STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-068
Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability
Appearances:
Liz Vladeck, General Counsel, attorneys for petitioner, by Jason Poling, Esq.
Shehebar Law P.C., attorneys for respondent, by Allan Shehebar, 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 district) appeals from a decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondent's (the parent's) daughter and ordered it to fund the student's private services delivered by Gold Key Learning, LLC (Gold Key) for the 2023-24 school year.[1] The 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
In this case, the evidence in the hearing record concerning the student's educational history is sparse. Briefly, an initial CSE convened on March 26, 2019, determined that the student, who was four years old at that time, was eligible for special education as a student with a speech or language impairment, and developed an IESP with a projected implementation date of September 5, 2019 (see Parent Ex. B at p. 1).[2], [3] For the 2019-20 school year, the March 2019 CSE recommended that the student receive five periods per week of direct individual special education teacher support services (SETSS) and two 30-minute sessions per week of individual speech-language therapy (id. at pp. 7).[4]
There is no information in the hearing record as to what transpired between the March 2019 IESP and the start of the 2023-24 school year.
For the 2023-24 school year (third grade), the parent enrolled the student in a nonpublic school and signed an agreement with Gold Key to provide the student with five periods per week of SETSS and two 30-minute sessions per week of speech-language therapy during the 10-month 2023-24 school year (Parent Exs. C; F).[5], [6] The Gold Key contract indicated that the rate for SETSS was $195 per hour and the rate for speech-language therapy was $290 per hour (id.). The contract stated that if the district did not pay for the services, the parent was liable to pay for them (id.).
A. Due Process Complaint Notice
In a due process complaint notice dated November 1, 2023, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A at p. 1). The parent argued that the district failed to implement the March 2019 IESP and that it was the district's obligation to ensure the student had an appropriate program by the start of the 2023-24 school year (id. at p. 2). The parent contended that she was unable to obtain providers at the district rate and had to unilaterally secure her own providers at an enhanced rate (id.). The parent noted that she reserved the right to challenge the appropriateness of the district's program and request compensatory educational services for any services that were mandated but not provided (id.). The parent also asserted that the student was entitled to pendency services based on the March 2019 IESP (id. at p. 3). The parent requested direct funding for SETSS and related services at enhanced rates (id.).[7]
B. Impartial Hearing and Impartial Hearing Officer Decision
An impartial hearing convened on August 8, 2024, and concluded on November 4, 2024, after five days of proceedings (see Tr. pp. 50-99).[8] In an interim decision dated September 19, 2024, the IHO denied the district's motion to dismiss (see Interim IHO Decision).[9] The IHO noted that the district alleged the IHO had no jurisdiction over IESP implementation cases (id. at pp. 1-2). The IHO determined that the regulation relied on by the district stated that it only affected due process complaint notices filed on or after July 16, 2024 (id. at pp. 3-4). The IHO noted that the parent's due process complaint notice was dated November 1, 2023, and therefore, the case was not affected (id. at pp. 3-4). Moreover, the IHO held that the due process complaint notice was not filed "solely for a specific rate being charged" because the action was "brought for the [district's] failure to implement mandated services" (id. at p. 4).
In a decision dated December 26, 2024, the IHO found that the district's failure to implement the student's equitable services constituted a denial of FAPE for the 2023-24 school year (IHO Decision at p. 8).[10], [11] The IHO held that the testimony of the agency's educational supervisor was credible and provided a detailed explanation as to the type of services the student received, the progress the student made, and the student's needs (id. at p. 9). The IHO determined that the parent demonstrated that the unilaterally obtained services were appropriate as they were reasonably calculated to allow the student to make progress (id.). The IHO stated that "[a]fterall, it was the [district]'s own recommendation that [the p]arent unilaterally had to implement" (id.).
Turning to the issue of excessiveness of the requested rates, the IHO held that the district's blanket assertion was unwarranted (IHO Decision at p. 9). The IHO noted that the district failed to present any evidence or justification for the position and that it would be "unjust under these circumstances to bar or limit" the parent's award as it would be rewarding the district for its failures (id.).[12] The IHO found that the parent was financially responsible for the costs of the services per the contract terms (id. at p. 10). Again, the IHO held that the district failed to offer any evidence that the rates requested were excessive, which was the district's burden (id.). The IHO found that the requested rates were not excessive and that equitable considerations favored the parent's request for reimbursement (id. at pp. 10-11).
The IHO ordered the district to: continue to provide all services mandated by the March 2019 IESP of five periods per week of direct group SETSS and two 30-minute sessions per week of speech-language therapy; directly fund five periods per week of direct group SETSS at a rate not to exceed $195.00 per hour; and to directly fund two 30-minute sessions per week of speech-language therapy at a rate not to exceed $290 per hour (IHO Decision at p. 11).[13]
IV. Appeal for State-Level Review
The district appeals and asserts that the IHO erred by denying its motion to dismiss and should have dismissed the parent's due process complaint notice for lack of subject matter jurisdiction.[14] The district also alleges that the IHO erred in finding that the parent's unilaterally obtained services were appropriate and argues that there is little evidence in the hearing record to demonstrate that the services were implemented. Specifically, the district asserts that the hearing record does not indicate when, where, and how the unilaterally obtained services were provided or how the services were specially designed to address the student's unique needs. The district also argues that the student's providers did not testify, the parent did not testify, the student's SETSS provider was not certified for the student's grade, and there were no attendance records, a class schedule, or other proof that the services were delivered to the student. Moreover, the district asserts that the progress reports fail to mention the nonpublic school or indicate how the services would fit into the student's classroom program. The district contends that, based on the totality of the circumstances, the parent failed to meet her burden and the IHO erred in finding that the services were appropriate.
The district further challenges the IHO's determination that the parent established a financial obligation for her unilaterally obtained services, arguing that the service contract was not authenticated, and that no weight should be given to it. The district also asserts that the rate awarded by the IHO was in error, as the IHO failed to consider the American Institutes for Research (AIR) Report submitted into evidence by the district and did not account for the fact that the rates included fees for the parent's attorney. The district asserts that the IDEA does not authorize an administrative hearing officer to award attorney's fees, and the IHO erred by failing to limit the award to $110 per hour for SETSS and $135 per hour for speech-language therapy. In the alternative, the district contends that the award should be limited to the cost of the provider plus a reasonable amount for fringe benefits, specifically, $140.47 per hour for SETSS and $172.40 per hour for speech-language therapy.
Lastly, the district argues that the IHO erred by failing to consider the lack of a 10-day notice for the unilateral placement. According to the district, the parent failed to notify the district of her intent to engage in self-help by obtaining services unilaterally until the filing of the November 1, 2023, due process complaint notice. The district alleges that the failure to provide a 10-day notice should have resulted in a denial of all relief.
In an answer, the parent counters that the IHO had jurisdiction over her claims as the district's arguments are "contrary to settled law" (Answer at p. 1). The parent asserts that the SRO has consistently rejected the district's argument on this issue. Moreover, the parent argues that the IHO issued the denial of the motion to dismiss on September 19, 2024, and the district failed to appeal that decision within the required 40-day timeline.
The parent further contends that the IHO properly held that the services provided to the student were appropriate as the student was provided with specialized instruction tailored to meet her needs. The parent argues that the district failed to present evidence to refute her claims, and that the hearing record supports the IHO's findings. The parent also alleges that the IHO properly awarded the parent the requested enhanced rates. The parent asserts that she was legally obligated to pay for the services provided to the student pursuant to a valid contract. The parent additionally asserts that the requested rates were reasonable, and the IHO did not award attorney fees in the decision. The parent alleges that any reliance on the AIR Report is misplaced as the methodology behind that report has been found to be flawed in prior SRO decisions. Finally, the parent asserts that the district's arguments regarding the 10-day notice are baseless because there is no legal requirement to file a 10-day notice in a matter concerning a request for equitable services.
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]).[15] "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.).[16] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. Subject Matter Jurisdiction
At the outset, it is necessary to address the district's assertion that the IHO erred in failing to dismiss the parent's due process complaint notice for lack of subject matter jurisdiction.[17]
This matter solely involves implementation of equitable services during the 2023-24 school year, a claim that is subject to due process. Recently in several decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-079; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No. 25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 25-028; Application of a Student with a Disability, Appeal No. 24-621; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512 Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).
Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]). However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]). Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.
Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law, and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.
Separate from the services plan envisioned under the IDEA, the Education Law in New York has afforded parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).[18]
Education Law § 3602-c, concerning students who attend nonpublic schools, provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]). It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).
However, the district asserts that neither Education Law § 3602-c nor Education Law § 4404 confer IHOs with jurisdiction to consider disputes from parents seeking implementation of equitable services.
Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a free appropriate public education to the student" (Educ. Law § 4404[1][a]; see 20 U.S.C. § 1415[b][6]). State Review Officers have in the past, taking into account the legislative history of Education Law § 3602-c, concluded that the legislature did not intend to eliminate a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (seeApplication of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[19] In addition, the New York Court of Appeals has explained that students authorized to receive services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.
However, the number of due process cases involving the dual enrollment statute statewide, which were minuscule in number until only a handful of years ago, have now increased to tens of thousands of due process proceedings per year within certain regions of this school district in the last several years. Public agencies are attempting to grapple with how to address this colossal change in circumstances, which is a matter of great significance in terms of State policy. Policy makers have recently attempted to address the issue.
In May 2024, the State Education Department proposed amendments to 8 NYCRR 200.5 "to clarify that parents of students who are parentally placed in nonpublic schools do not have the right under Education Law § 3602-c to file a due process complaint regarding the implementation of services recommended on an IESP" (see "Proposed Amendment of Section 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Due Process Hearings," SED Mem. [May 2024], available athttps://www.regents.nysed.gov/sites/regents/files/524p12d2revised.pdf). Ultimately, however, the proposed regulation was not adopted. Instead, in July 2024, the Board of Regents adopted, by emergency rulemaking, an amendment of 8 NYCRR 200.5, which provides that a parent may not file a due process complaint notice in a dispute "over whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services" (8 NYCRR 200.5[i][1]). The amendment to the regulation does not apply to the present circumstance for two reasons. First, the amendment to the regulation applies only to due process complaint notices filed on or after July 16, 2024 (id.).[20] Second, since its adoption, the amendment has been enjoined and suspended in an Order to Show Cause signed October 4, 2024 (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24 [Sup. Ct., Albany County, Oct. 4, 2024]). Specifically, the Order provides that:
pending the hearing and determination of Petitioners' application for a preliminary injunction, the Revised Regulation is hereby stayed and suspended, and Respondents, their agents, servants, employees, officers, attorneys, and all other persons in active concert or participation with them, are temporarily enjoined and restrained from taking any steps to (a) implement the Revised Regulation, or (b) enforce it as against any person or entity
(Order to Show Cause, O'Connor, J.S.C., Agudath Israel of America, No. 909589-24).[21]
Consistent with the district's position that "there is not and has never been a right to bring a due process complaint" for implementation of IESP claims or enhanced rate for services and that the preliminary injunction issued by the New York Supreme Court does not change the meaning of § 3602-c, State guidance issued in August 2024 noted that the State Education Department had "conveyed" to the district that:
parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services. Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.
("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[22]
However, acknowledging that the question has publicly received new attention from State policymakers as well as at least one court at this juncture and appears to be an evolving situation, the IHO was correct to deny the district's motion to dismiss. Given the implementation date set forth in the text of the amendment to the regulation and the issuance of the temporary restraining order suspending application of the regulatory amendment, the July 2024 emergency amendment to the regulation may not be deemed to apply to the present matter. Further, the NYSED memorandum issued in the wake of the emergency regulation, which was enjoined and suspended, does not convince me that the Education Law may be read to divest IHOs and SROs of jurisdiction over these types of disputes. Accordingly, the district's cross-appeal seeking reversal of relief granted by the IHO on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be dismissed.
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 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from Gold Key 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]).[23] 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).
Although the IHO may have too heavily relied on the parent implementing the student's March 2019 IESP during the 2023-24 school year as evidence for the appropriateness of that program during the 2023-24 school year, the IHO also held that the unilaterally obtained services were appropriate because the supervisor at the providing agency testified credibly that the SETSS and speech-language therapy provided to the student were reasonably calculated to allow the student to make progress and that the student did, in fact, make progress during the school year (IHO Decision at pp. 8-9). The district argues that the services obtained by the parent were not appropriate because there is insufficient evidence as to how the services provided by Gold Key were implemented and how the services were specially designed to meet the student's needs. The district further asserts that there is no evidence that the student received any services at the nonpublic school that she attended. The parent counters that the services were appropriate and that the district failed to present any evidence to contradict the evidence she presented during the hearing.
1. The Student's Needs
Although the student's needs are not in dispute, a description thereof provides context to determine whether the parent's unilaterally obtained SETSS and speech-language therapy were appropriate to address those needs. There is limited information regarding the student's educational needs in the hearing record, as the last recommended program for the student was developed in March 2019 (Parent Ex. B). Because the March 2019 IESP was over four years old at the time of the impartial hearing and was developed prior to the student entering kindergarten, it may not accurately represent the student's needs as of the start of the 2023-24 school year and will not be discussed here except to note that the March 2019 IEP reflected that the CSE recommended that the student receive five periods per week of individual SETSS and two 30-minute sessions per week of individual speech-language therapy beginning September 2019 and for the 2019-20 school year (id. at p. 6-7).
The hearing record also included a March 2024 SETSS progress report (SETSS progress report) and a May 2024 speech-language therapy progress report (speech-language therapy progress report) completed by Gold Key, which show the student's needs at that time (see Parent Exs. F; G). The SETSS progress report related that focusing during lessons was challenging for the student and she often needed individual attention to remain focused (Parent Ex. F at p. 1). According to the SETSS progress report, the student was performing at the second grade level in math and understood fundamental concepts such as addition and subtraction with regrouping but had difficulty with problem solving as she had difficulty understanding the questions posed (id. at pp. 1-2). The student listened during math class and displayed a desire to do well (id. at p. 2). In the area of reading, the student was performing at the second grade level, and decoded basic CVC words and long vowel blends and digraphs but had difficulty with multisyllabic words, occasionally skipped or inserted random words while reading, and had difficulty with the "ed" sound at the end of words (id. at pp. 1-2). The student's reading fluency was "not yet on par with the grade level" and she read slowly and sounded out words (id. at p. 2). The SETSS progress report noted that, despite the student's "enjoyment of books and active participation in reading groups," her reading comprehension "remain[ed] lower than desired" (id.). She comprehended the basic ideas of a book but had difficulty answering higher-order thinking questions (id.). The student responded to "wh" questions at the end of a story but had difficulty sequencing events in a narrative (id.). In the area of writing, the student had difficulty "[f]ormatting ideas onto paper" but with prompting and guidance, she could compose a paragraph (id. at p. 3). Additionally, the student was "actively working to enhance her spelling proficiency" (id.).
The SETSS progress report indicated that the student showed a strong ability to learn through visual and auditory methods, and she found visual aids and manipulatives helpful when learning challenging concepts (Parent Ex. F at p. 3). The student "thrive[d] in an auditory learning environment, expressing her enthusiasm through singing songs as a mnemonic aid" and excelled in smaller group settings where she received "increased attention and focus" (id.). She benefitted from a personalized approach, repetition, and hands-on materials, such as a whiteboard with markers and a doodle pad for learning and study sessions (id.). The SETSS progress report related that the student's "active participation in class, attentive listening skills, and positive response to feedback contribute[d] to her success as a learner" (id.).
In terms of the student's social/emotional needs, the SETSS progress report noted that the student "consistently put[] in great effort to please her teachers and friends, highlighting her determination and resilience in the face of academic obstacles" (Parent Ex. F at p. 1). She was enthusiastic about class, was an attentive listener, appreciated compliments, and responded positively to "various forms of reinforcement" (id. at p. 3). The student "excel[led] socially, consistently wearing a smile that reflect[ed] her friendly and beloved nature among peers and teachers" (id. at p. 4). She initiated and maintained conversations, followed school rules, displayed independence and self-confidence, was well-liked by peers, was easy going and "rarely experience[d] frustration in school," and participated in class (id.).
Regarding her physical development, the SETSS progress report related that the student demonstrated "strong handwriting skills, producing neat and correctly formulated letters" but her handwriting legibility decreased when writing quickly and could use improvement (Parent Ex. F at pp. 3, 4). Her coordination, balance, and mobility were "up to par" (id. at p. 4).
Regarding the student's speech and language needs, the May 2024 speech-language therapy progress report related that the student presented with expressive and receptive language delays (Parent Ex. G at p. 1). Specifically, according to the report, the student had difficulty retaining and following multistep directions, answering comprehension and inferential questions based on grade level stories, demonstrated limited vocabulary, and made grammatical and spelling errors when writing (id.). The student could provide a general summary of a story but at times left out key details and needed reminders of the important points to help her summarize correctly (id. at p. 2). When following directions that included details such as time, size, or number, the student needed directions repeated to complete the task (id.).
2. Services From Gold Key
In determining the appropriateness of the SETSS and speech-language therapy provided by Gold Key, the IHO found that the Gold Key educational supervisor (supervisor) "provided a detailed explanation" of the services provided to the student during the 2023-24 school year, the student's academic delays, and the progress the student made with SETSS and speech-language therapy during the 2023-24 school year (IHO Decision at p. 9).[24]
A review of the supervisor's testimony shows that the student was a "very, very sweet . . . [and] very quiet" student (Tr. pp. 81, 86). According to the supervisor, she had observed the student in the classroom and "unfortunately, a lot of [the student's] vocabulary [wa]s missing," which she indicated was one of the student's "biggest areas of concern" reported by her providers (id.). The supervisor testified that the student "definitely d[id] not know how to sequence stories correctly because that would require . . . a higher vocabulary to put in chronology" (id.). She testified that the student needed "leading" and "scaffolding" and had made progress but was not on grade level in English language arts (ELA) or "expressive and receptive comprehension" (id. at p. 87).
The supervisor testified that for the 2023-24 school year, Gold Key began providing services to the student during the first or second week of September, which ended in "late June" (Tr. pp. 87-88). According to the supervisor, the student's services were provided at the student's nonpublic school and delivered "mostly consistently," adhering to set times and schedules (Tr. pp. 88-89). The supervisor testified that there was collaboration between the private providers and the student's teachers regarding when the student was going to be pulled out of the classroom for services or when services would be "pushed in" and delivered in the classroom (id.). The decision regarding push-in or pull-out services was made through collaboration between the "different ELA teachers and [the supervisor]" (Tr. pp. 89-90). The supervisor further testified that Gold Key providers "collaborate[d] with the teachers that [were] employed by the school as well as the therapists and support" (Tr. p. 90) According to the supervisor, the nonpublic school classroom teacher collaborated with the student's SETSS provider and would, for example, "tell [the SETSS provider] that she was going to give . . . a math lesson" and "at the beginning, [the student] may be in the classroom for the math lesson" and then be "pulled out to do the work quietly in a quiet place with the provider" (id.). The supervisor indicated that "most" of the student's speech-language therapy services were provided outside of the student's classroom but "if there was a comprehension piece, [the classroom teacher] would invite the provider into the classroom" for that specific lesson (Tr. pp. 90-91). The supervisor testified that when the student was pulled out of the classroom, services were provided in smaller classrooms (Tr. p. 91).
While the district alleges that the parent provided no evidence that the services provided by Gold Key were specially designed to meet the student's needs, a review of the Gold Key progress reports revealed that, although limited, the reports provided evidence of the specially designed instruction used with the student (see Parent Exs. F; G). The SETSS progress report identified that the student required personalized attention to help her remain engaged (Parent Ex. F at p. 1). According to the SETSS progress report, the student demonstrated improvement when provided with additional time, the "consistent" use of math manipulatives and daily flashcard reviews had "positively contributed to [the student's] advancement," and the use of a whiteboard had enhanced her engagement in math activities (id. at p. 2). Additionally, the report noted that the student benefited from 1:1 support and "interactive tools" (id.). The student's SETSS provider worked on improving the student's reading fluency by reading leveled books together and providing 1:1 reading support (id.). The SETSS provider also used visual and auditory methods, visual aids, manipulatives, mnemonics, repetition, and hands on materials (id. at p. 3). The May 2024 speech-language therapy progress report noted that the student needed reminders of the important points when summarizing a story and repetition when following directions involving details such as time, size, and number (Parent Ex. G at p. 2).
The district further alleges that the hearing record does not contain evidence of the goals that were developed for the student. The supervisor testified that Gold Key required that providers issue progress reports "several times throughout the year" and noted the SETSS progress report and speech-language therapy progress report contained in the hearing record were completed by the student's providers (Tr. pp. 84-86).[25] A review of the SETSS progress report shows that it included goals for reading, attention, math problem solving, answering higher-level thinking questions, and multiplication which align with the student's areas of need (Parent Ex. F at pp. 4-5). The student's speech-language progress report reflected both then-current goals and "[n]ew" annual goals for the student to improve her vocabulary skills, ability to answer questions related to a story and retell a story sequentially, answer a variety of "wh" questions related to literary elements, and improve expressive language skills and her ability to follow multistep directions (Parent Ex. G at pp. 2-3).
Finally, the district argues that there is no evidence of the student's progress with the services provided by Gold Key. It is well settled that a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364). However, while not dispositive, a finding of progress is, nevertheless, a relevant factor to be considered in determining whether a unilateral placement is appropriate (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).
According to the SETSS progress report, the student demonstrated improvement in math, particularly in multiplication, but still needed additional time to complete multiplication problems (Parent Ex. F at p. 2). The supervisor testified that the student had "definitely made some progress" but she was "[d]efinitely not on grade level in ELA or in any sort of expressive and receptive comprehension" (Tr. p. 87). She testified that the student was more expressive, more active in class, and was "definitely approaching grade level" but was still not there (id.). The speech-language therapy progress report stated that the student had made some progress in meeting her goals including letter and sound identification, her decoding skills had improved, and she had made progress answering "wh" questions following auditory comprehension tasks and answering reading comprehension questions, though she still needed improvement in this area (Parent Ex, G at pp. 2-3). While the evidence of the student's progress is not dispositive, in this instance it lends further support to a finding that, based on the totality of the circumstances, the parent's unilaterally obtained services were appropriate for the 2023-24 school year.
Based on the foregoing, there is insufficient basis in the hearing record to depart from the IHO's determination that the SETSS and speech-language therapy services delivered to the student by Gold Key during the 2023-24 school year were appropriate.
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"]).
1. Financial Obligation
The district first alleges that the contract with Gold Key was not authenticated by the parent and argues that it was admitted into evidence over the district's objection. The district argues that the parent did not provide any witness testimony to demonstrate an agreement and that no weight should be given to the contract. The district also contends that the electronic signature on the contract is unreliable.
Under the Burlington/Carter framework, proof of an actual financial risk incurred by parents is a prerequisite to obtaining funding of the cost of a student's unilateral placement (Town of Burlington v. Dep't of Educ. for Com. of Mass., 736 F.2d 773, 798 [1st Cir. 1984], aff'd, Burlington, 471 U.S. at 374 [stating that "financial risk is a sufficient deterrent to a hasty or ill-considered transfer" to private schooling without the consent of the school district]; see also Forest Grove Sch. Dist., 557 U.S. at 247 [citing criteria for tuition reimbursement, as well as the requirement of parents' financial risk, as factors that keep "the incidence of private-school placement at public expense . . . quite small"]).
Regarding proof of financial risk, the Second Circuit has held that some blanks that the parties did not fill in in a written agreement would not render an entire contract void and indicated that in the case before it that "the contract's essential terms—namely, the educational services to be provided and the amount of tuition—were plainly set out in the written agreement, and we cannot agree that the contract, read as a whole, is so vague or indefinite as to make it unenforceable as a matter of law" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 458 [2d Cir. 2014]). In New York, a party may agree to be bound to a contract even where a material term is left open but "there must be sufficient evidence that both parties intended that arrangement" and an objective means for supplying the missing terms (Express Indus. & Terminal Corp. v. N.Y. State Dep't of Transp., 93 N.Y.2d 584, 590 [1999]; 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91 [1991]).
The IHO admitted the parent's agreement with Gold Key over the district's objection, with counsel for the parent asserting that a witness was not required because the agreement was produced in the ordinary course of business and was self-authenticating (Tr. p. 55). The document indicates that it was for the 2023-24 school year with the term beginning on September 1, 2023 and ending on June 30, 2024 (Parent Ex. C). The document also reflects that the parent was aware that the rate for SETSS provided to the student by Gold Key was $195 per hour, that "speech services" were $290 per hour, "and that if the [district] d[id] not pay for the services [the parent] w[ould] be liable to pay for them" (id.). The agreement further stated that the student would be provided services consistent with the most current IESP and consisted of five periods per week of SETSS and two 30-minute sessions per week of speech-language therapy (id.). The agreement was made with Gold Key's letterhead and bears an electronic signature of the parent (id.). During cross-examination, the district did not ask the educational supervisor at Gold Key any questions related to the authenticity or reliability of the parent service agreement (Tr. pp. 88-94).
The IHO determined that the parent was financially responsible for the services provided by Gold Key pursuant to the agreement (IHO Decision at p. 10). Although the district has raised some questions as to the authenticity of the agreement, the district had the opportunity to raise those issues with a witness from Gold Key during the hearing but declined to do so. Under these circumstances, the IHO did not err in accepting the agreement with Gold Key as evidence and the district has not presented a sufficient basis for finding that the agreement is invalid. Accordingly, the district has not established that the parent lacked a financial obligation to Gold Key and I will not disturb the IHO's finding on this point.
2. Excessive Cost
Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]). An IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100).
Generally, an excessive cost argument focuses on whether the rate charged for the service was reasonable and requires, at a minimum, evidence of not only the rate charged by the unilateral placement, but evidence of reasonable market rates for the same or similar services.
In this case, the Gold Key educational supervisor testified that the student was provided with SETSS five times per week and speech-language therapy services for two 30-minute sessions per week (Tr. p. 83). She further testified that the SETSS provider was paid $110 per hour, while the speech-language pathologist was paid $135-140 per hour (Tr. pp. 92-93). Moreover, she testified that the overhead costs by the agency included attorney fees, which she believed for this parent amounted to between $1,500 and $1,800 (Tr. pp. 93-94). She did not know how the attorney fees were attributed or how they were paid as that was not part of her job duties (Tr. p. 95).[26] The supervisor did not testify to other overhead costs associated for Gold Key. The service contract stated that Gold Key charged the parent $195 per hour for SETSS and $290 per hour for speech-language therapy (Parent Ex. C).
The district submitted evidence in an attempt to establish a reasonable market rate (see Dist. Exs. 1-2). However, in considering the reasonableness of the rate charged by Gold Key, the IHO did not acknowledge the October 2023 AIR report, which the district offered into evidence. The IHO incorrectly found that the district "did not present any evidence or testimony regarding the equity considerations for the school year at hand" (IHO Decision at p. 10). The IHO found that the Gold Key educational supervisor testified during cross-examination that "the agency rate in relation to the rate actually paid to the servicing providers" was "consistent with administrative costs" (id.). The IHO opined that the district "cast[] a blanket statement as to the rates being unreasonable" and further "request[ed] [a] market rate be found appropriate" (id.). The IHO then stated that "the onus [wa]s placed upon the [district] to show that the rate was excessive and [to] establish with certainty [a] market rate," and determined that the district "failed to proffer any evidence to demonstrate that the requested rate [wa]s excessive" (id.). The IHO found that "[m]erely putting forth an allegation that rates [we]re excessive without any substantiation [wa]s not sufficient to warrant any reduction," and that she did "not find the requested fee sought by [the p]arent to be excessive" (id.). For those reasons, the IHO awarded the parent funding at the providers' rates as stated in the parent's service contract (id. at p. 11).
The hearing record does not support the IHO's finding that the district did not proffer any evidence to support its claim that the parent's requested rates were excessive. In addition, the IHO did not articulate a basis for declining to consider the AIR report, which was in evidence (see Dist. Ex. 1). With respect to fashioning appropriate equitable relief and its relevancy, I find that the AIR report and the district's arguments offer some basis to conclude that the SETSS rates charged by Gold Key were excessive, but not all of the AIR report and its methodologies are strictly applicable to a parent's decision to unilaterally obtain private special education services from a private company like Gold Key. First, the AIR report draws data published by the United States Bureau of Labor Statistics (USBLS), a U.S. government agency, and it is well settled that judicial notice may be taken of such tabulations of data published by government agencies (Canadian St. Regis Band of Mohawk Indians v. New York, 2013 WL 3992830 (N.D.N.Y. Jul. 23, 2013]; Mathews v. ADM Milling Co., 2019 WL 2428732, at *4 [W.D.N.Y. June 11, 2019]; Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, 364 F.Supp.3d 253 [2019]). I find that the wage information contained in the AIR Report from the USBLS is relevant to the question of how much special education teachers are paid in the New York City metropolitan region in a given year in which the data is published.[27] It was not inappropriate for the AIR to use such government-published data in its report. The data set in the New York, New Jersey and Pennsylvania region can be further limited and refined to the New York City, Newark, and Jersey City metropolitan region. It is reasonable to find that most teachers (public and private) working with special education students in New York City fall within this subset of data that is the greater metropolitan region specified in USBLS data ("May 2023 Metropolitan and Nonmetropolitan Area Occupational Employment and Wage Estimates New York-Newark-Jersey City, NY-NJ-PA," available athttps://www.bls.gov/oes/current/oes_35620.htm).[28] Furthermore, the geographic data in this metropolitan subset does not have to be perfect in order to be sufficiently reliable for use when weighing equitable considerations.
The AIR report appears to address a question of what kind of approach "NYC DOE can use to determine a fair market rate for its Special Education Teacher Support Services (SETSS)" (Dist. Ex. 1 at p. 4). If the district were to offer hourly rates that were formulated on a negotiated basis (i.e. to employees paid on an hourly basis), it would understandably try to do so in a similar manner to the way it used its bargaining power in negotiations with both the United Federation of Teachers and other entities for fringe benefits and incidental costs that result in the pay scales for public school employees.
However, a parent facing the failure of the district to deliver his or her child's IESP services and who is left searching for a unilaterally selected self-help remedy would be unable to hire teachers already employed by the district (unless a teacher is "moonlighting" and thus dually employed), and the parent facing that situation would therefore not be able to negotiate for private teaching services with the same bargaining power that the district holds. Thus, while the AIR report's reliance on the salary schedules negotiated with the United Federation of Teachers that include provisions for steps, longevity, and criteria for additional experience and education, these provisions serve a different purpose⸺they are designed to ensure fair treatment among union members who are operating in public employment. But the fair treatment among district employees is of little or no interest to a parent who is trying to contract for services with private schools or companies after the district has failed in its obligations to deliver the services using its employees, and thus the district negotiated provisions are not particularly relevant to equitable considerations in a due process proceeding involving the funding of unilaterally obtained services.
Fortunately, the USBLS data does not indicate that it is limited to district-employed teachers. It covers wages in the entire metropolitan region, which would include teachers from across the spectrum including private schools, charter schools, and district special teachers. The USBLS indicated that in May 2023 data annual salaries for "Special Education Teachers, All Other" ranged from $49,000 in the 10th percentile, $63,740 in the 25th percentile, $97,910 in the median, $146,200 in the 75th percentile, to $163,670 in the 90th percentile.[29]
In my view this is consistent with the fact that some local and private employers within the metropolitan region pay less than those in the district, and it leaves room for the fact that a few employers may have paid more. As for fringe benefits and incidental costs, private employers who offer benefits and have overhead costs are not necessarily the same as those costs cited in the AIR report, which is premised upon the district's costs, not the parent's costs. Reliance on such costs may be permissible when the district is managing its own operations and negotiating with a labor organization, but it is not relevant to the private situation in a Burlington/Carter unilateral private placement. Again, the USBLS provides data for indirect and fringe benefit costs for civilian, government employees and private industry expressed as a percentage of salary, and for private industry such educational services costs were 27.7 percent, which tends to show that government benefits are often slightly better (and more expensive) than those offered in private industry (see Employer Costs For Employee Compensation (ECEC) – June 2023, available athttps://www.bls.gov/news.release/archives/ecec_09122023.pdf).[30]
The undersigned had little difficulty with the explanation in the AIR report that children must be educated for 180 days per year in this state and that school days are typically between six and seven hours long.[31] I will take this into account when ordering equitable relief.
As stated above, the Gold Key educational supervisor testified that the SETSS provider was paid $110 per hour (Tr. p. 92). However, the contract stated that Gold Key charged the parent $195 per hour, which the IHO awarded (see Parent Ex. C; IHO Decision at p. 11). The amount of indirect costs, in this case, are approximately 56 percent for SETSS services, based on the hourly rate of $195. This falls far above the 27.7 percent in the USBLS data.
When considering the testimony described above, in which Gold Key's educational supervisor identified only attorney fees as a category of indirect costs that factored into the hourly rate charged and did not did not present evidence of the actual costs or why such expenses would justify the amount of indirect costs included in the hourly rate charged, the evidence leads me to the conclusion that the parent arranged for services from Gold Key at an excessive cost and the IHO erred in failing to reduce the parent's requested rates. However, some indirect or overhead cost is reasonable. When using the salary of the SETSS provider ($110 per hour) and calculating for overhead costs equating to 27.7 percent of the overall rate, an overall reasonable rate for SETSS with the provider making $110 per hour would be $152.14 per hour for SETSS. As such, I will order that SETSS should be awarded for the 2023-24 school year at the rate of $152.14 per hour as an equitable remedy.
With regard to related services, the district offered its independent provider rate schedule (Dist. Ex. 2). However, I will take judicial notice of the USBLS data for May 2023. The USBLS data for special education teachers did not include hourly wages necessitating the additional computations set forth above. However, hourly wages are reported specifically by the USBLS for speech-language pathologists and occupational therapists, and will be considered below.
The USBLS indicated that in May 2023 data hourly wages for "Speech-Language Pathologists" in the New York City metropolitan region ranged from $22.34 in the 10th percentile, $34.11 in the 25th percentile, $48.71 in the median, $63.71 in the 75th percentile, to $76.64 in the 90th percentile.[32] Taking into account 27.7 percent for indirect costs as described above, an hourly rate to be charged for speech-language therapy based on the USBLS data would range from $30.90 to $106.00 (median $67.37), all of which are well below the $290 charged by Gold Key. Therefore, I find the contracted rate to be excessive. As indicated in the discussion of the SETSS rate, some indirect or overhead cost is reasonable and I will calculate the rate for the speech-language therapy based on rate paid to the provider of $135 per hour in accordance with the testimony of the educational supervisor, which is still well over the 90th percentile rate identified in the USBLS data. When using the salary of the speech-language therapist ($135 per hour) and calculating for overhead costs equating to 27.7 percent of the overall rate, an overall reasonable rate for speech-language therapy services, with the provider making $135 per hour, would be $186.72 per hour. Therefore, I find that the awarded amount for speech-language therapy services should be limited to $186.72 per hour.
3. 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).
At the outset I note that the parent incorrectly argues that she has no obligation to provide the district with 10-day notice of her intent to unilaterally obtain services for the student and seek public funding for those costs. The hearing record reflects that the parent did not provide the district with a 10-day notice letter. The parent entered into a contract with Gold Key on September 1, 2023 that indicated that services would begin on September 1, 2023 (Parent Ex. C).[33] However, the parent first provided the district with notice of her unilaterally obtained services and requested direct funding in her November 1, 2023 due process complaint notice (Parent Ex. A at p. 3).
Based on the foregoing, the parent did not provide notice of intent to unilaterally obtain services more than 10 business days before the student began receiving services from Gold Key on September 1, 2023. The parent entered into an agreement with Gold Key and the student began receiving services before the parent provided notice of the student's removal from the district program (see Reg'l Sch. Unit 51 v. Doe, 920 F. Supp. 2d 168, 210-12 [D. Me. 2013]; Sarah M. v. Weast, 111 F. Supp. 2d 695, 701–02 [D. Md. 2000]; see also Landsman v. Banks, 2024 WL 3605970, at *3 [S.D.N.Y. July 31, 2024] [in discussing timing of a 10 day notice, referring to the date of enrollment as the date the student began attending the unilateral placement separate from the date the contract was signed]; A.D. v. Creative Minds Int'l Pub. Charter Sch., 2020 WL 6373329, at *6-*7 [D.D.C. Sept. 28, 2020]). Therefore, the evidence in the hearing record supports a finding that the parent is not entitled to funding for her unilaterally obtained services until after November 1, 2023, when she first provided written notice to the district in her due process complaint notice.
As noted above, the purpose of the 10-day written notice is to give the district an opportunity, before the child is removed, to evaluate the student, convene a CSE and to develop an appropriate program. In this matter, the hearing record indicates that a CSE last convened on March 26, 2019. Accordingly, while I will not award funding to the parent for services delivered to the student prior to her giving the district an opportunity to remedy its failures, the district's failure to demonstrate any effort to convene a CSE to conduct an annual review for the student over the course of multiple school years weighs against any further reduction of the parent's requested relief.
VII. Conclusion
The IHO's finding that the district failed to offer the student a FAPE for the 2023-24 school year has not been appealed from and is final and binding on the parties and, as discussed above, the IHO's finding that the parent demonstrated that the unilaterally obtained SETSS and speech-language therapy were appropriate for the student will not be disturbed. However, the IHO erred in granting the parent funding at the providers' enhanced rates, as equitable considerations do not fully favor the parent. Overall, the hearing record supports finding that the parent failed to timely notify the district of her intent to unilaterally obtain services for the student for the 2023-24 school year prior to November 1, 2023 and the rates sought by the parent for the services delivered by Gold Key were excessive. Accordingly, the parent is entitled to direct funding, upon proof of services delivered, from November 1, 2023 through the end of the 2023-24 school year at the rate of $152.14 per hour for up to five periods of SETSS per week and $186.72 per hour for up to two 30-minute sessions of speech-language therapy per week.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's decision dated December 26, 2024, is modified by reversing those portions which found equitable considerations entitled the parent to direct funding for SETSS and speech-language therapy at the requested rates; and
IT IS FURTHER ORDERED that upon receipt of proof of delivery of services, the district shall directly fund up five hours per week of SETSS provided to the student by Gold Key at a rate not to exceed $152.14 per hour, and up to one hour per week of speech-language therapy provided to the student by Gold Key at a rate not to exceed $186.72 per hour for the period of November 1, 2023 through June 30, 2024.
Footnotes
[1] Gold Key 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).
[2] 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]).
[3] The parent's exhibits are not paginated, and each include a cover sheet. For the purposes of this decision, the exhibits will be cited by reference to their consecutive pagination with the first page of the document (see Parent Exs. B-G). The cover sheet will not be cited. It is noted that the due process complaint notice was the only exhibit that was paginated (see Parent Ex. A).
[4] 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.
[5] The parent initialed an electronic signature line on the contract that included a date that is not entirely legible (Parent Ex. C). However, upon review, the document appears to have been initialed by the parent on September 1, 2023 (id.).
[6] The Gold Key contract does not identify whether speech-language therapy was to be provided in individual or group sessions, however the Gold Key supervisor testified that Gold Key provided the student with five hours of SETSS per week and two 30-minute sessions of individual speech-language therapy per week (Tr. pp. 82-83; Parent Ex. C).
[7] The district submitted a November 9, 2023 due process response, which concerned a different student.
[8] Status conferences were held on November 8, 2023, December 8, 2023, January 10, 2024, February 8, 2024, March 6, 2024, March 28, 2024, May 1, 2024, May 23, 2024, June 24, 2024, and July 18, 2024 (Tr. pp. 1-49). According to the transcript, the November 8, 2023 hearing date was initially scheduled for a pendency hearing (Tr. p. 2). The parties indicated that the district had agreed to pendency and the hearing date was "converted into a status conference" (Tr. pp. 2-3). Neither party appeared on December 8, 2023; the district did not appear on January 10, 2024, March 28, 2024, and June 24, 2024 (Tr. pp. 5-6, 8-11, 25-28, 41-43). The impartial hearing was scheduled to begin on July 18, 2024; however, the parent did not appear (Tr. pp. 45-48). On November 4, 2024, the district did not appear; however, the district representative had communicated with the IHO prior to the hearing date and the district's closing brief was accepted into evidence without objection from the parent (Tr. pp. 101-02).
[9] The hearing record does not include a copy of the district's motion to dismiss or the parent's written opposition to the district's motion (Tr. pp. 69-70).
[10] The IHO's decision is not paginated. For the purposes of this decision, the pages will be cited by reference to their consecutive pagination with the cover page as page one (see IHO Decision at pp. 1-18).
[11] The IHO indicated that the Burlington/Carter standard would be applied to the case (IHO Decision at p. 7).
[12] The IHO specifically noted that the district failed to implement the IESP and delegated its obligations to the parent (IHO Decision at p. 9).
[13] The IHO noted that the order excluded any sessions that may have been previously paid by the district pursuant to the pendency order (IHO Decision at p. 11).
[14] The district has not appealed from the IHO's determination that its failure to implement equitable services constituted a denial of a FAPE to the student for the 2023-24 school year (IHO Decision at p. 8). Accordingly, that finding has 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]).
[15] 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]).
[16] 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.
[17] In her answer, the parent asserts that the district's appeal of the IHO's denial of its motion to dismiss this matter on the grounds of subject matter jurisdiction was untimely. The parent argues that the IHO issued her decision on the district's motion to dismiss on September 19, 2024, and that the district's request for review was not timely as it was served February 3, 2025 (Answer at pp. 1-2; see Req. for Rev. Decl. of Service). An appeal from an IHO's decision to an SRO must be initiated by timely personal service of a notice of request for review and a verified request for review and other supporting documents upon a respondent (8 NYCRR 279.4[a]). A request for review must be personally served within 40 days after the date of the IHO's decision to be reviewed (id.). However, the parent's assertion is without merit as State regulation provides that in an appeal to the Office of State Review from a final determination of an IHO, a party may seek review of any interim ruling, decision, or failure or refusal to decide an issue (8 NYCRR 279.10[d]). In this instance, the district's appeal of the IHO's denial of its motion to dismiss is timely as the timeline for an appeal ran from the issuance of the IHO's final decision on December 26, 2024 rather than the interim determination. Additionally, the appeal from the interim decision relates to subject matter jurisdiction, which can be raised at any time in the proceedings, including on appeal (see U.S. v. Cotton, 535 U.S. 625, 630 [2002]; Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 733 [2d Cir. 2007] [ordering supplemental briefing on appeal and vacating a district court decision addressing an Education Law § 3602-c state law dispute for lack of subject matter jurisdiction]). Indeed, a lack of subject matter jurisdiction "can never be forfeited or waived" (Cotton, 535 U.S. at 630).
[18] This provision is separate and distinct from the State's adoption of statutory language effectuating the federal requirement that the district of location "expend a proportionate amount of its federal funds made available under part B of the individuals with disabilities education act for the provision of services to students with disabilities attending such nonpublic schools" (Educ. Law § 3602-c[2-a]).
[19] The district did not seek judicial review of these decisions.
[20] A statutory or regulatory amendment is generally presumed to have prospective application unless there is clear language indicating retroactive intent (see Ratha v. Rubicon Res., LLC, 111 F.4th 946, 963-69 [9th Cir. 2024]). The presence of a future effective date typically suggests that the amendment is intended to apply prospectively, not retroactively (see People v. Galindo, 38 N.Y.3d 199, 203 [2022]). The due process complaint notice in this matter is dated November 1, 2023, prior to the July 16, 2024 date set forth in the emergency regulation (see Parent Ex. A). Since then, the emergency regulation has lapsed.
[21] On November 1, 2024, the Supreme Court, Albany County, issued a second order clarifying that the temporary restraining order applied to both emergency actions and activities involving permanent adoption of the rule until the petition was decided (Order, O'Connor, J.S.C., Agudath Israel of America, No. 909589-24 [Sup. Ct., Albany County, Nov. 1, 2024]).
[22] Neither the guidance nor the district indicated if this jurisdictional viewpoint was conveyed publicly or only privately to the district, when it was communicated, or to whom. There was no public expression of these points that the undersigned was aware of until policymakers began rulemaking activities in May 2024; however, as the number of allegations began to mount that the district's CSEs had not been convening and services were not being delivered, at that point the district began to respond by making unsuccessful jurisdictional arguments to SRO's in the past, which decisions were subject to judicial review but went unchallenged (see e.g., Application of a Student with a Disability, Appeal No. 23-121; Application of a Student with a Disability, Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-0681). The guidance document is no longer available on the State's website; thus, a copy of the August 2024 rate dispute guidance has been added to the administrative hearing record.
[23] 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 Gold Key Learning LLC (Educ. Law § 4404[1][c]).
[24] The district has not pointed to anything in the hearing record to refute the IHO's credibility determination and, as such, the IHO's determination will be given deference (see IHO Decision at p. 9). Generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076).
[25] The hearing record contains only the March 2024 SETSS report and the May 2024 speech-language therapy progress report (see Parent Exs. F; G).
[26] Although, the educational supervisor testified that she believed that between $1,500 to $1,800 went to attorney fees, there is no other corroborating evidence in the hearing record to substantiate that the requested rates included attorney fees. Nevertheless, the due process hearing provisions in the IDEA do not authorize an administrative hearing officer to grant relief in the form of attorney's fees, and instead, at least in this jurisdiction, "in any action or proceeding brought under the IDEA, a court 'may award reasonable attorneys' fees...to a prevailing party who is the parent of a child with a disability'" (S.J. v. New York City Dep't of Educ., 2022 WL 1409578, at *1 [2d Cir. May 4, 2022]; see 20 U.S.C. § 1415[i][3][B][i][I]). Thus, it would not be permissible for the IHO or the undersigned to award any reimbursement related to attorney fees or expenses, and I note that the parent's attorney failed to clarify on the record whether Gold Key was responsible for or facilitating the collection of the attorney fees for the parent. While awarding attorney fees is not permissible in a due process proceeding, it is permissible to inquire and determine the extent to which any fees may be part of any relief sought from the IHO, whether the inquiry is directed at the staff of the private school, the private company, or the parent.
[27] The Occupational Employment and Wage Statistics data is published by the USBLS starting in May of each calendar year, and the AIR report in evidence used May 2022 data, which preceded the 2023-24 school year at issue in this proceeding and would be relevant thereto (seehttps://www.bls.gov/oes/tables.htm); however, I note that May 2023 data is the most relevant annual data published by the USBLS to the 2023-24 school year, the school year at issue in this matter. While the AIR report presented a snapshot in time, the USBLS data is updated annually, which is particularly relevant when considering due process claims under IDEA and Article 89 are almost always related to a specific annual time period.
[28] The New York wage excerpt shows a mean wage of $117,120 from the USBLS' May 2022 data for the same occupation in the same New York metropolitan region, but because this case relates to the 2023-24 school year, the undersigned has taken judicial notice of the USBLS' data from May 2023, which is closer in time to the events of this case (Dist. Ex. 1 at p. 2).
[29] The 2023 data for the metropolitan area is available in a downloadable Excel format, or the most recent statics offered can be searched using the USBLS Query System for "Multiple occupations for one geographical area" (seehttps://data.bls.gov/oes/#/home). A larger file with all regions for May 2023, including the New York-Newark-Jersey City metropolitan region is also available (https://www.bls.gov/oes/special-requests/oesm23ma.zip).
[30] The ECEC covers the civilian economy, which includes data from both private industry and state and local government. One could make an argument that a company like Enhanced should fall in one of the different rows of private employers, but it would result in only nominal differences in calculation, and the parent did not avail herself of the opportunity to develop the record in any detail regarding the indirect costs beyond that of the teacher's hourly wage.
[31] Using 6.5 hours results in approximately 1170 hours of instruction time for students during a school day, and similar to teachers, related services are typically provided to students on a similar schedule during the school day.
[32] The Speech Language Pathologist wage data for New York City is located in the same USBLS Excel data file as described above for special education teacher wage data (see, e.g., https://www.bls.gov/oes/special-requests/oesm23ma.zip).
[33] The educational supervisor at Gold Key testified that she believed the student began receiving services during the first week of school in September 2023 (Tr. p. 87).