STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-095
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Liz Vladeck, General Counsel, attorneys for respondent, by Ezra Zonana, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's private services delivered by Kinship Resources (Kinship) for the 2024-25 school year. The district cross-appeals the IHO's award of compensatory education. The appeal must be sustained in part. The cross-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 student attended a general education preschool during the 2022-23 school year where he received special education itinerant teacher (SEIT) services and occupational therapy (OT) (Dist. Ex. 3 at p. 1). During the 2023-24 school year, the student attended a nonpublic school and received five hours per week of special education teacher support services (SETSS) (see Dist. Ex. 5).[1] The student's 2023-24 school year was the subject of a prior impartial hearing (SRO Ex. A).[2]
A CSE convened on March 1, 2024, determined that the student was eligible to receive special education as a student with a learning disability, and recommended that the student receive five periods per week of group SETSS, delivered in Yiddish, and two 30-minute sessions per week of group OT (Dist. Ex. 2 at pp. 1, 9).[3] On May 28, 2024, the parent emailed the district a signed form dated May 23, 2024, which notified the district that the student was parentally placed in a nonpublic school and that the parent requested the district provide the student with special education services (see Parent Ex. C).
In a due process complaint notice dated July 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (see Parent Ex. A). The parent asserted that the district failed to adequately evaluate and assess the student and develop an appropriate program of services prior to the start of the 2024-25 school year (id. at p. 1). The parent further alleged that the district failed to implement the program it developed and recommended for the student's 2024-25 school year (id.). The parent requested an order of pendency to compel the district to provide the student with services during the pendency of the proceedings (id. at p. 2). As relief, the parent requested the district be required to reevaluate the student and provide the student with the services mandated in the March 2024 IESP (id.). The parent also sought an order directing the district to provide banks of compensatory education for any special education and related services mandated in the student's IESP during his 2024-25 school year (id.). The parent requested that the IHO direct the district to fund such services at "private provider rates charged by providers identified and/or contracted for by the parent" (id.).
B. Events Post-Dating the Due Process Complaint Notice
By letter dated September 9, 2024, the parent provided the district with notice that the district had not taken any action to implement the student's SETSS and related services for the 2024-25 school year and that, if the district failed to provide the student with his recommended services, the parent would "continue" to seek "direct payment and/or reimbursement" for unilaterally obtained private services (see Parent Ex. D). On September 12, 2024, the parent signed a contract with Kinship for the provision of special education services to the student for the 2024-25 school year at an enhanced rate (see Parent Ex. F).
C. Impartial Hearing Officer Decision
An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on November 12, 2024 (Tr. pp. 1-27).[4] Both parties offered exhibits, most of which the IHO received into evidence and the parent presented affidavit testimony of the administrator at Kindship in lieu of in-person direct testimony (see Tr. pp. 5-13; Parent Exs. A; D-G; Dist. Exs. 1-6; 8).[5]
In a decision dated December 27, 2024, the IHO found that the district failed to provide the student with a FAPE and/or services on an equitable basis for the 2024-25 school year (IHO Decision at p. 7).
The IHO held that the parent did not meet her burden to prove the appropriateness of the SETSS provided to the student by Kinship during the 2024-25 school year under the Burlington-Carter analysis (IHO Decision at pp. 8-9). However, the IHO ordered the district to provide the student with SETSS pursuant to the March 2024 IESP within 14 days of the date of the IHO's decision (id. at pp. 9, 10). For services for which neither the district nor the parent had arranged, the IHO found an award of compensatory education warranted (id. at p. 9). In particular, the IHO ordered the district to directly fund a bank of compensatory OT amounting to the sum of two 30-minute sessions per week of OT for the 2024-25 school year, with a maximum of 36 hours, less any OT provided or funded by the district pursuant to pendency, to be delivered by State-certified providers of the parent's choosing at market rate (id. at pp. 10-11). The IHO indicated that the bank of compensatory OT would expire 30 months from the date of the IHO's order (id.).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in finding that she failed to meet her burden of proving that SETSS provided by Kinship were appropriate to meet the student's unique educational needs. The parent argues that she met her burden of proof under the totality of the circumstances, noting that she arranged for the provider to deliver the services set forth in the IESP, that the provider was certified, and that, given the timing of the impartial hearing, the provider had not yet completed a progress report. The parent further asserts that the IHO failed to issue an order on pendency. The parent also notes that, as of the date of the parent's appeal, the district had not appointed a SETSS provider for the student, despite the IHO's order to do so within 14 days of the date of the order.
In an answer with cross-appeal, the district asserts that the IHO's decision that the parent failed to establish that the unilaterally obtained SETSS were appropriate should be sustained. The district also argues that the parent is not entitled to a pendency award because the parent waived pendency by not bringing it up during the impartial hearing. The district also asserts that an unappealed July 2024 IHO decision "appears to be the last pendency-setting event," not the March 2024 IESP; the district submits additional evidence in support of its argument that the parent waived pendency.[6] Finally, the district asserts that, in unilaterally obtaining private services, the parent "sourced out the [s]tudent's pendency program" and should not be permitted to seek the same relief "through three different mechanisms." With respect to the parent's argument that the district had not abided by the IHO's order that it implement the SETSS mandated in the May 2024 IESP, the district asserts that SROs do not have enforcement authority and, in any event, that the parent does not seek relief relating to the district's failure to comply with the IHO's order. As for its cross-appeal, the district argues that the IHO's award of compensatory education for missed OT services should be overturned because there was not a sufficient evidentiary basis for the award. The district further argues that the parent contracted with Kinship for the provision of both SETSS and OT services, but there was no explanation as to why Kinship failed to provide the student with OT services.
In a reply and answer to the cross-appeal, the parent reiterates her allegations as set forth in the request for review and asserts that it is the district's burden to prove that compensatory education should not be awarded and that the district failed to meet its burden.
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]).[7] "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.).[8] 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. Pendency
The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[9] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]). A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]). The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).
Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]). Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]). Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).
Initially, with respect to the district's argument that the parent waived pendency, review of the hearing record shows that the issue of pendency was raised by the parent in the due process complaint notice (Parent Ex. A at p. 2). It is well-settled that a student's entitlement to pendency arises automatically, begins on the date of the filing of the due process complaint notice, and continues until the conclusion of the matter (20 U.S.C. § 1415[j]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; Zvi D., 694 F.2d 904, 906). Indeed, the student's right to pendency arises as of the filing of the due process complaint notice even if a request for pendency is not included in the due process complaint notice or made "at any particular point in the proceedings" (Arlington Cent. Sch. Dist. v. L.P., 421 F. Supp. 2d 692, 701 [S.D.N.Y. 2006]; see E. Lyme, 790 F.3d at 455; M.R. v. Ridley Sch. Dist., 744 F.3d 112, 123-25 [3d Cir. 2014]; Murphy v. Arlington Central School District Board of Education, 297 F.3d 195, 199-200 [2d Cir. 2002]). Instead, it is the district's responsibility upon the filing of the due process complaint notice to implement the "then current educational placement" in accordance with 20 U.S.C. § 1415(j), and the parties should thereafter notify the IHO if there is a dispute over which services constitute that educational placement so that the IHO can ensure that arrangements are made for the submission of any necessary evidence on the issue and the matter is decided.[10] To be sure, there is no further discussion of pendency on the record, but in light of the parent's request for pendency in the due process complaint notice, I find the issue was sufficiently before the IHO. Further, contrary to the district's contention, there is nothing in the IHO's standing order that could be interpreted to result in the parent's waiver of the student's statutory right to pendency (see IHO Ex. I).
Therefore, the next issue to be determined is what constitutes the student's pendency placement. The parent points to the March 2024 IESP, which provided for five periods per week of group SETSS, delivered in Yiddish, and two 30-minute sessions per week of group OT (Dist. Ex. 2 at p. 9). However, the March 2024 IESP was not implemented and the parent unilaterally obtained services from Kinship without the consent of the school district. The Second Circuit has explained that a parent may not unilaterally move a student to a preferred nonpublic school and still receive pendency funding, since it is the district that is authorized to decide how (and where) a student's pendency services are to be provided as per the text and structure of the IDEA and given that the district is the party responsible for funding the pendency services (Ventura de Paulino, 959 F.3d at 532-35). The Court observed that:
If a parent disagrees with a school district's decision on how to provide a child's educational program, the parent has at least three options under the IDEA: (1) The parent can argue that the school district's decision unilaterally modifies the student's pendency placement and the parent could invoke the stay-put provision to prevent the school district from doing so; (2) The parent can determine that the agreed-upon educational program would be better provided somewhere else and thus seek to persuade the school district to pay for the program's new services on a pendency basis; or (3) The parent can determine that the program would be better provided somewhere else, enroll the child in a new school, and then seek retroactive reimbursement from the school district after the IEP dispute is resolved
(id. at 534). Here, the parent elected the equivalent of the third option when she unilaterally obtained private services for the student at her own financial risk.
That, however, is not the end of analysis, as the district asserts that a July 2024 unappealed IHO decision arising from a dispute regarding the 2023-24 school year constitutes pendency. A student's "then-current educational" placement or pendency placement can be changed: (1) by agreement between the parties; (2) by an unappealed IHO or court decision in favor of the parents; or (3) by an SRO decision that a unilateral parental placement is appropriate (34 CFR 300.518[a], [d]; 8 NYCRR 200.5[m][1], [2]; see Ventura de Paulino, 959 F.3d at 532; Bd. of Educ. of Pawling Cent. Sch. Dist., 290 F.3d at 483-84; New York City Dep't of Educ. v. S.S., 2010 WL 983719, at *1 [S.D.N.Y. Mar. 17, 2010]; Student X, 2008 WL 4890440, at *23; Arlington Cent. Sch. Dist., 421 F. Supp. 2d at 697; Murphy, 86 F. Supp. 2d at 366; Letter to Hampden, 49 IDELR 197 [OSEP 2007]).
In the July 2024 IHO decision, the district was ordered to fund five periods per week of SETSS by "Service Provider Agency at a rate of up to $175 per hour" and two 30-minute sessions per week of OT "by a provider of [the p]arent's choosing at the provider's customary and regular rate" (SRO Ex. 1 at p. 9). The July 2024 IHO decision post-dates the March 2024 IESP and, moreover, calls for the district funding of the services by private providers (compare SRO Ex. 1, with Dist. Ex. 2). While the July 2024 IHO decision does not name the private provider or agency at issue in that matter, it appears from the hearing record that the private provider who delivered the student's services during the 2023-24 school year, was the same provider from Kinship who delivered the student's services during the 2024-25 school year (compare Dist. Ex. 5 at p. 4, with Parent Exs. E; G ¶ E).
Given the district's position, I find that the July 2024 unappealed IHO decision sets forth the student's pendency placement. Therefore, I order that the district fund the student's services delivered by Kinship consistent with the July 12, 2024 IHO decision, from the date of the due process complaint notice in this matter, July 15, 2024, until the conclusion of the current proceedings.
As to the district's obligation to fund OT services, the Second Circuit has held that where a district fails to implement a student's pendency placement, students should receive the pendency services to which they were entitled as a compensatory remedy (E. Lyme, 790 F.3d at 456 [directing full reimbursement for unimplemented pendency services awarded because less than complete reimbursement for missed pendency services "would undermine the stay-put provision by giving the agency an incentive to ignore the stay-put obligation"]; see Student X, 2008 WL 4890440, at *25, *26 [ordering services that the district failed to implement under pendency awarded as compensatory education services where district "disregarded the 'automatic injunction' and 'absolute rule in favor of the status quo' mandated by the [IDEA] and wrongfully terminated [the student's] at-home services"] [internal citations omitted]).
Therefore, the student is entitled to compensatory OT services from the date of the due process complaint notice until the conclusion of the current proceedings. As the 2024-25 school year is at its end, and the period of time that the district is required to fund compensatory OT services under pendency includes the entire 2024-25 school year save a few days at most, I decline to review the merits of the district's appeal of the IHO's award of compensatory OT, as it mirrors the compensatory OT to which the student is entitled as relief for the district's failure to implement the student's pendency.
B. Unilaterally Obtained Services from Kinship
Turning to the substance of the parties' dispute, the district does not cross-appeal from the IHO's finding that it denied the student a FAPE and/or equitable services for the 2024-25 school year (IHO Decision at p. 7). Accordingly, the IHO's finding on this issue has become final and binding on the parties and will not be reviewed on appeal (see 34 CFR 300.514[a]; 8 NYCRR200.5[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 addition, to the extent the student is entitled to district funding of services provided by Kinship under pendency for the entirety of the 2024-25 school year, as discussed above, the issue of the appropriateness of the services provided by Kinship is essentially moot. Nevertheless, I will briefly review the parties' dispute.
The crux of the dispute between the parties relates to the appropriateness of the SETSS provided to the student at the student's general education nonpublic school during the 2024-25 school year. Prior to reaching the substance of the parties' arguments, some consideration must be given to the appropriate legal standard to be applied. In this matter, the student has been placed in a general education setting in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the nonpublic school placement. Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2024-25 school year and, as a self-help remedy, she unilaterally obtained private services from Kinship 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 IEP dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino, 959 F.3d at 526 [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 the privately-obtained services must be assessed under this framework. 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]). 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 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).
The March 2024 IESP reflected the student's classification as a student with a learning disability and indicated that the student had age appropriate expressive and receptive language skills, but exhibited delays in academic, social/emotional, and fine motor skills (Dist. Ex. 2 at pp. 1-4).
The hearing record is very sparse regarding the SETSS provided by Kinship to meet the student's needs. As the IHO noted, the parent did not provide evidence describing the SETSS or how they were delivered to the student and focused only on the rate for services (IHO Decision at p. 8). In her direct testimony by affidavit, the administrator from Kinship testified that Kinship began providing the student's SETSS on or about September 16, 2024 and that "per his IESP," the student was entitled to five hours of SETSS per week during the 2024-25 school year (Parent Ex. G ¶¶ C, D). The administrator testified that the special education teacher providing the student's SETSS was a certified special education teacher and a native Yiddish speaker who had passed the bilingual equivalency assessment for Yiddish (id. ¶ E).[11] However, the administrator did not testify regarding the substance of the SETSS provided, such as the areas addressed during SETSS sessions, the specially designed instruction used to meet the student's needs, or the student's progress (see Parent Ex. G). Nor does the hearing record provide other evidence to support that the unilaterally-obtained SETSS delivered by Kinship provided educational instruction specially designed to meet the unique needs of the student, such as testimony from the student's SETSS provider, progress reports, session notes, or testimony from the parent. Additionally, the hearing record lacks information regarding the student's instruction at the general education nonpublic school, and without such, it is not possible to ascertain whether the student received special education support in the classroom to enable him to access the general education curriculum or to determine how the SETSS delivered to him supported his functioning in the classroom.
Moreover, although the parent's agreement with Kinship contemplated that the agency would "endeavor to provide special education teacher services and/or related services and supports included in the last-agreed upon IEP or IESP" but that "[s]ervices [could] fluctuate due to child availability, provider availability, or school schedules," there is no evidence in the hearing record regarding the agency's or the parent's attempts to arrange for OT services to meet the student's fine motor needs. Although parents need not show that a unilateral placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65), the program as a whole must still be "reasonably calculated to enable the child to receive educational benefits" (Carter, 510 U.S. at 11, 13-14, quoting Rowley, 458 U.S. at 203-04) when considered under the totality of the circumstances.
Here, given the dearth of evidence concerning the student's SETSS, how the SETSS the student receives supports him in his general education classroom, and whether or how much SETSS the student receives during the 2024-25 school year, the totality of the circumstances does not support a reimbursement or funding award for the unilaterally obtained SETSS. Accordingly, the evidence in the hearing record does not support disturbing the IHO's finding that the parent failed to meet her evidentiary burden that SETSS provided by Kinship to the student for the 2024-25 school year were appropriate to meet the student's unique needs.
VII. Conclusion
Having determined that the evidence in the hearing record supports the IHO's determination that the parent failed to demonstrate the appropriateness of the unilaterally-obtained SETSS during the 2024-25 school year, the necessary inquiry is at an end and there is no need to reach the issue of whether equitable considerations weigh in favor of the parent's request for relief. However, as explained above, pursuant to pendency, the student is entitled to district funding of SETSS from Kinship and compensatory OT pursuant to the unappealed IHO decision dated July 12, 2024, from July 15, 2024, the date of the due process complaint notice, until the conclusion of these proceedings.
I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations herein.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that for purposes of pendency the district shall directly fund up to five hours per week of SETSS delivered to the student from July 15, 2024 until the conclusion of these proceedings.
Footnotes
[1] 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.
[2] On July 12, 2024, the IHO in the prior matter issued a decision regarding the student's 2023-24 school year (SRO Ex. 1). Attached to it answer and cross-appeal, district submits a copy of the July 2024 decision (SRO. Ex. 1). Generally, evidence not presented at an impartial hearing may be considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; Landsman v. Banks, 2024 WL 3605970, at *3 [S.D.N.Y. July 31, 2024] [finding a plaintiff's "inexplicable failure to submit this evidence during the IHO hearing barred her from taking another bite at the apple"]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]). The factor specific to whether the additional evidence was available or could have been offered at the time of the impartial hearing serves to encourage full development of an adequate hearing record at the first tier to enable the IHO to make a correct and well-supported determination and to prevent the party submitting the additional evidence from withholding relevant evidence during the impartial hearing, thereby shielding the additional evidence from cross-examination and later springing it on the opposing party, effectively distorting the State-level administrative review and transforming it into a trial de novo (see M.B. v. New York City Dep't of Educ., 2015 WL 6472824, at *2-*3 [S.D.N.Y. Oct. 27, 2015]; A.W. v. Bd. of Educ. of the Wallkill Cent. Sch. Dist., 2015 WL 1579186, at *2-*4 [N.D.N.Y. Apr. 9, 2015]). That factor is of less weight in this instance, where both parties were aware of the July 2024 IHO decision. Furthermore, as noted herein, both federal and State regulations authorize SROs to seek additional evidence if necessary, and SROs have accepted evidence available at the time of the impartial hearing when necessary (34 CFR 300.514[b][2][iii]; 8 NYCRR 279.10[b]; Application of a Student with a Disability, Appeal No. 08-030; Application of a Child with a Disability, Appeal No. 00-019 [finding it necessary to accept evidence available at the time of the impartial hearing to determine the student's pendency placement]). Accordingly, although the July 2024 decision could have been offered at the time of the impartial hearing, I find it necessary to identify the student's pendency placement and will consider it for that purpose.
[3] The student's eligibility for special education as a student with a learning disability is not in dispute (see 34 CFR 300.8[c][10]; 8 NYCRR 200.1[zz][6]).
[4] According to the IHO, this matter was the first to be heard in an omnibus set of five cases (Tr. p. 3). The IHO summarized a conversation had with the parties' representatives off the record that applied to "all five cases," including that the parties' differed as to whether the Burlington/Carter or the compensatory education standard should apply to evaluate the parents' requested relief; that the parents were only disputing implementation, not "the programs" developed by the district; and that the district would not be defending its offer of a FAPE to the students as "implementation has not occurred" (Tr. pp. 3-4).
[5] During the November 12, 2024 impartial hearing, the IHO held that the district "waived its right to cross examine the parent's witnesses" by failing to comply with "the IHO's omnibus standing order" (Tr. pp. 4-5, 13-16; IHO Ex. I at p. 1).
[6] The district argues that, if the parent was concerned about pendency being overlooked, the parent should have complied with the IHO's July 29, 2024 standing order and advised the IHO and the district of the outstanding pendency request within 10 calendar days of the impartial hearing (see IHO Ex. I).
[7] 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]).
[8] 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.
[9] In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (959 F.3d at 532-36).
[10] On the other hand, if there is no dispute, no order is required, and the district is obligated to implement the stay put placement without the need for input from the IHO (see Letter to Goldstein, 60 IDELR 200 [OSEP 2012] [indicating that a district may not wait for a formal order from a hearing officer before implementing a student's stay-put placement where the stay put placement is uncontested]; Application of a Student with a Disability, Appeal No. 18-058).
[11] The hearing record contains a copy of the New York State Education Department certification lookup webpage that reflects that the SETSS provider held a Childhood Education (Grades 1-6) Initial Certificate and a Students with Disabilities (All Grades) Initial Certificate (see Parent Ex. E).