that the parent affidavit would be excluded from the hearing record (Tr. pp. 25-26, 43). The IHO reiterated this ruling in her final decision, noting that the parent failed to appear for the hearing and, as a result, the parent's affidavit was excluded (IHO Decision at p. 3). As noted above, this finding, the exclusion of the parent's affidavit from the hearing record, was not appealed from and, therefore, it is final and binding on the parties. Additionally, as the affidavit was not part of the hearing record, the parent's citation thereto is of little value.
I also note that during the impartial hearing the educational supervisor was asked repeatedly to provide additional information as to the speech-language therapy services being received by the student and was unable to do so (Tr. pp. 38-40). During the hearing there was no discussion between the parties as to where the student's pendency placement lay, however, I note that the record contains a Pendency Implementation Form singed electronically by the parties indicating "Pendency is uncontested and begins date the DPC was filed: [April 7, 2024]" (Pendency Implementation Form at p. 2). Moreover, the student began receiving SETSS on September 7, 2023 and speech-language therapy as of May 6, 2024 (Tr. p. 28). In its answer, the district asserts that the student is not entitled to compensatory pendency services because since the parent contracted with Upgrade for the delivery of SETSS, the parent took over responsibility for delivering services to the student for the 2023-24 school year. The dispute between the parties, as it arises in the pendency context on appeal, appears to be whether the student was entitled to pendency after the parent unilaterally obtained services from a private company.
The Second Circuit has held that where a district fails to implement a student's pendency placement, students should receive the pendency services to which they were entitled as a compensatory remedy (E. Lyme, 790 F.3d at 456 [directing full reimbursement for unimplemented pendency services awarded because less than complete reimbursement for missed pendency services "would undermine the stay-put provision by giving the agency an incentive to ignore the stay-put obligation"]; see Student X, 2008 WL 4890440, at *25, *26 [ordering services that the district failed to implement under pendency awarded as compensatory education services where district "disregarded the 'automatic injunction' and 'absolute rule in favor of the status quo' mandated by the [IDEA] and wrongfully terminated [the student's] at-home services"] [internal citations omitted]).
However, this is not a case in which a district was required to provide pendency services to the student and, having failed to have done so, an order of reimbursement for services the parent obtained or for compensatory make-up services from private providers (as opposed to district providers) may have been warranted (see E. Lyme, 790 F.3d at 456-57). If this were a situation in which a district was directly responsible for the actual delivery of services pursuant to pendency and there was a lapse in services, the appropriate relief would be compensatory or make-up services to remediate the deficiency as the Second Circuit indicated (see id.). However, that is not the circumstance presented here.
Having arranged for and agreed to the delivery of the services by the private agency, the parent elected to carry the responsibility for ensuring the delivery of the stay-put services, with the district remaining responsible only for funding the services so delivered. As such, the parent assumed the risk that unforeseen events would cause the terms of the pendency agreement to be undesirable. There is no allegation that the district failed to fund the student's pendency program or services or otherwise caused an interruption to the status quo.[20] Therefore, the district is not required to fund compensatory education to make-up for any missed services that resulted from the parent's choices.
VII. Conclusion
In summary, the parent sustained her burden to demonstrate the appropriateness of the unilateral services delivered to the student by Urban; however, the parent failed to show that she had a financial obligation for the services delivered and for the reasons set forth above, equitable considerations bar the requested relief. Although, the parent cannot recover under the Burlington/Carter framework with the lack of evidence presented in this case, I express no opinion regarding whether the provider of the services, Urban, could nevertheless recover from the district some or all of the costs of the services provided in a different, appropriate legal forum (i.e. quantum meruit, unjust enrichment or any other applicable legal theory).[21]
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's decision, dated December 13, 2024, is modified by reversing that portion which granted reimbursement or direct funding relief.
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 does not contain any information concerning the student's general education environment nor does it contain any information about what services, if any, she received subsequent to the development of the April 2022 IESP.
[4] The hearing record contains duplicate copies of the February 2024 IESP (compare Parent Ex. D with Dist. Ex. 2). Although the layout of the copies of the IESP differ slightly, the content and page numbers of both are the same (id.). For purposes of this decision, the parent's exhibit is cited and the IHO is reminded that it is her responsibility to exclude evidence that she determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).
[5] As an initial matter, the IHO denied the district's motion to dismiss based on subject matter jurisdiction (IHO Decision at p. 2). The IHO also excluded the parent's affidavit testimony from the hearing record based on the parent's failure to appear timely for the hearing (id.).
[6] In the due process complaint notice, the parent requested compensatory education for any services the student was entitled to under pendency but did not receive (Parent Ex. A at p. 3). However, pendency in this matter was based on the February 2024 IESP and included only SETSS and speech-language therapy services (May 22, 2024 Pendency Impl. Form; see Parent Ex. D). The hearing record does not indicate that the student was ever recommended for the services identified by the IHO—occupational therapy, physical therapy, or counseling—and it is not clear why the IHO addressed the parent's request for compensatory education as a request for those services.
[7] The parent submits additional evidence with her request for review. Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]). The parent's exhibits could have been offered prior to the impartial hearing, and, in any event, are not necessary to render a decision on this matter. Therefore, the additional evidence proffered by the parent will not be considered.
[8] The district objects to the request for review asserting that the verification, which was sworn under penalty of perjury, was not in proper form. In an exercise of my discretion, I decline the parent's pleadings on this basis.
[9] 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]).
[10] 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.
[11] 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 Upgrade Resources (Educ. Law § 4404[1][c]).
[12] The hearing record included a treatment plan created on a document bearing Urban's letterhead, which plan included goals for the student and indicated that two new goals were added based on the February 2024 increase in SETSS from five to seven periods per week (see Parent Ex. H).
[13] The SETSS progress report identified the name of the provider but did not identify what agency the provider worked for (Parent Ex. G).
[14] The hearing record included a teacher certification in the area of speech and language disabilities, but the educational supervisor clarified during the hearing that it was not for the individual who worked with the student beginning in May 2024 (Tr. pp. 28-29; see Parent Ex. F at p. 2).
[15] The educational supervisor's affidavit referred to "providers," even though at the point it was signed, March 2024, the student had not yet received speech-language therapy, and the information included in the affidavit focused specifically on SETSS (see Parent Ex. J). During the hearing, the IHO clarified with the educational supervisor that the student had not received speech-language therapy at the time the affidavit was signed (Tr. pp. 39-40).
[16] In terms of process, the IHO's approach of taking notice of the SED memorandum might have worked better had she discussed it with the parties and allowed them an opportunity to be heard. In her decision, the IHO provided a link to the website to access the memorandum (see IHO Decision at p. 7, n.7; "Tuition Setting Methodology for 2023-24 Rates for School-Age Providers Serving Students with Disabilities," Rate Setting Unit Mem. [June 2023], available athttps://www.oms.nysed.gov/rsu/Rates_Methodology/MethodLetters/documents/ 2023-24%20School-Age%20Methodology%20MemoFINAL.pdf).
[17] 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).
[18] 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 companies like Upgrade or Urban 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 herself of the opportunity to develop the record further regarding the indirect costs beyond that of the teacher's hourly wage.
[19] Using 6.5 hours results in approximately 1170 hours of instruction time for students during a school day, and similar to teachers, related services are typically provided to students on a similar schedule during the school day.
[20] As such, the circumstances here are distinguishable from the matter before the Second Circuit in Doe v. East Lyme Board of Education, wherein the district had ceased funding private services that it had previously funded and, therefore, interrupted the status quo, causing the parent to have to obtain the services she could afford and resulting in an award of compensatory education for the services that the parent did not fund (790 F.3d at 447, 456-57).
[21] Urban is not a school district or a parent within the meaning of State and federal regulations and, therefore, is not a proper party to a due process proceeding.