STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-069
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 Gil Auslander, 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 Aim Further Inc. (AIM) and Encore Support Services (Encore) for the 2023-24 school year. The appeal must be dismissed.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed, and, therefore, the facts and procedural history of this case will not be recited in detail. Briefly, a CSE convened on April 30, 2023, to develop an IESP for the student with a projected implementation date of May 15, 2023 (Parent Ex. B at p. 1). The CSE found the student eligible for special education services as a student with a speech or language impairment (id.).[1] The April 2023 IESP indicated the student attended a nonpublic school, and the CSE recommended that the student receive three periods per week of (unspecified size) group special education teacher support services (SETSS) with instruction in Yiddish, and two 30-minute sessions per week of individual speech-language therapy in Yiddish (id. at p. 9).[2] The district summarized the recommendations of the April 2023 CSE in a prior written notice also dated April 30, 2023 (Dist. Ex. 5 at p. 1).
In a "Notice of Residence to School District of Location" letter dated May 30, 2023, the parent, through her attorney, provided the district with her address and communication information, indicated that she understood the student was entitled to receive services and special education programming from the district, advised the district that she wanted the student to receive the services she required via the district, and provided consent for the district to provide the student "with all necessary special education and services" (Parent Ex. C). The letter further indicated that for the 2023-24 school year, the student would be parentally placed at a nonpublic school (id.).
On November 14, 2023, the parent entered into an agreement with AIM for the provision of "3 hours of SETTS [sic] per week" and "2 hours of speech per week" for the 2023-24 school year (Parent Ex. D at pp. 1-2).[3]
On January 10, 2024, the student's father entered into an agreement with Encore for the provision of speech-language therapy for the 2023-24 school year (Parent Ex. M at p. 3).[4]
A. Due Process Complaint Notices
In a due process complaint notice dated July 15, 2024, the parent alleged that she was compelled to find a provider to deliver to the student's speech-language therapy at an enhanced rate for the 2023-24 school year (Parent Ex. N).
In a second due process complaint notice dated September 4, 2024, the parent, through her attorney, alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A). The parent further alleged that the district had failed to implement the April 2023 IESP and that she had been unable to locate a provider on her own accord (id. at p. 2). For relief, the parent requested, among other things, an order requiring the district to fund the services recommended to the student for the 2023-24 school year at the provider's contracted rate or fund a bank of compensatory periods of all services which the student was entitled under pendency for the 2023-24 school year or not provided by the district (id. at pp. 2-3).
In an order on consolidation dated September 26, 2024, an IHO with the Office of Administrative Trials and Hearings (OATH) consolidated the parent's July 15, 2024 and September 4, 2024 due process complaint notices into one matter (Order on Consolidation).
B. Impartial Hearing Officer Decision
An impartial hearing convened over the course of three dates on October 15, 2024, November 25, 2024, and November 26, 2024. (Tr. pp. 1-182).[5] In a decision dated December 27, 2024, the IHO found that the district failed to meet its burden of establishing that the student was offered a FAPE for the 2023-24 school year as the district failed to present witness testimony to explain how the program recommendations contained in the April 2023 IESP would be implemented (IHO Decision at p. 8). Turning to the parent's unilaterally-obtained services, the IHO found that the parent met her burden in establishing their appropriateness (id. at pp. 8-9).
The IHO then determined that equitable considerations favored the parent and awarded the parent direct funding of the unilaterally-obtained services (IHO Decision at pp. 10-12). Specifically, the IHO considered the parent's departure from the hearing before the district completed its cross-examination of the parent (id. at p. 11). While the IHO noted that she did not condone the parent leaving the hearing during the district's cross-examination of her and that the IHO did not consider any of the parent's testimony as a consequence of the parent's behavior, the IHO found that "there is enough documentary evidence and testimony in the record aside from the [p]arent's testimony to support the [p]arent's requested relief" (id.).
The IHO awarded relief consisting of direct funding for three sessions of SETSS per week and two 30-minute sessions of speech-language therapy for week for the 2023-24 school year at the rate set by the providers (IHO Decision at p. 12).
IV. Appeal for State-Level Review
The district appeals, alleging that the IHO erred in finding that the parent had met her burden of establishing the appropriateness of the unilaterally-obtained services and that equitable considerations favored the parent. Specifically, the district contends that the testimony and documentary evidence offered at the impartial hearing was not sufficient to meet the parent's burden of proof as to the appropriateness of the unilaterally-obtained services. Further, the district argues that multiple deficiencies in the parent's conduct, including the filing of multiple due process complaint notices, failing to show an obligation to pay for services, and absconding from the hearing, all militate against a finding that equitable considerations favor the parent.
The parent did not submit an answer to the district's appeal.
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]).[6] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[7] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
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. Unilaterally-Obtained Services
The district does not appeal from the IHO's decision that its failure to implement the April 2023 IESP resulted in a denial of a FAPE to the student for the 2023-24 school year (IHO Decision at p. 8). Accordingly, this determination has become final and binding upon the parties (see 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]).
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, unilaterally obtained private services from AIM and Encore 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]).[8] 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 v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203-04 [1982]; 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).
Here, as discussed below, there is no basis for disturbing the IHO's finding that services provided by AIM and Encore were appropriate to address the student's individual needs.
1. Student's Needs
The student's needs are not in dispute and a review thereof will provide the background necessary to evaluate the appropriateness of the services provided to the student by AIM and Encore during the 2023-24 school year.
With respect to the student's cognitive functioning, the April 2023 IESP reflected the results of an undated administration of the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V), which yielded a full-scale IQ in the "[v]ery [l]ow range" (Parent Ex. B at p. 1). According to the IESP, the student's performance on the WISC-V resulted in scores in the "[e]xtremely [l]ow" range " on the fluid reasoning index, "[v]ery [l]ow" range on the verbal comprehension and processing speed indices, and the "[l]ow [a]verage" range on the visual spatial and working memory indices (id.).
The April 2023 IESP also reflected the results of a December 2, 2021 administration of the Wechsler Individual Achievement Test-Third Edition (WIAT-III) used to assess the student's academic achievement (Parent Ex. B at p. 1). On the WIAT-III the student attained "[b]elow [a]verage" scores on the reading comprehension and numerical operations subtests (id.). In addition, the student performed in the "[a]verage" range on the word reading, spelling, and pseudoword decoding subtests (id.). The IESP also noted the student's composite score for basic reading was "[a]verage" and for math fluency was "[b]elow [a]verage" (id. at p. 2).
Next, the IESP noted that, according to the results of an unspecified speech-language evaluation, the student demonstrated mildly reduced receptive language skills and age-appropriate expressive language skills, as measure by the "CELF-5 and informal measures" (Parent Ex. B at p. 2). The IESP further noted that as measured by the "GFTA-3 and informal measures" the student's intelligibility was "mildly to moderately reduced in single words and running speech" (id.). The April 2023 IESP indicated that according to a previous IESP the student spoke and understood Yiddish and was Yiddish dominant (Parent Ex. B at p. 2). The IESP suggested that at the time it was written the student was receiving bilingual speech-language therapy (id at p. 1).
The April 2023 IESP included information from a January 26, 2023 speech-language report that indicated in addition to articulation distortions of /sh/, /zh/, /ch/, dzh/, /s/, and /z/ sounds, the student had difficulty with poor habitual resting tongue posture and a tongue thrust which affected eating and swallowing (Parent Ex. B at p. 2). The IESP noted she presented with jaw-sliding during speech production (id. at p. 3). As reflected in the IESP, the January 2023 speech-language report indicated that the student had poor higher-order thinking skills characterized by difficulty making inferences and problem solving (id. at p. 2).
With regard to the student's speech-language development, the April 2023 IESP included the narrative from the student's previous IESP that indicated the student's relative strengths in receptive language were related to her ability to comprehend a variety of word relationships, including items in the same category and the location in which the item was found (id. at p. 2). In contrast, the student demonstrated a decreased ability to understand a variety of sentences such as those containing modification, a prepositional phrase, or a relative clause (id. at pp. 2-3). The April 2023 IESP also highlighted the student's relative strengths in expressive language, found in her prior IESP, related to her ability to produce sentences with a given word about a specific picture as well as recalling sentences with structural features and the meaning intact (id. at p. 3). It further noted that the student demonstrated adequate critical thinking skills when explaining why words were semantically related and that her use of specific vocabulary was adequate (id.). The IESP also stated that the student's narrative language analysis showed use of age-appropriate sentence structures and clausal density and her comprehension of the main idea and recall of supporting details of narratives and picture stimuli represented in a narrative were within normal limits (id.). According to the IESP, the student's ability to make inferences and predictions was reduced (id.).
In terms of the student's social development, the April 2023 IESP stated that, per the prior IESP, other students had difficulty relating to the student due to her expressive delays and unclear speech (Parent Ex. B at p. 3). The April 2023 IESP reflected the results of an unspecified social history that indicated the student was well behaved, helpful and cooperative (id.). The student was described as friendly and as able to relate well to others (id.). She was able to share and take turns, initiate interaction after acclimating to situations, and would respond appropriately to others (id.). The student was described as having an average attention span, able to follow directions depending of her level of focus and easily distracted depending on her level of interest (id.). According to the April 2023 IESP, as part of the social history the parent reported that the student's speech difficulties could affect socialization as other children made fun of her at times (id. at pp. 3-4). In addition, the student could become intimidated or nervous easily such as when there was a change in routine (id. at p. 4). The April 2023 IESP noted that as per the student's social history, the student was creative, imaginative, curious, and affectionate (id.). She enjoyed arts and crafts, drawing, and scooter riding (id.). With regard to physical development, the April 2023 IESP indicated the student did not have physical concerns at the time of the CSE meeting (id.).
The April 2023 IESP included a list of resources and strategies to address the student's management needs and facilitate progress in the classroom (Parent Ex. B at p. 4). These included rephrasing and repetition, use of a multi-sensory approach during instruction, positive reinforcement, speech-language therapy, and SETSS (id.).
2. SETSS from AIM
The parent entered into an agreement with AIM that indicated that the agency would "make every effort to implement the recommended services with suitably qualified providers for the 2023-24 school year" (Parent Ex. D at p. 1). The contract stated, in pertinent part, that AIM intended to provide SETSS at the rate of $218 per hour (id. at p. 2; see Parent Ex. G at ¶ 4). The AIM quality assurance supervisor and the agency's person in charge of finance, each testified by affidavit that AIM provided the student with three hours per week of individual SETSS sessions for the 2023-24 school year (Parent Exs. G at ¶¶2-4; H at ¶¶3, 7). According to the AIM quality assurance supervisor, the SETSS sessions occurred after school in either the student's home or at the provider's home-based practice area (Nov. 25, 2024 Tr. pp. 66-67; Parent Ex. H at ¶¶ 11, 14).
Although the mandate on the student's April 2023 IESP was for group SETSS sessions, AIM provided individual SETSS sessions to the student because AIM was not able to logistically find a group of similarly situated students (Nov. 25, 2024 Tr. pp. 72-73; Parent Ex. H at ¶8). The AIM quality assurance supervisor identified the name of the provider of the individual SETSS sessions and indicated that the provider held State certifications to teach students with disabilities; that the provider was trained and experienced in teaching literacy and comprehension to school-aged children and adolescents, and that the SETSS provider delivered services to the student bilingually in Yiddish and in English (Nov. 25, 2024 Tr. pp. 69-70; Parent Ex. H at ¶ 9).[9] In addition to delivering SETSS to the student, the provider prepared for sessions, created goals, wrote progress reports, and met with parents and teachers (Parent Ex. H at ¶ 10).
Review of a SETSS progress report dated June 20, 2024 shows the provider addressed the student's reading, writing, mathematics, and receptive and expressive language deficits, as well as her social, emotional, and behavioral weaknesses (see generally Parent Ex. F). With regard to reading, the progress report indicated the student had been assessed using the "Reading A-Z" benchmark passages (id. at p. 1). The progress report stated the student could read all of the sight words her class had learned up to that point in time (id.). In addition, she was able to decode at grade level (id.). However, the progress report indicated that the student, who was in fourth grade at the time, demonstrated reading comprehension skills at a third-grade level (id.). According to the progress report, the provider and the student were working on answering higher-order inferential questions and the provider reported seeing "nice improvement" (id.). The student had learned to predict what will happen next (id.). The progress report noted that the student struggled to answer questions related to cause and effect and was using graphic organizers to assist her (id.). It further noted that, in general, the student did not find pleasure in reading (id.). She did not read on her own time and did not choose to use text as a method of research for her projects (id.). She also did not enjoy being read to by others (id.).
According to the progress report, to facilitate progress in reading comprehension skills, the provider stopped to ask "WH" questions after every few sentences (Parent Ex. F at p. 1). The purpose of this was to ensure comprehension was maintained throughout the reading. (id.). In addition, the progress report stated the student "was learning various comprehension strategies to improve her comprehension" (id.). For example, she had been taught to highlight key facts or details as she read, as well as to paraphrase a paragraph or sentence in her own words or re-read a passage after the instructor modeled a comprehension strategy for the student to practice (id. at pp. 1-2). The progress report indicated that the provider also focused on setting, characters, plot, and main events by using puppets as props (id. at p. 2). The student then compiled all the details gathered and tried answering basic questions and higher-order thinking questions related to the text (id.). The provider and student used workbooks, passages, and worksheets with accompanying questions to continue to practice reading comprehension skills (id.).
Going forward, the SETSS progress report indicated the student needed practice defining various literary elements which were appropriate for fourth graders to learn (Parent Ex. F at p. 2). The provider reported she used flashcards and chants to help the student memorize some definitions of literary elements (id.). Although the provider also gave the student simple passages that contained one of the literary elements learned for the student to have an easy time finding and describing the idea, it was still difficult for the student (id.). According to the progress report, the student needed lots of encouragement so that reading would become a means of gathering information, a skill the provider noted was vital for the student to use all her life as a student and beyond (id.). The provider also used a rewards system (chart) and positive reinforcement to encourage the student to read more on her own (id.).
With regard to the student's writing skills, the June 2024 SETSS progress report indicated that, the student was performing below grade level with some of her writing skills and on grade level with other skills (Parent Ex. F at p. 2). The provider reported that the student's handwriting was age-appropriate and at least some of her grammar skills were on grade level (e.g., some punctuation and simple sentence structures) (id.). She further reported that the student's spelling was "well below grade level" and indicated she used sand and clay "to form words" and kept each mastered word in a ring to review (id.). The provider worked on identifying nouns, pronouns, verbs, and adverbs with the student as well as reviewed a variety of sentence structures with different uses for commas and other punctuation (id.). The SETSS progress report indicated the student's grammar skills were improving (id.).
The June 2024 SETSS progress report indicated that according to the Acadience math concepts and applications assessment the student was performing on a fourth grade level, below benchmark range (Parent Ex. F at p. 2). According to the progress report, the student was learning fractions and seemed to be grasping the concept along with the class (id.). She did well on her math tests and could problem-solve with oral math problems and written word problems (id.). The progress report noted the provider worked with the student's math skills every few sessions to review and strengthen old and current skills (id.).
With regard to receptive language skills, the SETSS progress report indicated the student made progress (Parent Ex. F at pp. 2-3). She could follow one-, two-, and multi-step directions more accurately than in the past (id. at p. 3). In addition, she made eye contact with others when engaged in a conversation (id.). The provider reported that the student had difficulty understanding idioms, abstract and figurative language, new words from their context, and participating in group learning (id.). The provider had the student practice using idioms and figurative language in her speech in order to practice her language skills (id.). In addition, she helped the student learn the meaning of new words using text she specially designed for that purpose and also encouraged the student to use a dictionary and add drawings to new words "for interest and clarity" (id.).
With regard to expressive language skills, the SETSS progress report indicated the student could speak on topic when in a conversation and she maintained eye contact (Parent Ex. F at p. 3). However, she did not normally use full sentences, but rather spoke using one-word answers or at most a few words together (id.). In addition, the provider indicated the student's word choice was usually immature and her speech was unclear (id.). According to the provider, the student's facial expressions and tone did not match what she was trying to convey (id.). The student did not initiate conversations with peers or adults nor did she carry the conversation for a few exchanges as would be appropriate for a child her age (id.).
To practice using full sentences, the provider used some role-play and some puppet-play with the student in addition to a whiteboard and worksheets to write out the sentences (Parent Ex. F at p. 3). The student was encouraged and rewarded for practicing this skill with her peers and with other adults (id.). According to the provider, the student made some slow but steady progress (id.). The provider explained that in order to increase the student's grasp of English she taught her poems and songs in English, which work better than books or texts which the student had less patience with (id.).
With regard to social, emotional, and behavioral skills, the SETSS progress report indicated the student seemed to have classmates with whom she sometimes spoke during recess (Parent Ex. F at p. 4). However, the student insisted she did not need friends and on most days, the student did not play with others during recess (id.). According to the provider, the student's emotions were usually hard to see because she was generally reserved (id.). She did not make use of appropriate facial expressions and tone when speaking, something that made it difficult to ascertain her emotional state (id.). The provider reported that during one-to-one sessions, the student participated nicely and did not display any difficult behaviors (id.). The provider opined that the student needed assistance in opening up more, making and keeping friends, learning about her emotions, and how to portray them properly (id.). She noted the student also needed assistance on how to express her needs, learn in a group setting, and be part of a team (id.). The SETSS progress report noted that overall, the student demonstrated slow but steady progress with regard to her social skills (id.). The provider reported the student was slowly learning how to build healthy relationships with her friends (id.).
Overall, the SETSS progress report indicated the student had delays in areas that hindered her success in the classroom (Parent Ex. F at p. 4). Specifically, the provider stated the student's reading comprehension, writing, and spelling skills were well below grade level and were hindering her success and sense of wellbeing (id.). Additionally, her poor expressive language skills as well as her social-emotional difficulties made it hard for her to learn successfully in a group (id.). It was highly recommended that the student's SETSS continue (id.).
While the student's progress during the 2023-24 school year varied depending on the skill or educational need at issue, as detailed above, the report does describe that the student made some progress during the 2023-24 school year with the support of the SETSS she received from AIM (see Parent Ex. F). Moreover, it is well settled that, while a relevant factor (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]), 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).
Based on all of the foregoing, I find that there is sufficient evidence to show that the student received SETSS from AIM, and that the provider identified the student's unique needs and delivered instruction specially designed to meet those needs during the 2023-24 school year. While it may have been preferable for the SETSS provider to identify more clearly how she knew the specifics of some aspects of the student's classroom functioning, given evidence in the hearing record that the SETSS sessions were provided at a separate location or in some instances at the student's home, under the particular circumstances of this matter, the provider nonetheless identified supports and strategies targeting the student's areas of academic delay and overall educational needs, including social-emotional needs, and described to some degree how the special education services provided were assisting her in progressing in the fourth grade curriculum, albeit with some continued delays. Moreover, the hearing record contains some evidence that part of the SETSS provider's duties included meeting with teachers (Parent Ex. H at ¶ 10). Accordingly, the hearing record does not include evidence sufficient to disturb the IHO's finding that the SETSS provided by AIM constituted appropriate unilaterally-obtained services under the Burlington-Carter standard.
3. Speech-Language Therapy Services from Encore
On January 10, 2024, the student's father executed a contract with Encore that indicated the agency would "make every effort to implement the recommended services with suitable qualified providers for the 2023-24 school year" (see Nov. 26, 2024 Tr. pp. 103; Parent Ex. M). The contract stated, in pertinent part, that Encore intended to provide speech-language therapy at an unspecified hourly rate (Parent Ex. M at p. 2). Encore's school services accounting manager testified that Encore provided speech-language therapy sessions to the student at a cost of $250 per hour (Nov. 26, 2024 Tr. pp. 107, 109; Parent Exs. B at p. 9; O at ¶2a). Encore's director of school services testified that Encore provided the student with two individual 30-minute sessions of speech-language therapy per week at a location outside of the classroom but in the student's school during the 2023-24 school year from November 1, 2023 until June 30, 2024 (Nov. 26, 2024 Tr. p. 107; Parent Ex. P at ¶¶3, 7, 12).
The Encore director of school services identified by name the provider of the speech-language therapy services and indicated that the individual was State licensed as a speech-language pathologist (Parent Ex. P at ¶8).[10] She reported that in addition to providing speech-language therapy to the student, the provider prepared for sessions, created goals, wrote progress reports, and met with parents and teachers (Parent Ex. P at ¶ 9). The director of school services' testimony by affidavit indicated the student's progress was measured through quarterly assessments, consistent meetings with the provider and support staff, observation of the student in the classroom, and daily session notes (id. at ¶12).
Review of a speech-language progress report dated June 24, 2024, completed when the student was in the fourth grade, revealed the student lacked and required intervention in language, social-emotional, conversational, and speech skills (Parent Ex. I at p. 1). According to the progress report, the student received individual bilingual Yiddish speech-language therapy for one hour per week in a pull-out setting, over a ten month period (id.). The report noted that due to the student's delays she required focused instruction for skill-based learning (id.). The progress report stated that the student's deficits precluded the acquisition of grade-level skills in a mainstream environment (id.).
The June 2024 speech-language therapy progress report indicated that to achieve the desired outcomes, a variety of research-based methodologies, techniques, and strategies were used during instruction and were individualized and based on the student's needs and response to intervention (Parent Ex. I at p. 1). According to the progress report, the student's goals were developed using a variety of research-based curricula including the Common Core Curriculum (id.). Evidence-based social and emotional learning (SEL) was an integral part of the student's education thus enhancing progress in academic areas (id.). Social-emotional goals were aligned with the Collaborative for Academic, Social, and Emotional Learning (CASEL) core SEL competencies (id.). The progress report indicated the student's relative proficiencies, likes, and interests were used to increase engagement and promote success (id.). These included reading books, crafts, and listening to stories (id.). The progress report noted that although the student was responding well to the individualized support and guidance, her skill level indicated a need for continued intervention to help her reach grade level competence in social and educational domains (id.).
With regard to the student's level of competence in language, the speech-language therapy progress report indicated her conversation skills were compromised (Parent Ex. I at p. 1). The progress report indicated the student could converse with her peers as necessary; however, she struggled to be clear and precise when making a request and her conversational skills lacked in clarity and topic maintenance (id.). The progress report stated that during the third quarter, the student worked on the receptive language skill of following three-step directions (id.). She could do so with partial prompting/reinforcement (id.). Expressively, the student had a goal to ask "WH" questions for up to 25 different questions (id. at p. 2). The progress report indicated the student was able to ask and answer "WH" questions after reading or listening to a story and during an activity with partial prompting/reinforcement (id.). With regard to the social-emotional development and conversational skills, the student provided related responses in conversations with partial prompting/reinforcement (id.).
Specific to the student's speech skills, the June 2024 speech-language progress report indicated the student's articulation skills were compromised (Parent Ex. I at p. 2). She could state her wants and needs but she struggled to be easily understood by an unfamiliar listener (id.). The speech-language progress report indicated that with regard to articulation, the student produced target sounds in sentences, during a structured reading task, and in conversational speech in the therapy sessions, all with partial prompting/reinforcement (id.). With regard to the student's ability to increase speech intelligibility by facilitating the correct production of misarticulated phonemes in isolation, syllables, words, phrases, sentences and spontaneous speech, the student increased her ability to produce clusters with partial prompting/reinforcement (id. at pp. 2-3).
The speech-language progress report indicated the student's progress reflected that she responded well to the support being provided (Parent Ex. I at p. 3). However, she continued to have difficulties in various areas which strongly hindered her ability to succeed academically and socially (id.).
Based on the foregoing, the speech-language therapy services provided by Encore addressed her unique educational needs in the areas of speech and language with specially designed instruction. Accordingly, there is no basis in the hearing record to disturb the IHO's finding that the parent met her burden of demonstrating that the unilaterally-obtained services provided by Encore were appropriate for the student under the Burlington-Carter framework.
B. 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"]).
As a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the IHO regarding the conduct of the impartial hearing (see Application of a Student with a Disability, Appeal No. 14-090; Application of a Student with a Disability, Appeal No. 09-073; Application of a Child with a Disability, Appeal No. 05-026; Application of a Child with a Disability, Appeal No. 04-103; Application of a Child with a Disability, Appeal No. 04-061). Unless specifically prohibited by regulation, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]). An IHO must provide all parties with an opportunity to present evidence and testimony, including the opportunity to confront and cross-examine witnesses (34 CFR 300.512[a][2]; 8 NYCRR 200.5[j][3][xii]).
1. Parent's Conduct at Hearing
The district argues that the parent's conduct at the impartial hearing should have weighed against her as an equitable factor. The hearing record reflects that the IHO warned the parent multiple times of the consequences of not answering the district's questions. Specifically, a short time into the district's cross-examination, the parent expressed her intention to not answer any more of the district's questions and the IHO informed her that her attorney could raise objections and that if she did not answer the district's questions the IHO would not consider her affidavit of testimony (Nov. 25, 2024 Tr. pp. 22-23). Shortly thereafter, the IHO reiterated her warning to the parent, stating "the consequences of refusing to answer questions would be that [the parent's] testimony is excluded" (Nov. 25, 2024 Tr. p. 25). Finally, after the parent informed the IHO that she considered the hearing "done," the IHO warned the parent one final time that her testimony would be excluded (Nov. 25, 2024 Tr. pp. 53-54). In spite of the IHO's warnings, the parent left the impartial hearing and the IHO stated the following:
So I sufficiently warned the parent that if they refused to answer questions, then their affidavit of testimony will be excluded. The parent has now refused to answer further questions and therefore, I am going to stick to my instruction and the parent's testimonial affidavit will be excluded.
(Nov. 25, 2024 Tr. p. 54).
The IHO retains broad discretion in the efficient conduct of the hearing and is permitted to set reasonable directives for the conduct of the impartial hearing. In this instance, the IHO provided clear directions regarding the consequences of the parent's lack of cooperation with the district's cross-examination, which pursuant to the IHO's discretion, she determined would be excluding the parent's testimony. I find that the IHO appreciated the issues presented by the parent's conduct and exercised her reasonable discretion to address those issues. Accordingly, there is no basis to disturb the IHO's finding that such conduct was dealt with appropriately at the impartial hearing and would not otherwise weigh against the parent as an equitable factor in awarding relief.
2. Financial Obligation
Additionally, the district argues that equitable considerations cannot favor the parent as the parent has not demonstrated that she incurred an actual obligation to pay for services.
In Burlington, the Court stated that "[p]arents who unilaterally withdraw their child from the public school and thereafter seek tuition reimbursement for the[ir] child's private placement do so at their own peril," because they bear the financial risk, both as to tuition and legal expense, and the burden of demonstrating the appropriateness of their relief (471 U.S. at 373-74). Congress thereafter took action to emphasize the need for parents to be invested in the process of developing a public school placement for eligible students with disabilities by placing limitations on private school reimbursements under the IDEA (20 U.S.C. § 1412[a][10][iii]). The statute "textually presupposes that the parents had incurred those costs" (Moonsammy v. Banks, 2024 WL 4277521, at *7 [S.D.N.Y. Sept. 23, 2024]). This statutory construct is a significant deterrent to false or speculative claims (see Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 543 [2007] [Scalia, J., dissenting] [noting that "actions seeking reimbursement are less likely to be frivolous, since not many parents will be willing to lay out the money for private education without some solid reason to believe the FAPE was inadequate"]).
When the element of financial risk is removed and the financial risk is borne entirely by unregulated private schools or agencies that have indirectly entered the fray in a very palpable way in anticipation of obtaining direct funding from the district, it has practical effects because parents begin seeking the best private placements possible with little consideration given to what the child needs for an appropriate placement as opposed to "everything that might be thought desirable by 'loving parents.'" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]). As the First Circuit Court of Appeals noted, "[t]his financial risk is a sufficient deterrent to a hasty or ill-considered transfer" to private schooling without the consent of the school district (Town of Burlington v. Dep't of Educ. for Com. of Mass., 736 F.2d 773, 798 [1st Cir. 1984], aff'd, Burlington, 471 U.S. 359, 374 [noting the parents' risk when seeking reimbursement]; see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247[2009] [citing criteria for tuition reimbursement, as well as the requirement of parents' financial risk, as factors that keep "the incidence of private-school placement at public expense . . . quite small"]). Further, proof of an actual financial risk being taken by parents tends to support a view that the costs of the contracted for program are reasonable, at least absent contrary evidence in the hearing record.
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]).
Here, a document on AIM's letterhead indicates an agreement between the parent and AIM for the provision of SETSS for the 2023-24 school year at a rate of $218 per hour, and that the parent would be obligated to pay for the services in the event that the district would not fund them (Parent Ex. D at ¶¶ c, e). This document contains what appears to be an electronic signature from the parent as well as a representative from AIM (id. at p. 3). Based on this, there is evidence in the impartial hearing record to support the IHO's finding that the parent did indeed incur a financial obligation to AIM for SETSS.
Similarly with AIM, the impartial hearing record contains a document on Encore's letterhead indicating an agreement between Encore and the student's father to provide speech-language therapy services for the 2023-24 school year at an unspecified hourly rate (Parent Ex. M at ¶e). Taken in conjunction with an affidavit of services provided completed by a representative of Encore, it is apparent that the agreed-upon rate for speech-language therapy services for the 2023-24 school year is $250 per hour (id.). Therefore, the IHO did not err in finding that the parent had demonstrated an actual obligation to pay for Encore's services.
Based on the foregoing, the evidence in the hearing record supports the IHO's finding that the parent was financially obligated to fund the costs of the SETSS delivered by AIM and speech-language therapy delivered by Encore for the 2023-24 school year.
VII. Conclusion
As set forth above, the evidence supported the IHO's determination that the parent sustained her burden to establish that the special education services provided by AIM and Encore both constituted specially designed instruction sufficient to address the student's identified needs and that the parent had a financial obligation to pay for those services. Additionally, there are insufficient grounds to disturb the IHO's finding that equitable considerations favored the parent, and the IHO's use of her discretion was reasonable to address any issues raised by the parent's conduct at the impartial hearing.
Based on the foregoing determination, the parties' remaining contentions need not be considered.
THE APPEAL IS DISMISSED.
Footnotes
[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[2] 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.
[3] The agreement does not specify a start or end date for the provision of services (see Parent Ex. D).
[4] The Encore contract does not specify the cost per hour of speech-language therapy (Parent Ex. M at p. 3).
[5] Transcripts dated August 22, 2024, September 26, 2024, and October 15, 2024 are all consecutively numbered. Page numbering restarts at the transcript dated November 25, 2024, and is then consecutively numbered through the transcript dated November 26, 2024. For clarity, the November 25 and 26, 2024 transcripts will be cited to by the date of the appearance, followed by the page number listed on the transcript page.
[6] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[7] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[8] 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 AIM and Encore (Educ. Law § 4404[1][c])
[9] The hearing record included documentary evidence showing the SETSS provider held a professional certificate for students with disabilities from birth to grade two (Parent Ex. E at p. 1). The special education progress note dated June 20, 2024, indicated that during the 2023-24 school year the student was in fourth grade (Parent Ex. F at pp. 1,5). It is well-settled that a parent need not engage the services of a certified special education teacher—or, as here, a SETSS provider—in order to qualify for reimbursement or direct funding of those services (Carter, 510 U.S. 7, 14 [noting that unilateral placements need not meet state standards such as state certification for teachers]), rather a provider must be properly qualified.
[10] The hearing record included a State issued public school teacher certificate that indicated the speech-language therapy provider was a certified teacher in the area of speech and language disabilities (Parent Ex. J).