STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-051
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Law Office of Anton G. Cohen, P.C., attorneys for petitioner, by Anton G. Cohen, 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 found that she failed to meet her burden to prove the appropriateness of services she unilaterally obtained for her son for the 2024-25 school year. Respondent (the district) cross-appeals from the IHO's finding that pendency for this matter lies in a previous, unappealed IHO decision, dated May 24, 2024. 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 will not be recited here in detail.
Briefly, the student began receiving services at age two, through the Early Intervention Program (EIP) (Parent Exs. C at p. 4; N ¶ 2). Although the hearing record is not clear as to whether the student received services during preschool, when the student transitioned to school age services, the CSE determined that he was eligible for special education as a student with a speech or language impairment and recommended that he receive integrated co-teaching (ICT) services along with speech-language therapy and occupational therapy (OT) (Parent Exs. C at p. 4; N ¶ 3). The student attended a district school during the 2021-22 and 2022-23 school years (Parent Ex. N ¶ 3). According to the parent, the student had difficulty with academics and "became anxious and oppositional to learning" (id.). At the end of the 2022-23 school year, the district informed the parent that the student had not met the standards for promotion and was recommended to repeat first grade (id.).[1] The parent decided to provide the student with home instruction and on September 8, 2023, a CSE convened to develop an IESP for the student (id. ¶ 4). The parent recalled that the September 2023 CSE recommended a 10-month program for the student consisting of seven periods of special education teacher support services (SETSS) per week, three 30-minute sessions of group speech-language therapy per week, and two 30-minute sessions of individual OT per week (id.). The parent testified that the student began receiving SETSS from Dyslexia Associates in September 2023 (id. ¶ 6).[2]
On or about February 13, 2024, the parent obtained an independent bilingual neuropsychological evaluation of the student pursuant to a December 13, 2023 interim order in a prior proceeding related to the 2023-24 school year (Parent Exs. C at p. 3; N ¶¶ 5, 7; see Dist. Ex. 4). The evaluator recommended that, until an appropriate school placement is located for the student, the student should receive a 12-month extended school year (ESY) program consisting of 15-20 hours of specialized one-to-one instruction per week, five 30 to 45-minute sessions of individual bilingual speech-language therapy per week, three 30 to 45-minute sessions of individual OT per week, and two 45 to 60-minute sessions of social skills group therapy (Dist. Ex. 4 at p. 13).
The CSE convened on March 18, 2024 to review the findings of the neuropsychological evaluation, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP for the student with an implementation date of April 3, 2024 and a projected annual review date of March 18, 2025 (Dist. Ex. 1).[3], [4] The March 2024 CSE recommended that the student receive seven periods of SETSS per week, three 30-minute sessions of group speech-language therapy per week, and two 30-minute sessions of group OT per week (id. at pp. 14-15).[5]
On April 1, 2024, the parent signed an agreement with FirstRowe Speech Pathology, PC for delivery of three 30-minute sessions per week of speech-language therapy services to the student at a rate of $195 per hour (Parent Ex. J).
In a previous, unappealed IHO decision, dated May 24, 2024 , the IHO found that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year by failing to demonstrate that the district had sufficient evaluative information in creating the student's IESP for that school year and in failing to implement the IESP it developed for the student (Parent Ex. C at pp. 9-10). As a remedy for the district's denial of FAPE, the IHO awarded the student compensatory education consisting of district funding for 20 hours per week of SETSS and a bank of 54 hours of speech-language therapy and 54 hours of OT (id. at p. 16).
On or about May 30, 2024, the parent provided the district with a request for equitable services indicating that she would be providing the student with home instruction for the 2024-25 school year (Dist. Ex. 3).
In a letter dated June 17, 2024, the parent provided the district with notice of her intent to unilaterally place the student in a "private school and/or private special education program" at district expense (Parent Ex. B at p. 1). In her June 17, 2024 letter, the parent asserted that the district had not convened a CSE meeting to develop an educational program after completion of the February 2024 neuropsychological evaluation (id. at p. 2).
On June 30, 2024, the parent entered into a contract with Dyslexia Associates, Inc. for delivery of 840 hours of 1:1 SETSS using Orton-Gillingham methodology for the 12-month 2024-25 school year at a rate of $175 per hour (Parent Ex. G).
A. Due Process Complaint Notice
In an amended due process complaint notice, dated August 2, 2024, the parent alleged that the district failed to offer the student a FAPE for the 2024-25 school year by failing to convene a CSE meeting to develop an IEP or an IESP to provide the student with an appropriate educational program and placement for the 2024-25 school year (Parent Ex. A at p. 2).[6] Additionally, the parent alleged that the district failed to provide the parent with a prior written notice, school location letter, or notice of placement recommendation on or before the beginning of the 2024-25 school year (id.).
As relief, the parent requested reimbursement or direct funding of the costs of the privately obtained SETSS, speech-language therapy, and OT for the 12-month 2024-25 school year "at the prevailing market rates" (id. at p. 3).
B. Impartial Hearing Officer Decision
After prehearing conferences were held on August 2, 2024, September 4, 2024, and October 7, 2024, an impartial hearing convened and concluded before the Office of Administrative Trials and Hearings (OATH) on October 31, 2024 (Tr. pp. 1-42; Oct. 31, 2024 Tr. pp. 1-92).[7] In a decision dated December 18, 2024, the IHO determined that the district failed to provide the student with a FAPE on an equitable basis and the parent failed to establish the appropriateness of the unilaterally obtained services (IHO Decision at pp. 10-19). Initially, the IHO noted that neither the district nor the parent followed the proper procedures leading up to the 2024-25 school year, faulting the parent for not properly notifying the district that she intended to provide the student with home instruction and for not providing the district with a required home instruction plan and the district for not following through with requiring that a home instruction plan be in place for the student despite knowing that the parent intended to provide the student's instruction at home (id. at pp. 7-10). Additionally, the IHO determined that the student was not entitled to an IEP for the 2024-25 school year and was only entitled to equitable services through an IESP (id. at p. 11). Moving to the merits of the case, the IHO found that the district failed to provide the student with a FAPE on an equitable basis for the 2024-25 school year because there was insufficient basis in the hearing record to support the appropriateness of the March 2024 IESP and, regardless, the district failed to implement the recommended SETSS and related services (id. at pp. 10-14).
The IHO then found that the parent had failed to establish the appropriateness of her unilateral placement (IHO Decision at pp. 15-18). The IHO noted that the parent disagreed with the March 2024 IESP and unilaterally elected to implement the student's program as outlined in the May 2024 IHO decision, which included 20 hours per week of SETSS on a 12-month basis (id. at p. 16). The IHO found that SETSS was not an appropriate program for the student and SETSS was meant to support the student's general education program (id. at pp. 16-18). The IHO noted that although she requested information about the student's education plan both during and after the hearing, there was insufficient evidence in the hearing record regarding what education or program the student was actually receiving as part of his home instruction plan (id. at p. 16). The IHO noted that the student's home instruction program included "at most 22.5 hours per week" and, based on the limited evidence received, the IHO found that the program was not appropriate (id. at pp. 16-17). Additionally, the IHO found that the student was not entitled to receive special education and related services on a 12-month basis because the parent never requested 12-month services in her 10-day notice letter and there was no evidence that the student experienced substantial regression during the summer months (id. at pp. 18-19).
The IHO went on to address equitable considerations, finding that, even if the parent had demonstrated the appropriateness of her unilateral placement, equities would warrant a reduction in the relief awarded (id. at p. 22). The IHO ruled that the frequency of the services requested for the student were excessive because there was evidence in the hearing record that the student made progress with seven hours per week of SETSS (id. at p. 23). The IHO ruled that if the parent had proven the appropriateness of SETSS, the student would only be entitled to receive 10 periods per week of SETSS (id.). The IHO also found that the parent's failure to provide the district with notice of intent to deliver a home instruction program to the student warranted a reduction in the enhanced rates requested for speech-language therapy, reducing the awarded rate from $195 to $175 per hour (id.).
The IHO ordered that within 10 calendar days of her decision, the district shall provide the parent with a copy of 8 NYCRR §100.10 and a form on which to submit an individualized home instruction plan (IHIP); additionally, the parent was ordered to submit an IHIP to the district pursuant to 8 NYCRR §100.10 within 20 calendar days of the receipt of the regulations from the district (id. at p. 24). The IHO further ordered the CSE reconvene within 25 calendar days of the receipt of the parent's completed IHIP (id. at p. 25).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in finding that the parent had a burden of proving the appropriateness of the student's services and should have ended the analysis by issuing an order directing the district to continue the student's pendency services until the earlier of the district reconvening to recommend an appropriate program or the end of the 2024-25 school year.[8] Additionally, the parent alleges that she proved the appropriateness of the unilaterally obtained services. Initially, the parent contends that the IHO applied an incorrect standard, asserting that unilateral placements must consider the totality of the circumstances, which, according to the parent, should have focused on the district's failure to implement its own IESP and "the lack of any better option" and should not have taken the student's home instruction program into account. Related to this point, the parent asserts that the IHO exhibited bias in basing her opinion on the adequacy of the student's home instruction plan, which the parent asserts was not raised by the district and was not relevant to an analysis of the parent's claims. The parent further alleges that she demonstrated the appropriateness of the unilaterally obtained services through testimony and progress reports. The parent alleges that the IHO erred in finding that there was no evidence that the parent requested 12-month programing prior to the parent's June 17, 2024 10-day notice because the parent requested a 12-month program; moreover, the parent alleges that the IHO erred in finding that there was no evidence of substantial regression during the summer months. Further, the parent alleges that the IHO failed to rule on the parent's request for the continuation of speech-language therapy services and compensatory OT. The parent also alleges that the IHO erred in finding that the equities would reduce the parent's reimbursement.
As a remedy, the parent seeks a reversal of the portions of the IHO decision that found she had not met her burden to prove the appropriateness of the unilaterally obtained services, and that equitable considerations disfavor full reimbursement. Additionally, the parent requests an order to continue the student's pendency program, consisting of 20 hours per week of SETSS at a rate $175 per hour and 1.5 hours per week of speech-language therapy to be provided at a rate of $195 per hour, for the 12-month 2024-25 school year or until the district recommends and implements an appropriate IESP. Finally, the parent requests an award of 63 hours of OT at a market rate as compensatory education.
The district submits an answer and cross-appeal, arguing that there is no authority to support the parent's allegations that the student's pendency should continue until the district reconvenes the CSE to recommend an appropriate program or until the end of the school year; rather, the district argue that pendency services should continue only during this proceeding. The district also cross-appeals from argues that the hearing record supports the IHO's finding that the parent failed to sustain her burden of proving the appropriateness of the unilaterally obtained services on a 12-month basis. Additionally, the district argues that equitable considerations weigh in favor of barring all relief in this matter. Further, the district cross-appeals from the IHO's order on pendency, arguing that the IHO erred in finding pendency was based on the May 2024 IHO decision because the May 2024 IHO decision remedied a denial of FAPE for the 2023-24 school year by awarding compensatory education as there was no determination on the appropriateness of the student's educational program. The district argues that while the prior IHO did not make a finding that award or any specific provider was an appropriate program for the student.
In an answer to the cross-appeal, the parent argues that since the district's cross-appeal is based on the IHO's order on pendency, which was issued on November 13, 2024, the district's cross-appeal should be dismissed as untimely or without merit. The parent argues in the alternative that the district's arguments regarding pendency should be dismissed on the merits, as the award of compensatory damages granted in the May 2024 IHO decision constituted the last agreed upon placement, at the time the parent's due process complaint notice was filed on July 1, 2024.
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
The parties do not appeal from the IHO's findings that the student was not entitled to an IEP for the 2024-25 school year and that the district denied the student a FAPE on an equitable basis for the 2024-25 school year. Accordingly, these findings 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]).
A. Pendency
The parent argues that the district's cross-appeal regarding pendency should be dismissed due to timeliness. First, the parent asserts that an appeal of an interim decision on pendency is not an appropriate issue for a cross-appeal because it was not part of the IHO's December 2024 final decision, which was the subject of the parent's appeal. According to the parent, because the district did not appeal the issue of pendency within 40 days of the issuance of the IHO's interim decision on pendency or in a timely appeal from the IHO's final decision, the cross-appeal should be dismissed. Overall, the parent asserts that State regulation does not permit a cross-appeal of an interim decision on pendency.
State regulation provides that
[a]ppeals from an impartial hearing officer's ruling, decision, or failure or refusal to decide an issue prior to or during a hearing shall not be permitted, with the exception of a pendency determination made pursuant to subdivision 4 of section 4404(4) of the Education Law. However, in an appeal to the Office of State Review from a final determination of an impartial hearing officer, a party may seek review of any interim ruling, decision, or failure or refusal to decide an issue.
(8 NYCRR 279.10[d]). The parent contends that the State regulations do not permit cross-appeals of pendency determinations. However, State regulation provides that "[a] respondent who wishes to seek review of an impartial hearing officer's decision may cross-appeal from all or a portion of the decision by setting forth the cross-appeal in an answer" (8 NYCRR 279.4[f]). State regulation does not specify that a cross-appeal is limited to an appeal of the final decision of an IHO. Additionally, a cross-appeal is a part of the appeal, taken as a whole. Section 279.10(d) states that "a party may seek review of any interim ruling, decision, or failure or refusal to decide an issue" (id.). The regulations do not specify that only the petitioner "may seek review of any interim ruling, decision, or failure or refusal to decide an issue" (id.). Thus, upon review of applicable State regulation, the district was permitted to raise the issue of pendency in its cross-appeal.
Turning to the merits of the district's cross-appeal, the district argues that the May 2024 IHO Decision cannot be the basis of the student's pendency in this matter as that decision did not establish the appropriateness of a specific educational program for the student.
The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[11] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]). A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]). The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).
Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]). Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]). Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).
In an interim decision on pendency dated November 13, 2024, the IHO found that the student was entitled to pendency, rejecting the district's argument, raised during the hearing, that the student was not entitled to pendency because the student was home schooled (Interim IHO Decision at pp. 5-6). Noting that the district did not offer any alternative basis for pendency, the IHO found that the student's education program during the pendency of the proceeding was based on the unappealed May 2024 IHO Decision (id. at p. 6). The IHO explained that while the May 2024 IHO Decision was an award of compensatory education, and pendency cannot generally be based on an award of compensatory education, pendency still lies with the May 2024 IHO Decision because it remedied a current denial of FAPE, as opposed to a past denial of FAPE covering multiple school years, and it included a frequency and duration for the awarded services (id.). Specifically, the IHO found that the student's pendency program consisted of 20 hours per week of individual SETSS, three 30-minute sessions per week of speech-language therapy, and three 30-minute sessions per week of OT (id.).
Upon examination of the May 2024 IHO Decision, I find that it is a compensatory award for a denial of a FAPE for the 2023-24 school year and thus does not constitute an agreement between the parties as to a program of educational services for the student (see Application of the Dep't of Educ., Appeal No. 20-197). [12] In the May 2024 IHO Decision, the IHO found that the district had denied the student a FAPE for the 2023-24 school year by failing to properly evaluate the student and by failing to implement services outlined in the student's 2023 IESP (Parent Ex. C at pp. 8-10). A part of the May 2024 decision, the IHO explicitly noted that the award of 20 hours per week of SETSS was "calculated to place [the] student in the position [he] would have been in had the district complied with its obligations under the IDEA" (id. at p. 12). Although the IHO in the prior proceeding did award services based on a denial of a FAPE for the entirety of the 2023-24 school year prior to the end of the school year, compensatory services are awarded to remedy a past violation, rather than to offer a student a FAPE going forward (see Boose v. Dist. of Columbia, 786 F.3d 1054, 1056 [D.C. Cir. 2015] [noting that an IEP is required to "provide some educational benefit going forward," while the purpose of compensatory education is to "undo[] damage done by prior violations"] [internal quotations omitted]). If the IHO intended to order a prospective program for the student, the IHO could have done so in that proceeding; however, the IHO specifically decided to order the district to provide the student with compensatory additional services (Parent Ex. C at pp. 11-12).
I do not find the arguments that the parent presents regarding how this matter differs from Application of the Department of Education, Appeal No. 20-197 to be compelling. The parent argues that the IHO in the May 2024 IHO Decision found that the compensatory services awarded were appropriate for the student. However, this is not an accurate representation of the May 2024 IHO Decision; the IHO found that the rates set by the providers were appropriate for the award of compensatory education, but the IHO did not make a specific finding that the services provided by the SETSS, speech-language, or OT providers were appropriate for the student (Parent Ex. C at p. 8-16). Thus, since the IHO did not determine the appropriateness of the services provided to the student, the May 2024 IHO Decision is solely an award of compensatory education and cannot serve as the basis of pendency for this matter.[13]
However, the student is still entitled to pendency services during the duration of this proceeding. It is worth noting that although the May 2024 IHO decision determined that the student was denied a FAPE for the 2023-24 school year, the decision did not make a specific determination that the program recommended in the September 2023 IESP was not appropriate for the student. Instead, the May 2024 IHO decision limited the finding of a denial of a FAPE to the district's failure to sufficiently evaluate the student prior to the CSE meeting and the district's failure to implement SETSS, OT, and speech-language therapy services during the 2023-24 school year (Parent Ex. C at pp. 7-10).[14] The parent's September 4, 2024 due process complaint notice did not include a challenge the September 2023 IESP, or the later developed March 2024 IESP, instead the parent asserted that the district did not develop an IESP prior to the start of the 2024-25 school year (see Parent Ex. A). During the October 31, 2024 hearing date, the district submitted the March 2024 IESP into evidence and the parent objected, asserting that the March 2024 IESP was found to be inappropriate as part of the prior proceeding; however, the IHO overruled the parent's objection (Oct. 31, 2024 Tr. pp. 6-11). The IHO then addressed the appropriateness of the March 2024 IESP in her decision, finding insufficient evidence to support the recommendations made in the IESP (IHO Decision at p. 11). Considering the above, the March 2024 IESP was not being challenged as of the filing of the due process complaint notice in this matter. Accordingly, the student's placement during the pendency of this proceeding should be based on the March 2024 IESP, unless the parties come to a different agreement regarding the student's pendency.
B. 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 2024-25 school year and, as a self-help remedy, she unilaterally obtained private services from Dyslexia Associates, Inc. and FirstRowe Speech Pathology, PC 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]).[15] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1. Student's Needs
Although the student's present levels of performance and individual needs are not in dispute on appeal, a discussion thereof provides context for the main issue to be resolved, namely, whether the unilaterally obtained SETSS and speech-language therapy in support of the student's home instruction program were appropriate to meet the student's needs.
As noted above, the parent obtained an independent neuropsychological evaluation in February 2024 which, at the time, provided the most up to date assessment of the student's needs relative to the 2023-24 school year (see Dist. Ex. 4).[16] A review of the February 2024 neuropsychological evaluation reveals that the student was evaluated bilingually in Russian and English (Dist. Ex. 4 at p. 5). The evaluator reported that the student "spoke in single words and short phrases but with poor grammar and articulation in both Russian and English," and that he "preferred Russian and understood instructions mostly in Russian" (id.). According to the evaluator, the student demonstrated a better grasp of Russian than English "in terms of comprehension of instructions and daily communication, but his academic knowledge and comprehension of instructions was more developed in English" (id. at p. 10).
Regarding the student's cognitive ability, the February 2024 neuropsychological evaluation report indicated that on the Weschler Intelligence Scale for Children-Fifth Edition (WISC-V), the student obtained a full-scale IQ of 74 (4th percentile), which was "greatly lowered by his significant speech and attention deficit" (Dist. Ex. 4 at p. 5). According to the February 2024 neuropsychological evaluation report, the student's "significant language delay notably decreased his verbal IQ score, and consequently, his overall IQ score, as he could not verbalize his understanding of the word meanings and verbal analogies, unless these were very simple and involved pictures that he could point to as a form of a response" (id. at p. 10). The neuropsychological evaluation report further noted that the student's cognitive strengths were identified only in a 1:1 setting with constant redirection and prompts, and the capture of his very short attention span and reciprocal cooperation … [and] thus, while his overall IQ scores [did] not accurately demonstrate his intellectual potential," individual test scores better demonstrated his current reasoning and thinking ability when given 1:1 support, scaffolding, layering, and multisensory techniques (id.).
Academically, the February 2024 neuropsychological evaluation report stated that the student did not read words but spelled "a couple" three-letter words, identified letters and many basic colors and shapes in English, counted objects and shapes, subtracted, and added objects in real life problems, and understood "more" and "less," subtraction and addition, and basic measurement (longest and shortest) (Dist. Ex. 4 at p. 6). The evaluation report noted that having manipulatives and concrete objects to use when completing math tasks helped the student understand what to do (id.). In addition, the evaluation report indicated the student wrote his first name with recognizable but immature form and poor spacing (id.). On the Wechsler Individual Achievement Test, Fourth Edition (WIAT4), the student's standard score of 46 (<1st percentile) on a test of early reading skills was in the extremely low range (id. at pp. 1, 6). According to the evaluation report, the student identified most letters but could not rhyme or read short words and demonstrated letter reversals (id. at p. 6). On a test of word reading skills, the student obtained a standard score of 57 (<1st percentile), which was in the extremely low range, and he demonstrated "very poor phonological awareness" (id.). The student's performance on tests of alphabet writing (8th percentile) and spelling (3rd percentile) were in the borderline range (id.). Regarding the student's mathematical abilities, the evaluation report stated that on a test of numerical operations, the student obtained a standard score of 82 (12th percentile), in the low average range, and standard score of 62 (1st percentile) on a test of math problem solving which was in the extremely low range (id. at p. 7).
The February 2024 neuropsychological evaluation report further related that the student exhibited a "significant language delay" in expressive and receptive language skills (Dist. Ex. 4 at p. 10). He used single words and short phrases with poor grammar and articulation in both Russian and English (id.). While the student's "verbal output was very limited," he made his basic needs known via limited speaking and pointing to objects (id.). According to the evaluation report, the student's receptive language was stronger than his expressive language but was limited to "simple commands, mostly routine daily instructions and also some novel test instructions, especially if he had some visually presented information and manipulatives" (id.). He had difficulty understanding and following more complex age-appropriate test instructions, such as grouping objects based on less obvious features and tagging specific targets while avoiding all other symbols (id.). The evaluation report indicated that on the NEPSY: A Developmental Neuropsychological Assessment Test, Second Edition (NEPSYII), the student obtained a standard score of 6 (9th percentile) on a task assessing his comprehension of verbal instructions "due to his receptive language deficit and attention deficit" (id. at pp. 1, 5). He obtained a standard score of 3 (1st percentile), in the extremely low range on a task assessing auditory/phonological processing, "partly due to his limited fluency in English" (id.). On the Wide Range Assessment of Memory and Learning 3rd Edition (WRAML3) sentence repetition subtest, the student obtained a standard score of 3 (1st percentile) (id.). The evaluation report stated that the student repeated words in English, with poor articulation, but his ability to repeat sentences word for word in English was "very limited for his age" as he repeated only very short sentences and omitted words in sentences of over three words (id. at p. 5). The student also performed "in the extremely low range" on WISC-V verbally mediated tasks and obtained a verbal comprehension index (VCI) standard score of 68 (2nd percentile) (id.). The student's performance included "extremely low demonstration of his acquired vocabulary knowledge" (1st percentile) and "borderline verbal reasoning and analogies skills" (5th percentile) (id.).
According to the 2024 neuropsychological evaluation report, during the evaluation the student displayed frustration but did not display tantrums, aggressive or self-injurious behaviors; responded to redirection; and "agreed to take a break and get back to work" (Dist. Ex. 4 at p. 7). On the Autism Diagnostic Observation Schedule, Module 2, the student exhibited "a few features of mild symptoms" from the autistic spectrum disorder category, mostly symptoms of social affect and social communication deficit, and a few "mild" manifestations of restrictive/repetitive behaviors; however, these symptoms did not meet criteria for autism (id.). Next, the evaluation report indicated that the results of the Gilliam Autism Rating Scale, completed by the student's parent, revealed no significant symptoms of autism (id.). However, behavioral checklists completed by the parent revealed symptoms of attention deficit hyperactivity disorder (ADHD), including distractibility, difficulty sustaining focus, restlessness, impulsivity, fidgeting, and hyperactivity, learning difficulties, weak social skills, and weakness in planning, organization, and impulse control (id. at p. 8). His profile did not contain signs of aggressive behavior, conduct disorder, opposition, mood swings, depression, and anxiety (id.). Turning to behavioral checklists completed by the student's teacher, the evaluation report stated that the teacher's responses indicated symptoms of ADHD, learning difficulties, weak social skills, and weakness in memorizing new information, planning, organization, and impulse control (id.). The teacher's responses further indicated the student demonstrated emotional lability, low frustration, restlessness, fidgeting, impulsivity, overactivity, and distractibility, and displayed worry and sadness when things didn't work out the way he wanted (id.). He was never oppositional or aggressive and didn't destroy property (id.). According to the neuropsychological evaluation report, the student was particularly fidgety in familiar settings where he had to stay seated and focus on mental activities, which necessitated one-on-one support and redirection to complete class assignments; however, during the evaluation the student displayed "less impulsivity and nearly no hyperactivity while working with novel materials and toys and interacting with a new instructor/examiner" (id. at p. 12).
Finally, in terms of the student's motor needs, the February 2024 neuropsychological evaluation report noted that parent and teacher behavior rating scales indicated the presence of sensory integration issues (Dist. Ex. 4 at pp. 8-9). The sensory measure completed by the student's parents revealed poor action planning, as the student did not follow multistep directions, plan when copying from a model, or organize toys (id. at p. 8). Teacher ratings revealed mild elevation of visual, tactile, and auditory hyposensitivity or hypersensitivity (id. at p. 9). The student also demonstrated weak fine motor skills, as he copied simple shapes and figure, and wrote "a few" letters and numbers, but was unable to copy more complex shapes, and his overall motor precision was poor when forming and spacing letters and numbers (id. at p. 11).
2. Unilaterally Obtained SETSS and Homeschool Instruction
In the instant case, the parent argues that the testimony and progress reports from the student's providers demonstrated that the student's SETSS and speech-language therapy were specially designed to meet the student's unique needs.
The Dyslexia Associates educational director testified that the parent contracted with the agency to provide the student with 20 hours of individual SETSS per week for the 12-month 2024-25 school year (Parent Ex. I ¶ 6). According to the educational director, the student received 1:1 SETSS using Orton-Gillingham instruction, specialized reading instruction, and specialized math instruction for "at least six, seven hours" on Tuesdays and Thursdays and "about" four hours on Mondays, Wednesdays, and Fridays (Oct. 31, 2024 Tr. pp. 64-65).[17] The director additionally testified that the student's SETSS provider was certified in special education, had received "hundreds of hours" of Orton-Gillingham training and in-service support, and was "working towards" certification in both Orton-Gillingham and applied behavioral analysis (id. at pp. 65-66).
A review of the September 2024 SETSS progress report showed that the SETSS provider used "targeted, explicit, ongoing, and systematic multisensory, multi-modality instruction" to address the student's underlying math deficits (Parent Ex. H at p. 1). The progress report noted that the student benefitted from multisensory instruction using visual, kinesthetic, and auditory modalities but still needed repeated practice to grasp mathematical concepts (id.). The student had difficulty reading and understanding basic word problems, and identifying, writing, and reading numbers to 100 due to his reading difficulties (id.). On the Acadience Benchmark Assessment, the student met the benchmarks for beginning first grade in number identification fluency, missing number fluency, computation when adding and subtracting numbers 1-20 without regrouping, and quantity discrimination (determining greater/less than numbers) (id.).
The September 2024 SETSS progress report also related that the student was making steady progress in developing reading skills but was still identified as "an emergent reader" (Parent Ex. H at p. 2). He had difficulty with letter and sound association of letters, areas of phonological development, sight word recognition, fluency and reading comprehension (id.). According to the progress report, the student continued to receive reading intervention through "evidence-based practices such as the Orton-Gillingham approach" to develop his literacy skills and had made progress using procedures in Orton-Gillingham methodology (id.). On a phonological awareness assessment, the student showed progress with understanding a concept of a spoken word, rhyme recognition, completing rhymes, syllable blending, segmenting, phoneme isolation of a sound, and phoneme blending with onset and rime (id.). According to the SETSS progress report this was "significant" improvement since January 2024, when the student demonstrated "little to no skills in blending, rhymes, or segmenting" (id.). The student also made progress identifying upper and lowercase letters, producing sounds for letters, identifying Dolch pre-primer words through procedures such as Trace, Copy, Cover, Close (id.). According to the progress report, a running record assessment placed the student at an end-of-kindergarten reading level, which represented improvement from his initial assessments, but significant progress was not attained regarding reading fluency (id.). The progress report related that, based on teacher observation, formal assessments, and work sample analysis, the student was performing at a "mid to end of kindergarten level" in reading (id.). Regarding writing, the student had made progress with letter sound relationships, identifying 18 letters when given word associations (id. at p. 3). He spelled CVC words when tapping out sounds but had difficulty writing vowel sounds in CVC words due to auditory processing deficits (id.). The progress report stated that the student needed support when writing sentences but was "aware of grammatical skills such as capitalization and punctuation using COPS (Capitalization, Organization, Punctuation, and Spelling) accuracy strategies" (id.). As indicated in the progress report, the student was performing at a mid to end of kindergarten level (id.).
The September 2024 SETSS progress report related that the student's social-emotional state could be "fragile," especially when learning new concepts, and he required "repetition, rehearsal and relearning strategies" to help create a "secure and safe environment for learning new information" (Parent Ex. H at p. 4). He was "more responsive" to learning new concepts in reading and math which demonstrated that his confidence in his academics and his willingness to learn were growing; however, the student continued to get overwhelmed when learning something new and at times needed to "step back" (id.). According to the progress report, the student had made progress verbalizing when something was too difficult or when he needed help in an academic area (id.). The student was also making "slow yet consistent progress toward his goals in reading, writing, and math" (id.). The progress report characterized the student's intervention plan as "intensive," and noted he spent "significant time" during SETSS sessions relearning skills that he had not yet mastered (id.). While the student had made progress with language acquisition and skills, assessment data showed "limited growth in all academic areas of development" (id.).
Regarding the student's related services, the hearing record shows that he received three 30-minute sessions of individual bilingual speech-language therapy per week through FirstRowe Speech Pathology (October 31, 2024 Tr. p. 58; Parent Exs. K; L ¶ 7). The speech-language pathologist testified that she provided instruction in English whenever appropriate, but the student "still [had] a great deal of difficulty understanding English" so she needed to translate into Russian to make sure the student could follow the instruction (October 31, 2024 Tr. p. 58). A review of the hearing record reveals that the student's receptive language was a relative strength, and he understood words, phrases, and simple sentences; however, academic language that involved a variety of basic concepts, complex syntax, abstract or remote in time and space concepts was challenging (Parent Exs. K at pp. 1-2; L ¶ 10). The hearing record shows the student had made progress in both expressive language and literacy development across several skill areas and his engagement and participation in speech-language therapy sessions had increased (Parent Exs. K at p. 2; L ¶ 11). He exhibited difficulty with social and pragmatic skills and regulating emotions during sessions but had made "slight" progress communicating his emotions using a feelings chart (Parent Ex. K at p. 3; L ¶ 13). The hearing record additionally shows that the student demonstrated "extremely poor overall speech intelligibility for his chronological age related to the diagnosis of childhood apraxia of speech (apraxia), with his intelligibility fluctuating between 30%-70% (Parent Exs. K at p. 3; L¶ 14). He responded well to the PROMPT technique and benefitted from tactile-kinesthetic feedback (Parent Exs. K at p. 3; L ¶ 16). He had learned to engage in "simultaneous production" tasks, which, "according to the dynamic temporal and tactile cueing methodology," aided in faster speech motor gains and better retention of newly acquired skills in students with apraxia (Parent Exs. K at pp. 3-4; L ¶ 17).
While the student's March 2024 IESP also recommended two 30-minute sessions of OT, the parent testified that she had "contacted each and every" provider on the list provided by the district but could not find anyone to provide the student's OT services and the student was not receiving OT services at the time of the impartial hearing (October 31, 2024 Tr. p. 74; Parent Ex. N ¶ 9).
The parent further argues that the student required special education services for the 12-month extended school year. The parent testified that she requested ESY services at the March 2024 CSE meeting "because if we don't do anything in the summer, [the student] forgets even what he learned last year, like it happened last year over the summer … [w]e had to repeat letters and sounds again" (October 31, 2024 Tr. p. 76). The parent testified that the request for ESY services was included in the ten-day notice provided to the district and a review of the ten-day notice letter supports the parent's testimony (October 31, 2024 Tr. p. 76; Parent Ex. B at pp. 1-2). In addition, the psychologist who conducted the February 2024 neuropsychological evaluation of the student, Dyslexia Associates educational director and FirstRowe speech-language therapy provider also testified that the student required 12-month services to prevent regression (Parent Exs. I ¶ 12; K at p. 4; M ¶ 13).[18]
The hearing record also included limited information as to the education provided to the student as part of his home instruction. The parent testified that the student's home instruction was provided through the Acellus computer application, which he worked on for an hour per day after he came home from his SETSS instruction, and on the weekend for "more time, like five hours a day doing social studies, science, math, reading, [and] writing" (October 31, 2024 Tr. pp. 73, 77-78). The parent testified that the student also attended two-and-a-half hours of Leap Tutoring Academy home instruction three times per week (id. at pp. 75, 78). The Dyslexia Associates educational director, who was also the founder of Leap Tutoring Academy testified that the student participated in the academy homeschool co-op program, which was a "socialized learning program, very small groups, about five to six kids" (id. at pp. 63-64). The Leap Tutoring Academy co-op group, which met on "a part-time basis, Mondays, Wednesdays, and Fridays from 9:00 to 11:30 . . . involved reading, writing, and math with other kids who [were] group[ed] according to similar needs" (id. at pp. 64, 69). According to the educational director, the Leap Tutoring Academy program was a part time program that "invited parents as partners" when they were homeschooling and was an "opportunity for [students] to have some socialized learning experiences regarding reading, writing, and math ... and [students] c[a]me with the intention that parents [were] partnering up with [the academy] in fulfillment of their children's needs" (id. at p. 69). Nonetheless, the hearing record lacks information on the curriculum used in the Leap Tutoring Academy group, how instruction was provided to the student, or how the academy program supported the student in areas of identified need.
In addition, the hearing record does not describe how the SETSS provided by Dyslexia Associates supported the student in either the Leap Tutoring Academy group or in his online home instruction provided by the parent or evidence of the student's progress in either program. This is particularly noteworthy given the student's continued academic difficulties described in the SETSS progress report, including his "beginning first grade" performance in math with "significant gaps," and "mid to end of kindergarten level" performance in reading and writing, which "placed him more that [three] years behind" grade level expectations (Parent Ex. H at pp. 1-3). Further, it is concerning that the parent was given an opportunity to enter additional information on the student's home instruction program and she chose not to submit any further information (see IHO Decision at p. 16).
Here, the parent appeals, asserting that the IHO "erroneously focused on the student's home schooling program" and should have considered the totality of the circumstances including the district's failure to implement its own IESP and the parent's lack of other options. However, review of the IHO's decision shows that the IHO considered that the parent "was left with no option but to secure services for the [s]tudent" (IHO Decision at p. 15). Additionally, the IHO explained the shortcomings with the provision of 20 hours per week of SETSS, finding specifically that the psychologist who completed the February 2024 neuropsychological evaluation report based his recommendation "on the understanding that the 20 hours per week of SETSS was the student's primary program" and further noting that "SETSS is meant to support the [s]tudent's existing program" (id. at pp. 16-18). The IHO found that the services provided to the student were not appropriate because there was insufficient evidence "regarding what education or program [the s]tudent was actually receiving" (id. at pp. 16-17).
In this instance, consistent with the IHO's decision, the hearing record lacks sufficient evidence regarding the curriculum provided to the student as part of his home instruction program, the student's non-SETSS instruction, and how SETSS would have been connected to the instruction provided to the student during the 2024- 25 school year. Given that, by definition, specially designed instruction is the adaptation of instruction to allow a student to access a general education curriculum so that the student can meet the educational standards that apply to all students (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]), under the totality of the circumstances, the IHO was justified in considering the lack of information regarding the student's primary education in rendering a decision as to the appropriateness of the SETSS, which should have been presented with an explanation as to how it was designed to allow the student to access his general education curriculum provided through home instruction.
Overall, the IHO did not err in determining that there was insufficient evidence in the hearing record regarding the home instruction provided to the student or how the SETSS provided supported the student's general education program (IHO Decision at p. 16). Accordingly, I find that the IHO did not err in finding that the parent failed to meet her burden of proving the appropriateness of the unilaterally obtained services for the student.
VII. Conclusion
In conclusion, the IHO erred in finding that the student's program during the pendency of this proceeding was based on the compensatory education award set forth in the May 2024 IHO decision and the student's pendency services should instead have been provided to the student based on the services outlined in the student's March 2024 IESP. I also find that the IHO did not err in finding that the parent failed to meet her burden to prove the appropriateness of the unilaterally obtained services.
I have considered the remaining contentions and find it is unnecessary to address them in light of my determinations above.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's interim decision on pendency, dated November 13, 2024, is annulled;
IT IS FURTHER ORDERED that for the duration of this proceeding, the district is required to provide the student with the services outlined in the student's March 2024 IESP, unless the parties come to another agreement regarding pendency.
Footnotes
[1] A review of the March 2024 IEP shows that the student was identified as a first-grade student during the 2023-24 school year (Dist. Ex. 1 at p. 1).
[2] While the parent testified that the student's SETSS was provided by "L[EAP] Tutoring Academy aka Dyslexia Associates" the educational director of Dyslexia Associates testified that Dyslexia Associates and Leap Tutoring Academy were separate agencies with different programs (Parent Ex. N ¶ 6; Tr. p. 63). According to the educational director, the student received SETSS through Dyslexia Associates (Tr. p. 64).
[3] 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]).
[4] Education Law § 3602-c allows parents to home school their children under an individualized home instruction plan that the superintendent determines is in compliance with the requirements of 8 NYCRR 100.10 as a parental placement and then seek dual enrollment services for eligible students with disabilities under an IESP (see "Requirements for the Provision of Special Education Services to Home-Instructed ('Home-Schooled') Students" available at https://www.nysed.gov/special-education/requirements-provision-special-education-services-home-instructed-home-schooled).
[5] SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district.
[6] The initial due process complaint notice was dated July 1, 2024.
[7] The transcripts dated August 2, 2024, September 4, 2024, and October 7, 2024 are all paginated sequentially. However, the pagination resets for the transcript dated October 31, 2024. Thus, all citations to the October 31, 2024 transcript will identify the date and the cited page number.
[8] State regulation provides that a "request for review, answer, answer with cross-appeal, answer to cross-appeal, or reply shall not exceed 10 pages in length" (8 NYCRR 279.8[b]). In general, the failure to comply with the practice requirements of Part 279 of the State regulations may result in the rejection of the submitted documents (8 NYCRR 279.8[a]-[b]; see T.W. v. Spencerport Cent. Sch. Dist., 891 F. Supp. 2d 438, 440-41 [W.D.N.Y. 2012] [upholding dismissal of a petition for review that was untimely and exceeded page limitations]). However, "judgments rendered solely on the basis of easily corrected procedural errors or 'mere technicalities,' are generally disfavored" (J.E. v. Chappaqua Cent. Sch. Dist., 2015 WL 4934535, at *4-*6 [S.D.N.Y. Aug. 17, 2015], quoting Foman v. Davis, 371 U.S. 178 [1962]). Here, the parents' request for review was 11 pages long, in excess of the 10-page maximum set forth in State regulation (8 NYCRR 279.8[b]). While I decline to exercise my discretion to reject the parent's pleading due to this irregularity in this instance (see 8 NYCRR 279.8[a]), the parent 's attorney is cautioned that, while a singular failure to comply with the practice requirements of Part 279 may not warrant an SRO exercising his or her discretion to reject a request for review, an SRO may be more inclined to do so after a party or an attorney's repeated failure to comply with the practice requirements (see Application of a Student with a Disability, Appeal No. 21-102; Application of a Student with a Disability, Appeal No. 18-010; Application of a Student with a Disability, Appeal No. 17-101; Application of a Student with a Disability, Appeal No. 16-060; see also Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040).
[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] In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (see Ventura de Paulino, 959 F.3d at 532-36).
[12] Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE ( see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; Newington, 546 F.3d at 123 [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]). Likewise, SROs have awarded compensatory services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. of City Sch. Dist. of Buffalo v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA ( see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep . Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).
[13] It is worth noting that accepting the parent's interpretation of the IHO decision in the prior proceeding would effectively permit the parent to engage in an end run around bearing the burden of proof for the privately-obtained services. Decisions from the Office of State Review have many times indicated that it may not be appropriate in the administrative due process forum to continue to place the burden of proof regarding compensatory education relief on the district, and it is worth noting that no Court or other authoritative body in this jurisdiction has addressed the topic to date (Application of a Student with a Disability, Appeal No. 23-096; Application of a Student with a Disability, Appeal No. 23-050). Where the parent seeks relief in the form of compensatory education to be provided by parentally-selected private special education companies, it is appropriate to place the burden of production and persuasion on the parent with regard to the adequacy of the proposed relief. However, in most cases, where a parent is in fact seeking compensatory education as relief, the district, as the party responsible to implement special education services in the first place, should be directed to carry out the remedial relief ordered by an administrative hearing officer.
[14] As part of the IHO's finding, in the prior proceeding, as to an award of compensatory education, the IHO found that there was insufficient evidence to show that seven hours per week of SETSS was appropriate and there was sufficient evidence to show that 20 hours per week of SETSS was necessary; however, that finding was only made as part of the relief awarded (Parent Ex. C at p. 12).
[15] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the special education that the parent obtained from Dyslexia Associates, Inc. and FirstRowe Speech Pathology, PC (Educ. Law § 4404[1][c]).
[16] The hearing record includes the results of an academic evaluation conducted in September 2023 by Leap Tutoring Academy which indicated the student was functioning "more than [two] years behind his peers" and demonstrated "significantly below-average receptive and expressive language skills," difficulty with phonemic awareness, weaknesses in letter identification and letter/sound correspondence, underdeveloped phonological capacity, difficulty with spelling and listening comprehension, fine motor weaknesses including pencil grasp and near and far point copying, emerging sight word recognition, and difficulty with reading fluency (Dist. Ex. 5 at pp. 1-9). With respect to mathematics, the academic evaluation report indicated the student's mathematical ability was "developing" and he presented with a general understanding of addition and subtraction but required the use of manipulatives, counters, and a number line to add and subtract (id. at p. 10). The evaluation report stated that word problems were difficult for the student, and he relied heavily on pictorial representations to figure out whether to add or subtract (id.).
[17] The transcripts dated August 2, 2024, September 4, 2024, and October 7, 2024 are all numerated sequentially. However, the numeration resets for the transcript dated October 31, 2024. Thus, any citations to the October 31, 2024 transcript will be dated and the cited pages number will be corresponding to the reset numeration.
[18] The educational director testified that she had "data that measure[d] significant decline of skills when [the student] [was] not receiving his required SETSS intervention whereby academic regression result[ed] in more than [three] months of academic skill deterioration;" however no data was entered into the hearing record (Parent Ex. I ¶ 13).