STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-104
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 Lindsay R. VanFleet, 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 cost of her son's private services delivered by Succeed Support Services, LLC (Succeed) for the 2023-24 school year. The district cross-appeals from that portion of the IHO's decision which denied its motion to dismiss for lack of subject matter jurisdiction. The appeal must be dismissed. 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 parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case will not be recited in detail. Moreover, the evidence in the hearing record concerning the student's educational history is sparse.
Briefly, a CSE convened on January 14, 2021, and developed an IESP with a projected implementation date of January 29, 2021 (Parent Ex. B at p. 1). Finding the student eligible for special education as a student with a learning disability, the January 2021 CSE recommended that the student receive six periods per week of direct, group special education teacher support services (SETSS) in Yiddish, and one 30-minute session per week of individual counseling in Yiddish (id. at p. 13).[1] The January 2021 IESP indicated that the student was parentally placed at a nonpublic school (id. at p. 1).
On November 7, 2022, a CSE convened, determined that the student remained eligible for special education as a student with a learning disability, and developed an IESP with a projected implementation date of November 22, 2022 (Dist. Ex. 7 at p. 1). The November 2022 CSE again recommended that the student receive six periods per week of direct, group SETSS, delivered in Yiddish, and one 30-minute session per week of individual counseling, delivered in Yiddish (id. at p. 5).
On May 22, 2023, the parent signed a district form requesting that the district provide special education services to the student for the 2023-24 school year (see Parent Ex. E). An undated contract was electronically signed by the parent for the 2023-24 school year indicating that Succeed intended to provide services to the student from September 2023 through June 2024 per the last agreed upon IESP, and although parents were "financially responsible for services provided," Succeed allowed parents "time to seek funding through the impartial hearing process, before being billed by Succeed" (see Parent Ex. C).[2]
On September 1, 2023, the student began receiving home-based individual SETSS from a provider from Succeed (Parent Ex. G at p. 1).
By letter dated September 27, 2023, the parent, through a lay advocate, notified the district that it had "failed to assign a provider for the services mandated for the [student] during the 2023-2024 school year" (Parent Ex. D). The September 2023 letter indicated that, "[i]f the [district] fail[ed] to assign a provider, the parent w[ould] be compelled to unilaterally obtain the mandated services through a private agency at an enhanced market rate" (id.).
On October 12, 2023, the district conducted a psychoeducational evaluation of the student as part of a triennial evaluation, and a Level I vocational interview with the student, both of which were completed on October 18, 2023 (Dist. Exs. 4 at pp. 1-6; 5).
On November 22, 2023, a CSE convened to review the October 2023 psychoeducational evaluation report and the October 2023 Level I vocational interview (Dist. Ex. 3 at p. 1; see Dist. Ex. 2 at pp. 1-2). The November 2023 CSE determined that the student no longer met the criteria for eligibility as a student with a disability and, therefore, declassified the student without a recommendation for declassification support services (Dist. Ex. 2 at p. 1). The projected date of the student's declassification was December 8, 2023 (id.).
The district informed the parent of the declassification recommendation in a prior written notice, dated November 22, 2023 (see Dist. Ex. 3 at pp. 1-2). According to the prior written notice, the CSE considered recommending SETSS but rejected that option because the parent reported that the student was "not receiving secular instruction" at the nonpublic school he was attending for the 2023-24 school year (id. at p. 1).
During the 2023-24 school year, the student continued receiving SETSS from Succeed through June 28, 2024 (see Parent Ex. G at pp. 1-7).
A. Due Process Complaint Notice
In a due process complaint notice dated May 16, 2024, the parent, through her lay advocate, alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A at pp. 2-3). According to the parent, the "latest program of services developed for [the student] d[id] not meet [his] individualized needs" or "provide sufficient supports and services to allow the [s]tudent to make effective progress towards age-appropriate goals and objectives" (id. at p. 1). The parent further alleged that the district "ha[d] not provided qualified providers" or "taken any steps to provide any services for the 2023-2024 school year" and that the parent had been unable to obtain qualified providers at the district's rate (id. at p. 2). The parent requested pendency in the January 2021 IESP (id. at pp. 2-3, 5). As relief, the parent requested funding of the cost of SETSS "[six] times per week" and one 30-minute sessions per week of individual counseling services for the 2023-24 school year at the providers' enhanced rates, as well as a bank of compensatory services, also funded at the providers' enhanced rates, "to make-up for any mandated services not provided by the [district]" (id. at p. 3).
B. Impartial Hearing Officer Decision
On September 18, 2024, an impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) and concluded on the same day (see Tr. pp. 1-54). The parent offered various exhibits, most of which the IHO admitted into evidence (see Tr. pp. 11-13; Parent Exs. A-G; I-J).[3] The parent's exhibits included an affidavit from the educational supervisor of Succeed, who appeared for cross-examination during the hearing (see Tr. pp. 11-13, 41-52; Parent Ex. I). The parent also testified during the hearing (see Tr. pp. 28-52). The district presented no witness testimony but offered various documents, most of which the IHO admitted into evidence (see Tr. pp. 5-10; Dist. Exs. 1-7; 9; 10).[4] During the impartial hearing, the district made an oral motion to dismiss the parent's due process complaint notice for lack of subject matter jurisdiction (Tr. pp. 14-15). The parent's advocate opposed the district's motion, and the IHO ultimately denied the district's motion to dismiss (see Tr. pp. 15-17).
In a decision dated January 9, 2025, the IHO determined that the district acknowledged that it did not implement the student's IESP but also that the district provided a cogent and responsive explanation for its decision to declassify the student and, further, that the November 2023 CSE correctly declassified the student (IHO Decision at p. 4).[5] The IHO examined the district's evidence that the student had been declassified that was offered in support of its defense against the parent's claims (id. at pp. 3-4). The IHO described the results of the October 18, 2023 psychoeducational evaluation report and the October 18, 2023 Level I vocational interview and noted that the November 2023 CSE considered recommending SETSS, but rejected that option because the "[s]tudent [wa]s not receiving secular instruction" for the 2023-24 school year (id.). In her review of the evaluative information considered by the November 2023 CSE, the IHO noted that the student's results on a measure of cognitive functioning yielded a full-scale intelligence quotient (FSIQ) score within the very high range (id. at p. 3). The IHO further noted that on a measure of academic achievement, the student's scores revealed weaknesses in reading and written expression, and that the "[s]tudent c[ould] be considered Yiddish language dominant" (id. at p. 4).
Having determined that the hearing record supported the CSE's determination that the student was not eligible for special education services, the IHO denied the parent's requested relief (IHO Decision at pp. 2, 7). Nevertheless, the IHO made an alternative determination that, assuming the student should not have been declassified, the SETSS provided by Succeed was not appropriate, as the hearing record lacked independent information as to the student's current strengths, weaknesses, needs, and goals (id. at p. 6). According to the IHO, although the student's IESP included a description of his needs, the IESP was outdated, and, although the evidence presented by the parent purported to identify the student's present levels of functioning, needs, and progress, that evidence was not credible (id.). More specifically, the IHO found the witness testimony and progress reports presented by the parent to be self-serving, vague, and evasive, further noting that the progress reports were created by an entity that had a financial interest in the outcome of the proceedings (id.).
Notwithstanding the determination to deny relief altogether, the IHO found the requested rate of funding to be unreasonable (IHO Decision at p. 6 n.1). According to the IHO, the evidence in the hearing record showed that, although the provider was paid $80.00 per hour, Succeed charged $215.00 per hour, "which mean[t] that [the] agency received an additional $135" (id.).
IV. Appeal for State-Level Review
The parent appeals. The district cross-appeals. The parties' familiarity with the issues raised in the parties' respective pleadings is presumed and, therefore, the allegations and arguments will not be recited here in detail. The parties dispute the following issues: whether the IHO erred in determining that the district properly declassified the student; and whether the IHO erred in determining that the parent failed to prove the appropriateness of the unilaterally obtained services. Additionally, the district contends that the IHO lacked subject matter jurisdiction to adjudicate the parent's claims. Finally, while neither party has appealed the IHO's determination that the contracted rate for individual SETSS was unreasonable, the district argues that, if an SRO decides to award funding, the SRO should award a reasonable market rate as determined by the district's implementation unit.[6]
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. Preliminary Matters
1. Subject Matter Jurisdiction
As a threshold matter, it is necessary to address the district's cross-appeal concerning subject matter jurisdiction. The district argues that federal law confers no right to file a due process complaint regarding services recommended in an IESP and New York law confers no right to file a due process complaint regarding IESP implementation. Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.
Initially, the district has treated the parent's claims as related to implementation of the student's IESP. Although the due process complaint notice alleged that the district did not implement the recommended services (Parent Ex. A at p. 2), this is not a case in which the parent's claim was solely related to the implementation of an IESP. Review of the due process complaint notice shows that the parent also challenged the substantive adequacy of the student's most recent IESP (id.). Accordingly, there can be no dispute that the IHO had jurisdiction to address that aspect of the parent's due process complaint notice.
In addition, even if this matter did solely involve implementation of the student's IESP during the 2023-24 school year, such a claim is subject to due process. Recently in several decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-079; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No. 25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of the New York City Dep't of Educ., Appeal No. 25-068; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 25-028; Application of a Student with a Disability, Appeal No. 24-621; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512 Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).
Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]). However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]). Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.
Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.
Separate from the services plan envisioned under the IDEA, the Education Law in New York has afforded parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).[9]
Education Law § 3602-c, concerning students who attend nonpublic schools, provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]). It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).
Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]" (Educ. Law §4404[1][a]; see 20 U.S.C. § 1415[b][6]). SROs have in the past, taking into account the legislative history of Education Law § 3602-c, concluded that the legislature did not intend to eliminate a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (seeApplication of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[10] In addition, the New York Court of Appeals has explained that students authorized to receive services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.
However, the number of due process cases involving the dual enrollment statute statewide, which were minuscule in number until only a handful of years ago, have now increased to tens of thousands of due process proceedings per year within certain regions of this school district in the last several years. Public agencies are attempting to grapple with how to address this colossal change in circumstances, which is a matter of great significance in terms of State policy. Policy makers have recently attempted to address the issue.
In May 2024, the State Education Department proposed amendments to 8 NYCRR 200.5 "to clarify that parents of students who are parentally placed in nonpublic schools do not have the right under Education Law § 3602-c to file a due process complaint regarding the implementation of services recommended on an IESP" (see "Proposed Amendment of Section 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Due Process Hearings," SED Mem. [May 2024], available athttps://www.regents.nysed.gov/sites/regents/files/ 524p12d2revised.pdf). Ultimately, however, the proposed regulation was not adopted. Instead, in July 2024, the Board of Regents adopted, by emergency rulemaking, an amendment of 8 NYCRR 200.5, which provides that a parent may not file a due process complaint notice in a dispute "over whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services" (8 NYCRR 200.5[i][1]). The amendment to the regulation does not apply to the present circumstance for two reasons. First, the amendment to the regulation applies only to due process complaint notices filed on or after July 16, 2024 (id.).[11] Second, since its adoption, the amendment has been enjoined and suspended in an Order to Show Cause signed October 4, 2024 (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24 [Sup. Ct., Albany County, Oct. 4, 2024]). Specifically, the Order provides that:
pending the hearing and determination of Petitioners' application for a preliminary injunction, the Revised Regulation is hereby stayed and suspended, and Respondents, their agents, servants, employees, officers, attorneys, and all other persons in active concert or participation with them, are temporarily enjoined and restrained from taking any steps to (a) implement the Revised Regulation, or (b) enforce it as against any person or entity
(Order to Show Cause, O'Connor, J.S.C., Agudath Israel of America, No. 909589-24).[12]
According to the district, however, the aforesaid rule making activities support its position that parents never had a right under State law to bring a due process complaint regarding implementation of an IESP or to seek relief in the form of enhanced rate services. Consistent with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:
parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services.Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.
("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[13]
Given the implementation date set forth in the text of the amendment to the regulation and the issuance of the temporary restraining order suspending application of the regulatory amendment, the amendments to the regulation may not be deemed to apply to the present matter. Further, the position set forth in the guidance document issued in the wake of the emergency regulation, which is now enjoined and suspended, does not convince me that the Education Law may be read to divest IHOs and SROs of jurisdiction over these types of disputes. Acknowledging that this matter has received new attention from State policymakers and appears to be an evolving situation, I nevertheless must deny the district's request for dismissal of the parent's appeal and underlying claim relating to implementation of the IESP on jurisdictional grounds.
2. Scope of the Impartial Hearing and of Review
Next, the parties dispute whether the IHO erred in determining that the district properly declassified the student. The parent contends that the IHO should have overturned the student's declassification. The district contends that the IHO reached the correct conclusion but also asserts that the parent did not express disagreement with the student's declassification in her due process complaint notice. Before I can reach the merits of the district's decision to declassify the student, I must determine whether the matter was properly before the IHO.
Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing (Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056). Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[i][7][i][a]; [j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]).[14]
Moreover, it is essential that the IHO disclose his or her intention to reach an issue which the parties have not raised as a matter of basic fairness and due process of law (Application of a Child with a Handicapping Condition, Appeal No. 91-40; see John M. v. Bd. of Educ. of Evanston Tp. High Sch. Dist. 202, 502 F.3d 708, 713 [7th Cir. 2007]). Although an IHO has the authority to ask questions of counsel or witnesses for the purposes of clarification or completeness of the hearing record (8 NYCRR 200.5[j][3][vii]), or even inquire as to whether the parties agree that an issue should be addressed, it is impermissible for the IHO to simply expand the scope of the issues raised without the express consent of the parties and then base his or her determination on new issues raised sua sponte (see Dep't of Educ., Hawai'i v. C.B., 2012 WL 220517, at *7-*8 [D. Haw., Jan. 24, 2012] [finding that the administrative hearing officer improperly considered an issue beyond the scope of the parents' due process complaint notice]).
The parent did not challenge the district's decision to declassify the student in her due process complaint notice. In fact, the due process complaint notice contains no mention of the student's declassification (see Parent Ex. A). Instead, the parent challenged the adequacy of "the latest program of services" and alleged that the district failed to implement the recommended services for the 2023-24 school year (id. at pp. 1-2).
When a matter arises that did not appear in a due process complaint notice, the next inquiry is whether the district, through the questioning of its witnesses, "open[ed] the door" to the issue under the holding of M.H. v. New York City Department of Education (685 F.3d at 250-51; see also Bd. of Educ. of Mamaroneck Union Free Sch. Dist. v. A.D., 739 Fed. App'x 79, 80 [2d Cir. Oct. 12, 2018]; B.M., 569 Fed. App'x at 59; J.G. v. Brewster Cent. Sch. Dist., 2018 WL 749010, at *10 [S.D.N.Y. Feb. 7, 2018]; C.M. v. New York City Dep't of Educ., 2017 WL 607579, at *14 [S.D.N.Y. Feb. 14, 2017]; D.B. v. New York City Dep't of Educ., 966 F. Supp. 2d 315, 327-28 [S.D.N.Y. 2013]; N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 584-86 [S.D.N.Y. 2013]; A.M. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 282-84 [S.D.N.Y. 2013]; J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, *9 [S.D.N.Y. Aug. 5, 2013]).
Here, as a defense to the parent's claims, the district presented documentary evidence that, as of December 8, 2023, the student was no longer eligible for special education (Dist. Exs. 2 at p. 1; 3 at p. 1). However, the hearing record does not indicate that the district, through its questioning of witnesses, "opened the door" to the propriety of its decision to declassify the student. Review of the hearing transcript reveals, instead, that the issue first arose in response to questioning from the IHO (see Tr. pp. 17-22). Specifically, the IHO inquired as to the parties' positions regarding declassification; the parent's representative asserted that the "recommendation for declassification was not appropriate"; the IHO asked the district's counsel to "explain . . . why [the] student was declassified"; and the district's counsel then explained the basis for the student's declassification in response to the IHO's question (Tr. pp. 18-20). The hearing transcript shows no indication that the district agreed to expand the scope of the impartial hearing to include the propriety of its decision to declassify the student. To the contrary, the district's counsel argued that the due process complaint notice made no allegations contesting the student's declassification (Tr. pp. 21-22).
Therefore, the propriety of the November 2023 CSE's decision to declassify the student was outside the scope of the impartial hearing, and the IHO erred in reaching that issue (see, e.g., Application of a Student with a Disability, Appeal No. 24-631 [finding that the IHO erred in determining that the district failed to implement equitable services where the due process complaint notice contained no such allegation and the parties had not agreed to expand the scope of the impartial hearing]). In other words, based on the hearing record, the IHO should have determined that the student was ineligible for special education after December 7, 2023 without determining whether the student's declassification was proper (see Dist. Exs. 2 at p. 1; 3 at p. 1).
Although the IHO improperly focused on the November 2023 CSE's determination to declassify the student, she also noted that the district "acknowledged that [it] did not implement the services recommended in [the s]tudent's IESP" and that, due to this failure, the district "failed to provide [the s]tudent with equitable services" (IHO Decision at p. 3). Given the projected effective date of the November 2023 CSE's unchallenged declassification determination, the student was entitled to equitable services for the period of approximately September 1, 2023 through December 7, 2023. As the district has not appealed the portion of the IHO's decision that found the district failed to implement the student's IESP, this finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z., 2013 WL 1314992, at *6-*7, *10).
B. Unilaterally Obtained Services
Finally, the parties dispute whether the IHO erred in determining that the parent failed to prove the appropriateness of the unilaterally obtained SETSS. Given that the student's declassification took effect on December 8, 2023, he was still eligible for special education services when he began receiving SETSS from Succeed on September 1, 2023, and I must address whether the SETSS provided by Succeed from September 1, 2023 through December 7, 2023 was appropriate.
In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement. Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from Succeed for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof. Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).
The parent's request for district funding of privately obtained services must be assessed under this framework. Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[15] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
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 at 364; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1. The Student's Needs
A review of the information available in the hearing record concerning the student's needs and then-current functioning will provide the context needed to assess whether the unilaterally obtained services were appropriate for the student.
In determining that the parent failed to prove the appropriateness of the unilaterally obtained SETSS, the IHO found that the hearing record "lack[ed] independent information as to [the s]tudent's current strengths, weaknesses, goals, and . . . needs" (IHO Decision at p. 6). However, contrary to the IHO's reasoning, "it was the district's obligation to evaluate the student and present its view of his needs at the impartial hearing" (Application of a Student with a Disability, Appeal No. 18-049; see 34 CFR 300.303[b][1]-[2]; 8 NYCRR 200.4[b][4]; A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208, 214 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate, although the private school's assessments and reports were alleged to be incomplete or inaccurate, as the fault for such inaccuracy or incomplete assessment of the student's needs lied with the district]). Moreover, the hearing record includes information about the student's needs from the January 2021 and November 2022 IESPs, which is not in dispute.
In particular, the hearing record includes the student's initial IESP, created on January 14, 2021 (Parent Ex. B at p. 1). Due to COVID-19 precautions, the student underwent no formal testing preceding the initial eligibility determination (see Parent Ex. B at p. 1; Dist. Ex. 4 at p. 1). The January 2021 CSE determined the student's initial eligibility for special education, and his disability classification, through review of the student's records and a January 2021 psychoeducational evaluation which compiled information obtained from parent and teacher interviews (Parent Ex. B at p. 1; Dist. Ex. 4 at p. 1).
According to the January 2021 IESP, created while the student attended fourth grade, "[p]aperwork submitted by the teacher" indicated that the student was performing at a first grade level in reading, writing, and math (Parent Ex. B at p. 1). A December 2020 teacher report, cited in the January 2021 IESP, stated that the student was "significantly below his peers" in "demonstrating understanding of content area vocabulary"; "demonstrating understanding of instructional material"; decoding; and following directions (id. at p. 2). According to the teacher report, the student required repetition; had difficulty executing "simple academic tasks"; had difficulty "completing simple instructions" with an appropriate response time; had difficulty following common routines and recalling topics or units introduced in previous classes; and needed "step by step help when planning or organizing his thoughts or given tasks" (id.).
The student's school principal attended the January 2021 CSE meeting and reported that the student was performing "poorly in all areas" (Parent Ex. B at p. 3). According to the school principal, the student did not use inferencing or "higher level thinking skills," "often [did not] attempt to do his work," and gave up quickly (id.). The school principal further reported that the student had difficulty "sound[ing] out letters" and reading words but was able to answer "simple 'wh' questions" if a story was read to him (id.).
Regarding reading, the parent reported that the student was unable to consistently identify the letters of the alphabet, confusing lower and upper-case letters; and his reading comprehension was delayed in both Yiddish and English (Parent Ex. B at p. 4). The parent further reported that the student had difficulty identifying sight words; was not yet reading; and presented with delays in retention, "often needing repetition and review" (id.).
The teacher report indicated that, in writing, the student had difficulty with fluency, mechanics, spelling, syntax, grammar, and development of creative/narrative ideas (Parent Ex. B at p. 3). He also struggled with written expression, having difficulty formulating "what he want[ed] to write and putting it down on paper" (id.). The parent reported that the student confused letters and numbers when writing but was able to write his name (id. at p. 4). The January 2021 IESP also stated that the student was "not eloquent in his English abilities" but "ha[d] improved in his ability to write in Hebrew;" and, while the student was able to "write a simple Hebrew sentence," his spelling was poor, and his handwriting was "somewhat messy" (id. at pp. 3-4).
Regarding math, the parent reported that the student performed "well with calculations, including [mental] addition and subtraction," but could not "independently complete math word problems" (Parent Ex. B at pp. 3-4). According to the student's teacher, he encountered difficulty "continuing math patterns" and determining the first step in math word problems (id. at p. 2). The January 2021 IESP also stated that the student was able to count with 1:1 correspondence but could not "complete basic addition and subtraction examples on paper," as he tended to mix up the numbers (id. at p. 3).
Socially, the student's teacher reported that he maintained friendships, respected boundaries with both peers and adults, responded appropriately to authority, maintained self-control, accepted and applied criticism, and accepted responsibility (Parent Ex. B at p. 5). However, the student's teacher also reported that the student was behind his peers in "sharing his ideas and opinions appropriately" and understanding others' "body language"; the student had difficulty engaging in reciprocal conversation, expressing ideas fluently and completely when speaking, and expressing ideas in a concise manner; and the student tended to "shy away in the classroom setting" (id. at pp. 2, 5). At that time, the student had a "behavior management plan" in place, as he engaged in attention seeking and distracting behaviors at school (id. at p. 4).
Regarding physical development, the January 2021 IESP stated that the student was in good health and that his vision and hearing were within normal limits (Parent Ex. B at p. 6). The January 2021 IESP further stated that, due to reported concerns regarding his short attention span, distractibility, need for prompts to refocus, impulsivity, and handwriting issues, the parent agreed that the student would undergo an occupational therapy (OT) evaluation at a later date (id.).
The January 2021 IEP included the following management needs for the student: preferential seating; multisensory activities/lessons; scaffolding and prompting to complete tasks/assignments; reinforcers; motivation charts; praise and encouragement; short breaks; student feedback on instructions given; modeling; guided practice; written models to refer to when completing assignments; repetition and rephrasing as needed; breaking down work into manageable units; graphic organizers; editing checklists; vocabulary cards and visuals; multiplication and division charts; reading/math drills; graded level reading material; modeling; step by step problem solving; and collaboration "amongst disciplines" (Parent Ex. B at p. 7).
The hearing record also includes the student's an IESP developed on November 7, 2022 (Dist. Ex. 7 at p. 1).[16] The November 2022 IESP indicated that the student, then in sixth grade at the same nonpublic school as in 2021, continued to perform at a first grade level in reading, writing, and math (compare Dist. Ex. 7 at p. 1, with Parent Ex. B at p. 1).
According to the November 2022 IESP, while the parent reported that the student was improving in reading and math, she also stated that that the student was "still behind" and required SETSS (Dist. Ex. 7 at p. 1). Regarding social development, the parent reported that the student enjoyed socializing but "really need[ed] counseling" and had not received it in "quite some time" (id.). Regarding physical development, the November 2022 IESP indicated that the student's writing pace was below age level but, overall, he presented with average fine motor skills, and no other physical concerns were noted (id.).
The November 2022 IESP included the same management needs as the January 2021 IESP (compare Dist. Ex. 7 at p. 2, with Parent Ex. B at p. 7).
Other information in the hearing record regarding the student's needs including the October 2023 psychoeducational evaluation and the "year-end" progress report from the student's SETSS provider (see Parent Ex. F; Dist. Ex. 4). These documents statement the student's needs during or at the end of the 2023-24 school year and, therefore are of limited utility in terms of assessing the appropriateness of the parents' decision to unilaterally obtain SETSS for the student for the 2023-24 school year (see Parent Ex. F; Dist. Ex. 4).[17] With the question of the timing of the information in mind, the student's needs as stated in the October 2023 psychoeducational evaluation and year end SETSS progress report will be briefly summarized.
The district conducted the October 2023 psychoeducational evaluation of the student in Yiddish (Dist. Ex. 4 at p. 1). According to the evaluation report included in the hearing record, the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V), used to assess the student's performance across five areas of cognitive ability, yielded an overall FSIQ score of 120, considered to be in the very high range when compared to other children his age (id. at p. 2). The student's performance on the verbal comprehension index yielded a standard score of 108, while his performance on fluid reasoning yielded a standard score of 126 (id.). The evaluator reported that, across other subtests contributing to the FSIQ, significant weakness was seen on the subtest that measured processing speed (id.). The student's academic skills were assessed with the Woodcock-Johnson IV NU Tests of Achievement (WJ-IV NU ACH), which measured the student's reading, math, and written language skills (id. at p. 4). The evaluator reported that the student's "academic skills were divided between stronger mathematical skills [with] all English language academic skills lagging far behind" (id.). Math calculation and fact fluency were the student's relative strengths, while reading, written expression, and spelling, specifically, were his weaknesses (id.). The evaluator reported that the student "demonstrated somewhat limited English language vocabulary and grammar, resorting to his native Yiddish language to express his thoughts" and struggled to read, spell words, and construct sentences in English (id.). While the student knew the letters of the English alphabet, he could not write many words correctly, and spelling was his weakest skill, measuring within the lowest end of very low range (id. at p. 5). The student "was offered a chance to write sentences in Yiddish but often failed to interpret the images and convey adequate meaning," and his written expression yielded a score within the very low range of academic skills (id.).
According to the year-end SETSS progress report, the student was in seventh grade for the 2023-24 school year but read at a fourth grade level (Parent Ex. F at pp. 1-2). The provider reported that, when reading, the student struggled with "fluency and accuracy" and continued to rely on "one-to-one intervention" (id. at pp. 2-3). Regarding writing, the provider reported that the student required "constant prompting" to ensure correct grammar and task completion; often needed "support with spelling, punctuation, and tense"; and struggled with self-motivation, focus, and attention (id. at p. 3).
The SETSS provider described the student's math skills as at the fourth grade level at the end of the 2023-24 school year (Parent Ex. F at p. 2). The provider reported that the student had a foundational understanding of single-digit addition, subtraction, and multiplication; he could compute double-digit addition and subtraction with regrouping, albeit with some errors; he understood the concepts of time and money; and he could solve basic geometry problems with prompts and guidance (id. at p. 5). The provider also reported, however, that the student struggled with word problems and computing double-digit multiplication and division, fractions, decimals, and percentages (id.).
According to the SETSS provider, the student's "poor academic skills, particularly his language-based delay, significantly impact[ed] his social skills" (Parent Ex. F at p. 7). The provider reported that the student struggled to focus "during group learning sessions, requiring frequent redirection to stay engaged," and that the student's need for "regular redirection and reminders to stay on task" could "disrupt his ability to participate meaningfully in class" (id.). Additionally, the provider reported that the student's "difficulty with abstract concepts ma[de] it harder for him to keep pace with his peers, which c[ould] lead to frustration and lack of participation in group activities" (id.). Finally, the provider reported that the student's awareness of his "cognitive limitations compared to his peers" affected his self-esteem (id.).
2. SETSS from Succeed
Regarding the appropriateness of the unilaterally obtained SETSS, the parent argues that the evidence in the hearing record, namely the SETSS progress report and the educational supervisor's testimony, shows that the provider used a variety of strategies to improve the student's reading, writing, and math skills and that the student made progress. According to the parent, the IHO ignored the progress report and improperly imposed upon the parent the burden of furnishing independent information as to the student's current strengths, weaknesses, needs, and goals, requirements that apply to the district in IEP/IESP planning. The district argues that the parent's hearing presentation lacked verifiable evidence of progress; did not explain how the unilaterally obtained SETSS were specially designed to permit the student to benefit from instruction; and did not explain how the unilaterally obtained SETSS correlated to the general education curriculum. According to the district, the IHO did not ignore the progress report but found the progress report—which only provided generalized ideas of the services the student received and the progress he made—too vague to consider.
As explained below, the hearing record supports the conclusion that the parent failed to prove that the services she unilaterally obtained from Succeed were appropriate for the student, albeit for reasons that differ from the IHO's rationale.
The evidence in the hearing record indicates that during the time period at issue, i.e., between September 1, 2023 and December 7, 2023, the student received six hours per week of home-based individual SETSS from Succeed, delivered in Yiddish (Tr. pp. 35-38, 48; Parent Exs. F at p. 1; G at pp. 1-3; I ¶¶ 6, 8). The parent's testimony and timesheets indicate that the student received SETSS at home, either before school in the morning or after school (see Tr. p. 35; Parent Ex. G at pp. 1-3).[18] Both the parent and the educational supervisor testified that the SETSS provider specifically focused on the student's "very weak" reading and writing skills (Tr. pp. 38, 48). Although the district recommended that the student receive SETSS in a group setting, the progress report and witness testimony indicated that he did not receive group SETSS because he needed a one-on-one setting (see Tr. pp. 36-37, 48; Parent Exs. B at p. 13; I ¶ 8; Dist. Ex. 7 at p. 5).[19]
According to the "year end" progress report, the SETSS provider used a "range of interventions" including "visual aids, manipulatives, multisensory instruction, and a high level of reinforcement and praise to target [the student's] specific needs" (Parent Ex. F at p.1).
To help the student improve his reading skills, the SETSS provider used diverse reading materials, genres, and activities with reinforcement through praise, repetition, and explicit instruction (Parent Ex. F at p. 2). The provider indicated that, although the student made progress with making inferences and answering questions in sequence, he struggled with "fluency and accuracy" and continued to rely on "one-to-one intervention" (id. at pp. 2-3).
Interventions used to address the student's writing needs included breaking down the task into manageable steps, prompts for correct spelling and tense, and offering reassurance and encouragement to boost the student's confidence (Parent Ex. F at p. 4). The SETSS provider used targeted practice with sentence structure and writing mechanics, incorporating writing activities such as friendly letters, business letters, and note-taking, which helped the student "develop better penmanship and structure in his writing" (id. at pp. 3-4). The provider reported that the student responded well to visual outlines and guidelines and was "beginning to understand sentence structure and c[ould] form simple sentences with assistance;" but, when tasked with writing a paragraph, the student required "constant prompting" to ensure correct grammar and task completion and "often need[ed] support with spelling, punctuation, and tense" (id. at p. 3).[20] The provider reported that the student's handwriting had shown "significant improvement" with consistent practice (id. at p. 3).
To address the student's math needs, the SETSS provider used games, step by step guidance, and manipulatives (Parent Ex. F at p. 5). The provider reported that the student made progress in double-digit addition and subtraction, with some errors, and opined that "regular practice" and the use of graphic organizers would be "essential" for continued progress (id.).
Finally, the SETSS provider reported that, although the student made progress in his self-esteem and ability to "stay motivated," he continued to struggle to focus and maintain attention during group lessons (Parent Ex. F at p. 7).
While the IHO employed a flawed rationale in faulting the parent for a lack of evaluative information regarding the student's needs as discussed above, the evidence in the hearing record nevertheless fails to establish the appropriateness of the unilaterally obtained SETSS.
As stated above, the Burlington-Carter framework requires the parent to prove that the services she unilaterally obtained for the student constituted specially designed instruction designed to address his unique educational needs. Specially designed instruction is defined as "adapting, as appropriate to the needs of an eligible student . . ., the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).
The student's program consisted of enrollment at a general education nonpublic school along with the unilaterally obtained SETSS from Succeed, with the idea being that the specially designed instruction provided by Succeed should support the student's access to the general education curriculum; however, my review of the hearing record leads me to find that the SETSS from Succeed did not serve this function. The hearing record does not provide any evidence describing how the student's special education needs were met during the school day in his mainstream classroom when he was not receiving special education support. The hearing record is devoid of evidence regarding how SETSS would have been connected to the instruction provided by the nonpublic school during the 2023-24 school year. Yet, on several occasions, the year end progress report identified that, due to his deficits, the student struggled to focus "during group learning sessions, requiring frequent redirection to stay engaged," and that the student's need for "regular redirection and reminders to stay on task" could "disrupt his ability to participate meaningfully in class" (id.).[21]
For that matter, the evidence in the hearing record indicates that, not only was the student was not receiving SETSS during the school day, the student was not receiving instruction in the general education curriculum in the first place. Specifically, the parent testified, as previously noted, that the entirety of the student's special education services were conducted before or after his regular school day and that there were no "English class courses" at the student's nonpublic school during the 2023-24 school year (Tr. pp. 35, 39, 47).[22] When asked if there was an "ability to coordinate any learning" done through SETSS "with an appropriate classroom equivalent," the educational supervisor testified that SETSS was "specifically focused" on the student's math, reading, and writing skills and did not necessarily have anything to do with his classroom environment or "subject matter that he learned in a group setting" (Tr. pp. 47-49). According to the November 2023 prior written notice, the parent reported to the CSE that the student was "not receiving secular instruction" at his nonpublic school for the 2023-24 school year (Dist. Ex. 3 at p. 1). Although Succeed addressed the student's identified needs, as indicated in the progress report, "the use of a special education service[, in isolation,] to replace primary general academic instruction that should have been delivered by the [student's] nonpublic school . . . cannot be ignored" (Application of a Student with a Disability, Appeal No. 24-282).
Moreover, while there is no requirement that a nonpublic educational agency employ state-certified special education teachers (see Carter, 510 U.S. at 14), the hearing record is devoid of information regarding the SETSS provider's educational background or experience.[23]
Therefore, considering that, by definition, specially designed instruction is the adaptation of instruction to allow a student to access a general education curriculum so that the student can meet the educational standards that apply to all students, under the totality of the circumstances, the parent failed to prove that the SETSS she unilaterally obtained from Succeed was appropriate (see Application of a Student with a Disability, Appeal No. 24-196 [finding that the student's unilateral placement was not appropriate where all special education services were provided "at an off-site location"]; Application of a Student with a Disability, Appeal No. 24-282 [stating that "remediation of limited English proficiency that appears to be an issue in the student's primary instruction is not itself the purpose of special education services"]).
VII. Conclusion
In summary, the district's request for dismissal of the parent's appeal and underlying claim for lack of subject matter jurisdiction is denied; and the IHO erred in rendering a determination on whether the district properly declassified the student. As for the period from September 1, 2023 through December 7, 2023, during which the student was eligible for special education and was receiving SETSS from Succeed, there is insufficient basis in the hearing record to disturb the IHO's determination that the parent failed to prove the appropriateness of the services she unilaterally obtained.
I have considered the district's remaining contentions regarding the contracted rate and find it is unnecessary to address them in light of my determinations herein.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
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] Succeed is a limited liability company and has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[3] Parent Exhibits A through G, I and J were admitted into evidence, but proposed Parent Exhibit H was excluded (Tr. pp. 12-13).
[4] District Exhibits 1 through 7, 9, and 10 were admitted into evidence, but proposed District Exhibit 8 was excluded (Tr. pp. 5-10).
[5] The IHO's decision is not paginated. For the purposes of this decision, the pages will be cited by reference to their consecutive pagination with the cover page as page one (see IHO Decision at pp. 1-10).
[6] Unappealed determinations are final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992 (S.D.N.Y. March 21, 2013).
[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] This provision is separate and distinct from the State's adoption of statutory language effectuating the federal requirement that the district of location "expend a proportionate amount of its federal funds made available under part B of the individuals with disabilities education act for the provision of services to students with disabilities attending such nonpublic schools" (Educ. Law § 3602-c[2-a]).
[10] The district did not seek judicial review of these decisions.
[11] A statutory or regulatory amendment is generally presumed to have prospective application unless there is clear language indicating retroactive intent (see Ratha v. Rubicon Res., LLC, 111 F.4th 946, 963- [9th Cir. 2024]). The presence of a future effective date typically suggests that the amendment is intended to apply prospectively, not retroactively (People v. Galindo, 38 N.Y.3d 199, 203 [2022]). The due process complaint in this matter was filed with the district on May 16, 2024 (Parent Ex. A at p. 1), prior to the July 16, 2024 date set forth in the emergency regulation. Since then, the emergency regulation has lapsed.
[12] On November 1, 2024, Supreme Court issued a second order clarifying that the temporary restraining order applied to both emergency actions and activities involving permanent adoption of the rule until the petition was decided (Order, O'Connor, J.S.C., Agudath Israel of America, No. 909589-24 [Sup. Ct., Albany County, Nov. 1, 2024]).
[13] Neither the guidance nor the district indicated if this jurisdictional viewpoint was conveyed publicly or only privately to the district, when it was communicated, or to whom. There was no public expression of these points that the undersigned was aware of until policymakers began rulemaking activities in May 2024; however, as the number of allegations began to mount that the district's CSEs had not been convening and services were not being delivered, at that point the district began to respond by making unsuccessful jurisdictional arguments to SRO's in the past, which decisions were subject to judicial review but went unchallenged (see e.g., Application of a Student with a Disability, 23-068; Application of a Student with a Disability, 23-069; Application of a Student with a Disability, 23-121). The guidance document is no longer available on the State's website; thus, a copy of the August 2024 rate dispute guidance has been added to the administrative hearing record.
[14] "The parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function. To permit [the parent] to add a new claim after the resolution period has expired would allow them to sandbag the school district" (R.E., 694 F.3d 167 at 187-88 n.4; see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 [2d Cir. June 18, 2014]).
[15] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the special education that the parent obtained from Succeed (Educ. Law § 4404[1][c]).
[16] The November 2022 IESP included the results of a December 2021 OT evaluation, which did not include a recommendation of OT for the student (Dist. Ex. 7 at p. 1).
[17] A review of the appropriateness of unilaterally obtained services is not restricted to only the evidence available to the parent at the time she made the unilateral placement decision insofar as implementation of the programming and services and the student's progress are relevant to the analysis (see Khanimova v. Banks, 2025 WL 722876, at *6 [S.D.N.Y. Mar. 6, 2025], citing C.L., 744 F.3d at 836). Nevertheless, a description of the student's needs as of the end of the school year at issue would tend to be relevant to a review of the student's progress or lack thereof rather than establishing the student's underlying needs that the parent was required to establish were met by the unilaterally obtained services.
[18] The parent testified that the student did not want to receive SETSS during class time because he felt embarrassed (Tr. p. 35).
[19] The parent testified that she thought group SETSS "was optional" and that the student did not do well in a group setting (Tr. p. 36). The parent further opined that the student "needed a one-on-one provider," "a closed room with no distractions," and constant motivation, redirection, and refocusing (Tr. p. 37). According to the SETSS provider, the student's SETSS were provided "one-on-one in Yiddish, which [wa]s critical to his success," as a quiet, controlled environment minimized distractions and allowed the student to focus more effectively (Parent Ex. F at p. 1). The provider also opined that the student required a slower pace of instruction and that the individual sessions provided the student with "the necessary detailed guidance and constant check-ins to ensure that he remain[ed] on task" (id. at pp. 1-2).
[20] According to the SETSS provider, the student struggled with self-motivation, focus and attention (Parent Ex. F at p. 3).
[21] While the report provided this description of how the student presented in group activities or with his peers, it is not clear whether this was reported to the SETSS provider or if the provider observed this directly. The provider did not testify at the impartial hearing.
[22] The parent testified that the nonpublic school did not offer a reading and writing course, but they would have if she had insisted or "strongly requested" (Tr. p. 39).
[23] The only evidence regarding provider credentials was the educational supervisor's generalized testimony that Succeed's "providers possess the necessary licenses, experience, and training to provide services" (Parent Ex. I ¶ 4).