STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-040
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:
Gulkowitz Berger LLP, attorneys for petitioner, by Shaya M. Berger, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Cynthia Sheps, 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) fund the costs of her daughter's private services from Integrated Treatment Services (Integrated) for the 2024-25 school year. The district cross-appeals from that portion of the IHO's decision which granted, in part, the parent's request for funding for private services from Integrated for the 2024-25 school year. The appeal must be sustained. The cross-appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to 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]). 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). If disputes occur between parents and school districts, 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]; see Educ. Law § 3602-c[2][b][1]).
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 detailed facts and procedural history of the case and the IHO's decision will not be recited here in detail. Briefly, the student was the subject of a prior impartial hearing that resulted in an unappealed IHO decision dated August 2, 2023, which found that the district acted inappropriately in developing an IESP for the student given that the parent had not officially submitted an individualized home instruction plan (IHIP), the district failed to develop an IEP for the student, and that an appropriate educational placement for the student for the 2022-23 school year consisted of 25 hours per week of special education itinerant teacher (SEIT) services/special education teacher support services (SETSS) along with assistive technology and related services on a 12-month school year basis (Parent Ex. B at pp. 11-18, 21).
A CSE convened on the same date, August 2, 2023, to formulate the student's IEP for the 2023-24 school year (see generally Dist. Ex. 4). Finding the student eligible for special education as a student with multiple disabilities, the CSE recommended a 12-month school year program in a 12:1+(3:1) special class in a district specialized school with assistive technology and the following individual related services on a weekly basis: four 30-minute sessions of occupational therapy (OT), four 30-minute sessions of physical therapy (PT), four 30-minute sessions of speech-language therapy, and four 30-minute sessions of vision education services (id. at pp. 1, 18-20, 25-26). The IEP documented that, according to the parent and the student's primary care physician, due to the student's low immunity status and medical needs, the student could not attend school in-person (id. at pp. 4-5). According to the IEP, the parent was "applying for Home Instruction and require[d] a Public School Placement" (id. at p. 27).[1]
The hearing record includes a district form, signed by the parent on May 15, 2024, by which the parent purportedly informed the district that she intended to place the student at a nonpublic school at her own expense and wanted the district to provide dual enrollment special education services to the student for the 2024-25 school year (Parent Ex. G). The parent indicated that the student would attend school at her "[h]ome" (id.).
The parent executed agreements, effective July 1, 2024, with Integrated for the delivery of "1:1 Special Education Services" at a frequency of 25 hours per week (Parent Exs. C-D).[2], [3]
A. Due Process Complaint Notice
In an amended due process complaint notice dated July 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) and/or equitable services for the 2024-25 school year (Parent Ex. A).[4] The parent claimed that the district failed to develop an educational program for the student and failed to assign any providers to deliver services to the student for the 2024-25 school year (id. at p. 2). The parent asserted that the August 2023 IHO decision set forth an appropriate educational program and requested that the district be required to fund the delivery of that program through providers chosen by the parent for the 2024-25 school year at the rate charged by such providers "even if higher, or 'enhanced'" as compared to the district's "standard rate" (id. at pp. 1-2). The parent also sought "compensatory relief as may be appropriate based on the [district]'s failure to provide services to the student" (id. at p. 1).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on September 4, 2024 and concluded on November 6, 2024, after three days of proceedings (see Sept. 4, 2024 Tr. pp. 1-13; Oct. 1, 2024 Tr. pp. 14-89; Nov. 6, 2024 Tr. pp. 1-84). On October 1, 2024, the IHO "SO ORDERED" an agreement between the parties that the August 2023 unappealed IHO decision constituted the student's pendency placement (Order on Pendency).
In a decision dated December 11, 2024, the IHO found that the district failed to offer the student a FAPE for the 2024-2025 school year, as it did not develop an IEP for that year and failed to provide credible evidence of an educational placement (IHO Decision at p. 7). The IHO outlined and distinguished home instruction from home schooling and noted the confusion caused by the use of such terms interchangeably by the parties (id. at pp. 7-11). Next, the IHO found that the parent met her burden to prove that the unilaterally obtained services were appropriate and that the student made progress with the services (id. at p. 14). However, the IHO indicated that the evidence did not support the parent's request for 25 hours of SETSS per week because the attendance records showed that the providers did not deliver the services at that frequency (id. at p. 14).
With respect to equitable considerations, the IHO found the rate charged by Integrated to be reasonable and that the parent was financially obligated to the agency and aware of her obligation (see IHO Decision at p. 13). However, the IHO indicated that programming arranged for by the parent was not "home instruction" because the student was not enrolled in either a public or nonpublic school and that it was not appropriate for SETSS "to replace full time instruction" but instead should "supplement a preexisting educational program" (id. at pp. 15-16). Based on the foregoing, the IHO ordered the district to fund the SETSS already provided to the student at a rate not to exceed $150 per hour but, going forward, ordered the district to fund 15 hours per week of SETSS between the date of the IHO decision until the CSE next convened to develop an IEP for the student (id. at pp. 16-19). The IHO ordered the district to convene within 10 days to develop an IEP for the student (id. at pp. 17, 19). The IHO also found the student "entitled to" related services from providers of the parent's choosing at reasonable market rates and an assistive technology device for the 12-month 2024-25 school year, noting that the parent's representative agreed to receive related service authorizations (RSAs) related thereto (id. at pp. 17-18).
IV. Appeal for State-Level Review
The parent appeals and the district cross-appeals. The parties' familiarity with the particular issues for review on appeal in the parent's request for review, the district's answer and cross-appeal, the parent's answer to the cross-appeal, and the district's reply to the answer to the cross-appeal are also presumed and, therefore, the allegations and arguments will not be recited here.[5]
The following issues presented on appeal must be resolved in order to render a decision in this case:
- whether the IHO erred in determining that the parent met her burden to prove that the SETSS provided by Integrated were appropriate to address the student's needs;
- whether the IHO erred in finding that equitable considerations relating to the parent's failure to request home instruction from the district or arrange for home schooling warranted a reduction in the number of hours of SETSS to be funded by the district;
- whether the IHO erred by not weighing as an equitable consideration the parent's failure to provide the district with 10-days written notice of her intent to unilaterally obtain private services; and
- whether the IHO erred in ordering the district to fund related services by providers of the parents choosing and to provide the student with assistive technology.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
While 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]), the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]). However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[6] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[7] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; 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]). 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, 427 F.3d at 192). "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).
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., 694 F.3d at 184-85).
VI. Discussion
A. Characterization of Instruction in the Student's Home
The district has not appealed the IHO's determination that the district failed to offer the student a FAPE for the 2024-25 school year; accordingly, this finding have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
However, before turning to the issues presented on appeal, it is necessary to address the context from which this matter arises. That is, the IHO discussed the difference between home instruction and home schooling and, as discussed further below, found issues with the appropriateness of the unliterally obtained services and equitable considerations based thereon (see IHO Decision at pp. 7-11, 15-16).
The IHO discussed different manners in which a student may receive instruction at home or outside of school (see IHO Decision at pp. 7-11), focusing on situations where any student, disabled or not, may be home schooled by his or her parents (8 NYCRR 100.10), or may be eligible to receive homebound instruction if he or she is "unable to participate in their usual education setting" due to "a temporary or chronic physical, mental, emotional illness or injury" (8 NYCRR 100.22; see Educ. Law 3602[1][d]; 8 NYCRR 175.21[a]). As the IHO noted, these require some action by the parent such as, in the case of home schooling, submission of a notice of intent and completion of an IHIP form (8 NYCRR 100.10) or, in the case of homebound instruction, submission of a request that includes "written medical verification from the student's treating healthcare provider" (8 NYCRR 100.22[d][1]).
In addition to home schooling and homebound instruction, however, students with disabilities may receive home or hospital instruction as a placement on the continuum of services under the IDEA and its implementing regulations (20 U.S.C. § 1401[29][A]; 34 CFR 300.115[b][1]; 8 NYCRR 200.6[i]; see 8 NYCRR 200.1[w]). A recommendation for home or hospital instruction as a placement on the continuum requires a finding by a CSE that the student requires such a placement in order to receive educational benefit; in such a case, there is no requirement for a letter of intent or request from the parent (see 8 NYCRR 100.2[f] [noting that, if a CSE recommends home instruction for a student with a disability, the instruction should be provided notwithstanding the provisions in the regulations concerning homebound instruction]; see also "Home, Hospital, or Institutional Instruction Frequently Asked Questions," at p. 3 Office of Student Services [Jan. 2023], available athttps://www.nysed.gov/sites/default/files/programs/ student-support-services/home-hospital-or-institutional-instruction-faqs.pdf).[8] A school district may not avoid its obligation to provide home instruction to a student with a disability as a placement on the continuum by treating the placement as homebound instruction related to a medical condition (see In re New Jersey Dept. of Educ. Complaint Investigation C2012-4341, 2012 WL 4845648, at *4 [N.J. Super Ct. App. Div. Oct. 11, 2012]; see also Questions and Answers on Providing Services to Children with Disabilities During an H1N1 Outbreak, 53 IDELR 269 [OSERS 2009] [noting that, while students with disabilities have the same right to homebound services that nondisabled students would have under the same circumstances, a district has specific obligations toward students with disabilities, including an obligation to convene a CSE to change the student's placement and modify the contents of his IEP, if warranted]).
Here, the parent and her representative have not presented with clarity the type of instruction in the student's home that is at issue in this matter. During the impartial hearing, the IHO tried to clarify the circumstances surrounding the delivery of instruction to the student in the home to no avail as the parent's representative referred to the instruction as "not special ed," as requiring an IHIP, as being the parent's right, as being the responsibility of the district to provide, and as related to a student who was unable to attend school in person due to a medical condition, in essence invoking characteristics of all the scenarios discussed above (see Oct. 1, 2024 Tr. pp. 22-24, 39-49).
With respect to the evidentiary record, on the one hand, during the August 2023 CSE meeting, the parent advocated to the CSE that the student could not attend school in-person and the IEP indicates that the parent was "applying for Home Instruction and require[d] a Public School Placement" (Dist. Ex. 3 at pp. 4-5, 27).[9] On the other hand, leading into the 2024-25 school year, the parent purportedly communicated to the district that the student would be home schooled and that she sought special education services from the district (Parent Ex. G). Under New York State law, a student with a disability whose parent has submitted an IHIP for home schooling the student pursuant to State regulations is deemed to be a student enrolled in and attending a nonpublic school for the purpose of receiving special education services (Educ. Law § 3602-c[2-c]; 8 NYCRR 100.10). Ultimately, however, the IHO determined that the May 2024 request for dual enrollment services was not accorded evidentiary weight given the "confusing" content of the letter and the lack of evidence that the letter was sent to the district (see IHO Decision at p. 16 n.10; see also Parent Ex. G). On appeal, neither party has challenged the IHO's finding in this regard. The last educational program that the district developed for the student was an IEP, not an IESP (see Dist. Ex. 4). Beyond the May 2024 request for dual enrollment services, there is no other evidence in the hearing record that the parent did not want an IEP for the student for the 2024-25 year. Further, there is no dispute that the district did not develop either an IEP or an IESP for the student for the 2024-25 school year. Accordingly, the relief sought by the parent in this matter shall be examined in light of the district's failure to develop an IEP for the student, and the parent's desire for the district to provide the student a full-time home-based educational program under the IDEA, rather than as a denial of dual enrollment services.[10] As discussed below, the distinction is relevant to the IHO's analysis of the appropriateness of the services unilaterally obtained by the parent and equitable considerations.
B. Unilaterally Obtained Services
Turning to the unilaterally obtained services, a private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see 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. The Student's Needs
While not at issue in this case, a review of the student's needs and then-current levels of functioning will provide the necessary context for addressing the issue to be resolved, namely whether the unilaterally obtained services were appropriate. The hearing record includes an August 2023 IEP, an accompanying August 2023 prior written notice, and a March 2024 progress report which provide insight into the student's needs and abilities leading into the 2024-25 school year at issue (see Parent Ex. K; Dist. Exs. 4-5).
The August 2023 IEP present levels of performance indicated that the student was nine years old, and included assessment results from a 2016 bilingual psychological evaluation, which found the student within the "extremely low" range in areas of cognitive functioning and in the "low" range in areas of adaptive behavior (Dist. Ex. 4 at pp. 1-2). The IEP also stated that the student was nonverbal, understood receptively in both English and Yiddish, and that services were provided in English (id. at p. 1).
According to evidence in the hearing record, an April 2023 SEIT progress report was reviewed and discussed at the August 2023 CSE meeting and reporting from the progress report was reflected in the IEP present levels of performance (Dist. Exs. 4 at pp. 2-5; 5 at p. 2). The August 2023 IEP present levels of performance stated that the student presented with global delays in all areas, was inconsistent in answering yes/no questions or questions related to a story, was unable to make a prediction or sequence three to four picture cards related to a known story, was inconsistent in identifying shapes, and had great difficulty identifying animals with their sounds (Dist. Ex. 4 at p. 2). The August 2023 IEP stated that the student was unable to demonstrate awareness of the relationship between sounds and letters, did not isolate and pronounce the initial sounds in words, was beginning to recognize and name the letters of her name, and had learned to sound out her name with minimal prompting (id.). The student was able to identify what belonged in a big/small category when presented with stark contrasts but was not able to sort by category, was unable to identify first and last related to order and position, and understood the concepts of big/small/tall but not full/empty, heavy/light, and back/front (id.). Quantitatively, the student was working on identifying numbers one through four and was able to give "one" with a choice of many but was not able to give "two" or "three" (id.). Additionally, the IEP indicated that the student required constant repetition when learning new concepts, learned best through hands-on activities and "movement and motions," and had difficulty staying focused (id.).
The student's SEIT provider reported that the student's strengths were in the areas of literacy skills, and that she enjoyed listening to stories, enjoyed learning, and was starting to take pride in her work (Dist. Ex. 4 at p. 2). The SEIT provider added that, as the student got older, "the gaps [we]re widening much more" and that her expressive language was very low, and her field of vision was limited (id. at p. 3). According to the August 2023 IEP, the parent shared that the student "love[d]" having books read to her and "love[d]" learning shapes, sorting, doing puzzles, the ABCs and numbers (id. at pp. 2-3). The parent expressed that the student was "almost 10" and was "way, way, way below" children her age, but also noted that "[o]n her level," the student was advancing quickly and doing "phenomenally" (id. at p. 3).
With respect to social development, the August 2023 IEP's present levels of performance stated that the student was able to initiate interactions with peers by waving to them, could comply with a request with minimal prompting and verbal reinforcement, and could listen to a story until completion, but did not share with peers, play cooperatively, or express her feelings, needs, opinions, or desires (Dist. Ex. 4 at p. 3). In addition, the student would bite her hands when she was frustrated or excited, needed reminders to stay focused and have a calm body, did not role play, and did not initiate interactions with others, but did respond to the interactions of others (id.). Regarding play skills, the August 2023 IEP stated that the student was able to imitate adult behavior during play, was able to build a small structure, but could not carry out a three-part sequence during play (id.). It was further noted that the student's play with simplistic and short and that she did not engage in "pretend" play (id.). The parent shared concerns that the student was not verbalizing and could not "really" play by herself (id. at p. 4). The SEIT provider added that the student could express "wants" with prompting and that she could do some basic signs such as "more" and "drink" (id.).
Regarding the student's physical development, the SEIT provider stated that, in the area of gross motor skills, the student was able to walk upstairs using alternating feet and could jump in place, but was unable to walk downstairs using alternating feet, did not run smoothly, and was unable to catch a ball (Dist. Ex. 4 at pp. 4-5). With respect to fine motor skills, the SEIT provider reported that the student was able to draw a vertical line and string beads with positive reinforcement but was unable to build a six-block tower, grasp pencils and crayons correctly, or color within the boundaries (id. at p. 5). She added that the student had strabismus and that her visual field was limited (id. at p. 3). The August 2023 IEP included reporting from the student's doctor that the student had been diagnosed with "Jacobson-like syndrome chromosomal translocation," developmental delays, "failure to thrive," and chronic aspiration and that the student was G-tube dependent (id. at p. 4). The doctor added that, due to the student's low immunity status, she was susceptible to frequent infections and that at the then-current time, it was best that the student refrain from attending school in-person (id.). The parent shared that the student was "on a g-tube and many meds," required a "24/7 nurse" for feeding tube and aspiration risk, had a "very weak" immune system and would get sick quickly, and that the student could not attend school (id. at pp. 4-5).
The director from Integrated (director) testified that the agency did not do any formal testing of the student to start the 2024-25 school year but added that the March 2024 progress report was used in "crafting" a plan for the student for the 2024-25 school year and would have been used as the "instructional program" for the period beginning in July 2024 (Nov. 6, 2024 Tr. pp. 16, 23-24). The March 2024 progress report included much of the same reporting found in the August 2023 IEP present levels of performance with a few notations of improved skills (compare Parent Ex. K at pp. 1-2, with Dist. Ex. 4 at pp. 2-5). Regarding the student's academic development, the progress report indicated that the student was beginning to demonstrate awareness of the relationship between sounds and letters, understood the "concept" of back and front, and had learned to produce approximations of the animal sounds for the cow, sheep, and duck (Parent Ex. K at p. 1). With respect to her social development, the progress report included the notations that the student had learned to answer an approximation of "yes" and "no" when someone asked if she wanted something, was able to continue working on an activity that was difficult following verbal validation and positive reinforcement, and had learned to express certain feelings, needs, opinions, and desires by using an assistive technology device with moderate cuing (id. at p. 2). Regarding physical development, the progress report stated that the student had learned to catch and throw a ball, play small games like "freeze dance" and "Patty Cake," grasp pencils and crayons correctly (although she lost the grip easily when coloring), and was learning to color within the boundaries and pick up small objects by using a pincer grasp (id.). The March 2024 progress report stated that the student's performance was "highly inconsistent" daily, was contingent on how she physically and emotionally felt, and that she had difficulty regulating her emotions and regressed when there was a lapse in services over a holiday or even an extended weekend (id. at p. 13).
The director testified that the student was medically fragile and that the services had always been delivered in the home (Nov. 6, 2024 Tr. p. 25). She added that it was her understanding that for the 2024-25 school year the parent requested that all of the services be provided in the home (Nov. 6, 2024 Tr. p. 26). The director testified that she thought the student was on a feeding tube and that there was a nurse in the house at all times because of the student's medical condition (Nov. 6, 2024 Tr. p. 33).
2. Specially Designed Instruction
Initially, the IHO made certain determinations in the context of equitable considerations that relate more directly to the appropriateness of the services unilaterally obtained by the parent.[11] In particular, the IHO noted the lack of a base program for the student of home instruction or home schooling and found that it was not appropriate for the SETSS arranged for by the parent to constitute the student's entire educational program (IHO Decision at pp. 15-16). However, as discussed above, to the extent the district failed to offer the student an IEP in this matter, it was not unreasonable for the parent to unilaterally arrange for the student to receive home-based special education instruction to represent the entirety of the student's academic instruction. As for the IHO's characterization that SETSS "cannot be used to replace full time instruction and should be used to supplement a preexisting educational program" (IHO Decision at p. 16), there is no support for that understanding in the hearing record or in law or regulation. The term SETSS is not defined in the State continuum of special education services (see NYCRR 200.6), and, as noted in prior State-level administrative decisions, the term is not used anywhere other than within this school district, 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). As the term is not defined in the record, the IHO's determination that SETSS could not "be used to replace full time instruction" is without support.
Turning to the services provided, the Integrated director testified that her agency had been employed by the parent to provide SETSS for the student for 25 hours per week for the 2024-25 school year (Parent Ex. E; see Parent Exs. C-D). The director testified that the agency had been providing services to the student since she was a "preschooler" (Nov. 6, 2024 Tr. p. 25). The director testified that the two providers delivering the student's services were both licensed by the State of New York and authorized by the district to provide the SETSS (Parent Ex. E; see Parent Ex. H at pp. 1-6). According to the director, the same providers had delivered the student's services for "a really long while now" (Nov. 6, 2024 Tr. pp. 32-33).
The director indicated that the agency was providing the 25 hours per week in the student's home beginning on July 8, 2024 and would continue through June 30, 2025 (Parent Ex. E). Monthly billing and attendance reports show the student was receiving between eight and ten hours per week of services from July 14, 2024 through August 1, 2024, and between 19 and 24 hours per week of services from August 5, 2024 through August 23, 2024, and that she received four hours of services on Monday August 26 (Parent Ex. I at pp. 1-6).[12] The hearing record does not include billing and attendance reports for the period after August 2024.
As noted above, the director indicated that Integrated developed a plan for the student for the 2024-25 school year based on the March 2024 progress report (Nov. 6, 2024 Tr. p. 16). The March 2024 progress report identified several annual goals for the student with short-term objectives targeting the student's ability to follow commands, attention and awareness, self regulation, cognition and knowledge skills, pre-writing skills, quantitative skills, expressive and receptive language skills including use of her communication device, phonological awareness skills, gross and fine motor and sensory motor skills, visual motor and perception and functional vision skills, and strength and coordination (Parent Ex. K at pp. 2-13).
July 2024 session notes indicate that the SETSS providers worked with the student on signing or speaking "Yes" or "No" to answer "wh" questions, producing "no" to indicate rejection of an object or action, imitating modeled phonation, demonstrating awareness of the relationship between sounds and letters, isolating and pronouncing the initial sounds in words, "babbling along" and attempting to count the numbers one through five, and giving "one more" and "two more" blocks (Parent Ex. J at pp. 1-13). They also worked on identifying the colors red/yellow/green, matching like objects, identifying farm animals and their sounds, participating in all the tasks and activities, staying focused on a structured task independently, and continuing to work on a challenging task (id.). With respect to the student's social development, the providers worked with the student on responding to yes/no interrogatives, recognizing her own name, initiating interactions with peers, following a "very basic" command, showing pleasure in simple games and activities, showing interest in books with texture or moveable parts, participating in 1:1 table-top activity with noise in the background, waiting for a desired object/activity or for her turn, and requesting an object by saying "I want" (id.). Regarding physical development, the providers worked with the student on focusing on a stimulating object, throwing a tennis ball, catching a medium sized ball, performing movements with objects, walking up a flight of stairs using a step-to pattern, responding physically to action of others, making vertical and horizontal lines, rolling play dough to strengthen hand muscles in preparation for writing, pulling her socks up with hand over hand assistance, stacking two small blocks, and building with "Magna tiles" (id.).
According to August 2024 SETSS session notes, the providers worked with the student on many of the same skills which were addressed in July, with the addition of focusing on a one minute story, producing an action word about what is being done/what might be done/what the child wants other to do, saying a word indicating possession of an object, following two-step related directions, demonstrating awareness of the relationship between sounds and letters, and identifying a circle, square, triangle, rectangle, star, and heart (Parent Ex. J at pp. 14-40). Regarding the student's social development, the providers worked on exchanging eye contact, identifying emotions happy/sad/frustrated/excited/scared, smiling in response to an auditory and/or tactile stimulation, and refraining from hurting herself and others when upset (id.). In the area of physical development, the providers worked with the student on obtaining an object after watching it being hidden, tracking a stimulating object in all directions, grasping a marker with fingers and producing markings on paper, walking down a flight of stairs using a step-to pattern, remaining seated throughout a task, walking 30 feet independently, pulling her socks off independently with hand over hand assistance, and transferring an object from one hand to the other when presented with a different object (id.).
Within an October 15, 2024 present functioning and educational plan developed for the student by Integrated for the 2024-25 school year, one of the student's providers stated that her "Educational Plan for this year" was to implement an enriched literacy program and that she wanted to teach the student to identify all the alphabet letters, produce the sounds of the letters, and name some of the letters (Parent Ex. N at p. 1). The same provider also prepared an October 15, 2024 progress report that detailed the student's needs and identified goals for the student to address (Parent Ex. O). The report detailed that, for academic development, hands-on activities and movement were emphasized (id. at pp. 1-2). Sensory motor movement activities were used to improve focus, and repetition and multisensory activities were employed for retention (id.). Positive reinforcement and modeling were also key strategies (id.). In social development, modeling, prompting, and social stories were implemented to enhance the student's social skills (id. at p. 2). For physical development, adaptations such as using Jumbo Crayons and engaging in physical activities like Freeze Dance were utilized (id. at p. 3). Additionally, gradual assistance was provided in gross motor skill exercises, such as walking downstairs with support (id.).
While the district argues that the SETSS providers did not address the student's OT, PT, and speech-language therapy needs, parents need not show that a unilateral placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). Further, the evidence described above indicates that the providers focused to some degree on the student's language, physical, and motor needs. The district appears to acknowledge this in arguing that there was no evidence that the SETSS providers were licensed occupational therapists, physical therapists, or speech-language therapists. However, it is well-settled that a parent need not engage the services of a providers certified or licensed by the State in order to qualify for reimbursement or direct funding of those services (Carter, 510 U.S. 7, 14 [noting that unilateral placements need not meet state standards such as state certification for teachers]). During the impartial hearing, the district did not cross-examine Integrated's director regarding the propriety of the SETSS providers working on the student's OT, PT, or speech-language therapy goals or otherwise attempt to elicit evidence on the topic. Further, on appeal, the district does not identify a specific goal or area of need that was left unaddressed by the student's providers. Taking into account the totality of the circumstances, in this instance, I do not find the lack of related services to be fatal to a finding of appropriateness of the unilaterally obtained programming.
The district does not identify any other grounds for disturbing the IHO's determination that the parent met her burden to demonstrate the appropriateness of the SETSS provided by Integrated and that the student made progress (IHO Decision at pp. 12-14). Based on the foregoing, the evidence in the hearing record demonstrates that the instruction provided by Integrated was tailored to address the student's specific needs.
C. Equitable Considerations
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"]).
In finding that equitable considerations warranted a reduction in the number of hours of SETSS to be funded by the district in this matter, the IHO noted the parent's purported failure to submit a request for homebound instruction with supporting documentation (see IHO Decision at p. 15); however, contrary to the IHO's determination, I find no evidence that the lack of such a request impeded the district's ability to offer the student a FAPE for the 2024-25 school year. As alluded to above, the district remained obligated to develop an educational plan for the student with or without a request from the parent for homebound instruction. It seems that the parent has struggled with respect to the best way to go about obtaining instruction for the student in the home since at least the 2022-23 school year (see Parent Ex. B), but there is no indication that the parent has acted with intent to obstruct the district's efforts to meet its obligations under the IDEA.
As to the district's argument that the parent failed to provide 10-day notice, reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
Here, the district correctly notes that the hearing record does not include evidence that the parent provided the district with 10-day written notice stating the parent's intent to unilaterally obtain private services. However, the parent asserts that she was not required to provide 10-day notice because there was not IEP in place to reject and, further, that the district did not present evidence that it provided the parent with the procedural safeguards notice. The IDEA provides that an award of reimbursement may not be reduced or denied if the parent did not receive a procedural safeguards notice (20 U.S.C. § 1412[a][10][C][iv][I][bb]; 34 CFR 300.148[e][1][ii]; see 20 U.S.C. § 1415; 34 CFR 300.504). Ultimately, there was no argument or allegation during the impartial hearing regarding either the lack of 10-day notice or a lack of procedural safeguards notice or prior written notice. Given the lack of discussion during the impartial hearing and the undeveloped state of the hearing record, it would be imprudent to reduce the award of district funding for the unilaterally-obtained services based solely on the absence of a 10-day notice. This is particularly so, as the district has not responded to the parent's assertion that the lack of a procedural safeguards notice warrants a finding that a 10-day notice was not required.
D. Related Services
As a final matter, the district cross-appeals the IHO's award of related services by a provider of the parent's choosing and provision of assistive technology. The district argues that the award was error because the district was not required to implement the related services in the August 2023 IEP given the parent's rejection of the IEP and decision to unilaterally obtain services for the student. However, there is no indication in the IHO's decision that an obligation for the district to implement the August 2023 IEP was the basis of her finding that the student was entitled to district funding of related services and provision of assistive technology or that the IHO ordered the district to implement portions of the IEP. In the body of the decision, the IHO noted that the district did not present evidence or testimony regarding related services and that the parent agreed to receive RSAs from the district to resolve any outstanding issue pertaining to related services; on that basis, the IHO stated the student's entitlement to related services and assistive technology (see IHO Decision at pp. 17-18). Thus, the IHO appeared to state the student's entitlement to the services as either reflecting agreement between the parties regarding pendency or regarding the ultimate relief in the matter.[13] The district does not challenge the IHO's finding of the student's entitlement to related services and assistive technology as pendency or as a form of relief to remedy the district's failure to offer the student a FAPE for the 2024-25 school year. Accordingly, I find insufficient grounds stated to disturb the IHO's finding. Moreover, as the IHO noted, during the impartial hearing, the parties appeared to agree that the district would provide the parent with RSAs to obtain related services and that RSAs had been issued (see Oct. 1, 2024 Tr. pp. 31, 34, 70; Nov. 6, 2024 Tr. p. 72).[14] In addition, in its answer with cross-appeal, the district acknowledges that RSAs were issued (see Answer ¶ 10). At this juncture, the school year is almost complete; therefore, even if the district had raised a substantive challenge to the IHO's finding about the student's entitlement to district funding of related services, the dispute is essentially moot.
VII. Conclusion
In summary, the evidence in the hearing record establishes that the parent met her burden to prove that the unilaterally obtained SETSS delivered to the student by Integrated during the 2024-25 were appropriate for the student and that equitable considerations support an award of district funding for the costs of up to 25 hours per week of SETSS. Further, there is no basis to disturb the IHO's finding with regard to the student's entitlement to district funding of related services.
THE APPEAL IS SUSTAINED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the IHO's decision, dated December 11, 2024, is modified by reversing that portion which found that equitable considerations warranted a reduction of the relief sought by the parent; and
IT IS FURTHER ORDERED that the district shall fund the costs of up to 25 hours per week of SETSS delivered to the student by Integrated during the 2024-25 school year upon submission of proof of delivery.
Footnotes
[1] The student's eligibility for special education as a student with multiple disabilities is not in dispute (see 34 CFR 300.8[c][7]; 8 NYCRR 200.1[zz][8]).
[2] At times in the hearing record, the services provided to the student by Integrated during the 2024-25 school year are interchangeably referred to as SETSS, SEIT services, or, more broadly as in the contract, as "1:1 Special Education Services" (see Parent Ex. C). For purposes of this decision, unless otherwise relevant to the context, the services will be referred to as "SETSS."
[3] Integrated has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[4] The parent's original due process complaint notice was dated July 11, 2024 (Parent Ex. L). According to the district's certification of the record, the amended due process complaint notice was received by the district on July 26, 2024.
[5] The district also argues that the parent's pleadings should be rejected for failing to comply with the practice regulations. I have reviewed the pleadings, and I decline to reject the parent's request for review or answer to the cross-appeal on the grounds stated by the district.
[6] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[7] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[8] The guidance document from the Office of Student Support Services is also included in the hearing record as IHO exhibit I.
[9] During the impartial hearing, the district's counsel indicated that this statement reflected that the parent had, at that time, not been planning to home school the student through an IHIP and, instead, sought "[h]ome instruction" provided to the student virtually "from a public school placement" (Oct. 1, 2024 Tr. p. 45).
[10] In the August 2023 IEP developed for the year prior, the CSE purportedly considered "[h]ospital [i]nstruction" for the student but found it "too restrictive" and unnecessary despite the student's "significant medical needs"; conspicuously omitted from the options considered by the CSE, however, was home instruction as a placement on the continuum (Dist. Ex. 4 at p. 27).
[11] The Second Circuit Court of Appeals has held, it is error for an IHO to apply the Burlington/Carter test by conducting reimbursement calculations that are based on the IHO's analysis of the appropriateness of the unilateral placement (A.P. v. New York City Dep't of Educ., 2024 WL 763386 at *2 [2d Cir. Feb. 26, 2024] [holding that the IHO should have determined only whether the unilateral placement was appropriate or not rather than holding that the parent was entitled to recover 3/8ths of the tuition costs because three hours of instruction were provided in an eight hours day]). The Court further reasoned that "once parents pass the first two prongs of the Burlington-Carter test, the Supreme Court's language in Forest Grove, stating that the court retains discretion to 'reduce the amount of a reimbursement award if the equities so warrant,' suggests a presumption of a full reimbursement award" (A.P., 2024 WL 763386 at *2 quoting Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 [2009]). The IHO should not have considered issues relating to the appropriateness of the unilaterally obtained SETSS in the analysis of equitable considerations.
[12] Looking at the billing and attendance records for July and August 2024, the director testified that it was "very confusing" and added that she "might be looking at a compensatory bill and at a regular bill" and that she did not think it captured the full hours (Nov. 6, 2024 Tr. pp. 39-40; see Parent Exs. I at pp. 1-6; J at pp. 1-40). She also stated that they only billed for the "time given" (Nov. 6, 2024 Tr. p. 41).
[13] The IHO did not address related services in the ordering clauses in the decision (see IHO Decision at pp. 18-19).
[14] The district agreed that the student's pendency placement consisted of 25 hours per week of SETSS and four individual 30-minute sessions per week each of OT, PT, speech-language therapy, and vision education services, as well as the provision of assistive technology (see Order on Pendency). Further, in correspondence to the Office of State Review requesting extensions of time to submit the hearing record and responsive pleadings, both parties represented that the student was being educated at home and receiving services pursuant to pendency.