STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-188
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances: Law Office of Laura D. Barbieri, PLLC, attorneys for petitioner, by Laura Dawn Barbieri, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Thomas W. MacLeod, 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 the decision of an impartial hearing officer (IHO) which denied her request to be reimbursed for the costs of her son's tuition for a special education program delivered by Reach for the Stars Learning and Developing Center, LLC (RFTS-LD) at the Reach for the Stars Learning Center (RFTS-LC) for the 2022-23 school year. Respondent (the district) cross-appeals from those portions of the IHO's decision which found that RFTS-LC was an appropriate unilateral placement and that equitable considerations weighed in favor of the parent's requested relief. The appeal must be sustained in part. The cross-appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to 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, 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[a]). 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 in this case has continuously attended RFTS-LC since September 2013 (see Parent Exs. T at p. 1; U at p. 1; II ¶ 11).[1] During the 2021-22 school year, a CSE convened on February 8, 2022 to conduct the student's annual review and developed an IEP for the 2022-23 school year (implementation date of July 5, 2022) (see Parent Ex. E at pp. 1, 24).[2] Finding that the student remained eligible to receive special education as a student with autism, the February 2022 CSE recommended 12-month programming consisting of the following: a 6:1+1 special class for instruction in mathematics (10 periods per week), English language arts (ELA, 10 periods per week), social studies (three periods per week), and sciences (two periods per week) (id. at pp. 17-18).[3] In addition, the February 2022 CSE recommended related services, including five 30-minute sessions per week of individual occupational therapy (OT), five 30-minute sessions per week of individual speech-language therapy, and four 60-minute sessions per year of parent counseling and training services (id.). The February 2022 CSE indicated in the IEP that the student did not require "strategies, including positive behavioral interventions, supports and other strategies to address behaviors that impede[d] the student's learning or that of others," and the student did not require a behavioral intervention plan (BIP) (id. at p. 7). The February 2022 IEP included annual goals with corresponding short-term objectives targeting the student's identified needs, as well as testing accommodations (id. at pp. 8-16, 19-20).[4]
In a prior written notice, dated June 8, 2022, the district summarized the special education program recommended for the student, noting that it was expected to begin on July 5, 2022 (see Parent Ex. F at pp. 1-2). In addition, the district sent the parent a school location letter, dated June 8, 2022, identifying the public school (assigned public school site) within which the student's IEP would be implemented (id. at p. 5).
By letter dated June 21, 2022, the parent notified the district of her intentions to unilaterally place the student at RFTS-LC for the 2022-23 school year (12-month program, beginning July 6, 2022) and to seek public funding for the costs of the student's tuition (see Parent Ex. B at p. 1). The parent also requested transportation services for the student's attendance at RFTS-LC, or reimbursement for transportation services if not provided by the district (id. at p. 2). Within the June 2022 letter, the parent noted her concerns with the student's February 2022 IEP and indicated that she had scheduled a visit to the assigned public school site (id.).
Evidence in the hearing record indicates that, on or about June 27, 2022, the student's February 2022 IEP was amended to include additional recommendations for special transportation services (see Dist. Ex. 1 at pp. 1, 23-24, 28). More specifically, the June 2022 IEP reflected the following special transportation services: closest safe curb location to school, a 1:1 paraprofessional, air conditioning, limited travel time, and a route with fewer students (compare Dist. Ex. 1 at pp. 23-24, with Parent Ex. E at pp. 23-24).[5]
Subsequently, in a letter to the district dated June 28, 2022, the parent summarized her visit to the assigned public school site and noted her concerns, including that the "entire program" ate lunch together, the school was not "nut free," and the school had one school nurse (see Parent Ex. G at pp. 1-2). The parent noted that the student had a "severe air borne allergy to all nuts," and he became "unregulated and overwhelmed in large groups" (id. at p. 1).
A. Due Process Complaint Notice
By due process complaint notice dated July 6, 2022, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2022-23 school year (see Parent Ex. A at p. 1).[6] As relevant to this appeal, the parent asserted that the special education program recommended in the February 2022 IEP was not appropriate because the 6:1+1 special class placement was not sufficiently supportive; the IEP failed to include a recommendation for a full-time, individual paraprofessional; the student required 45-minute related service sessions rather than the 30-minute related services sessions recommended in the IEP; the IEP failed to include a recommendation for applied behavioral analysis (ABA) services; and the CSE failed to develop a BIP for the student (id. at p. 6). In addition, the parent noted concerns about the assigned public school site, including that the student cohort did not have similar behavioral needs, it did not offer ABA services or behavioral remediation, and it failed to provide sufficient individual support (id. at p. 7). As relief, and as relevant to this appeal, the parent sought an order directing the district to either reimburse or to directly fund the costs of the student's tuition at RFTS-LC for the 2022-23 school year (id. at pp. 8-9).
B. Events Post-Dating the Due Process Complaint Notice
On August 18, 2022, an attorney with the district signed a "Pendency Implementation Form" for the student (Pendency Impl. Form at pp. 1-2). According to the form, the district's attorney agreed that an unappealed IHO decision, dated May 31, 2022, formed the basis for the student's pendency services, which included the following: payment (directly and/or to the parent as reimbursement) for the costs of the student's tuition at "Reach for the Stars Learning Center" (12-month program) retroactive to the date of the due process complaint notice (July 7, 2022) (id.).
On September 12, 2022, the parent executed an "Enrollment Agreement" with RFTS-LD, indicating that "special education services" for the student would be "provided" at RFTS-LC (Parent Ex. K at pp. 1, 4).[7] The agreement indicated that it was "valid for services beginning July 6, 2022 and continuing through June 30, 2023" (id. at p. 4).[8] According to an addendum attached to the contract, the student's service plan included the following for the 2022-23 school year: special education services—ABA—five days per week and up to "31" hours per week; ABA supervision, five days per week and up to "10" hours per week; related service supervision, five days per week and up to "2.25" hours per week; OT, five days per week for "3.75" hours per week; and speech-language therapy, five days per week for "3.75" hours per week (id. at p. 5). The contract included a rate sheet for the special education and related services to be delivered to the student (id. at p. 6).
C. Impartial Hearing Officer Decision
On September 22, 2022, the parties proceeded to an impartial hearing, which concluded on January 31, 2025, after approximately 35 days of proceedings (see Tr. pp. 1-639). In a decision dated February 16, 2025, the IHO found that the district offered the student a FAPE for the 2022-23 school year and RFTS-LC was an appropriate unilateral placement (see IHO Decision at pp. 3-15). With respect to equitable considerations, the IHO found that the RFTS-LC tuition costs were excessive; she found the contract was "questionable and possibly unenforceable because it [wa]s vague"; and given the parent's income, the IHO found it was "not credible" that the parent "believed themselves to be responsible for the entire payment, that they would have signed such a document" (id. at pp. 15-16). As a result, the IHO indicated that, if relief were awarded, it was appropriate to reduce any tuition reimbursement award by one-third for the 2022-23 school year (id. at p. 16). Next, the IHO briefly noted that the hearing record failed to contain sufficient evidence to award the parent reimbursement or funding for the costs of special transportation and the requested neuropsychological evaluation (id. at p. 17).
In finding that the district offered the student a FAPE for the 2022-23 school year, the IHO described the special education program recommended in the February 2022 IEP, and noted that, although the district had "acknowledged that a speech generating device was not specifically addressed," the February 2022 IEP "indicated that the [s]tudent possessed one, and used it during testing" (IHO Decision at pp. 4-5). Next, the IHO summarized the testimony presented through two district witnesses: the IEP coordinator at the assigned public school site and the district school psychologist (school psychologist) who attended the February 2022 CSE meeting (id. at pp. 5-10).
With respect to the assigned public school site, the IHO noted that the IEP coordinator testified that the site was capable of implementing the special education program recommended in the student's February 2022 IEP and that the site had a seat available for the student (see IHO Decision at p. 5). Upon cross-examination, the IEP coordinator testified that the assigned public school site consisted of a total of 52 students and that the site was "co-located with two other schools" (id. at p. 6). The witness did not know, however, who had spoken with the parent as part of the site tour (id.). The IHO then set forth, directly from the transcript, those portions of the IEP coordinator's testimony explaining the curriculum used at the assigned public school site, how 1:1 instruction could be delivered in the classroom, and how a BIP would be developed if the student required one (id. at pp. 6-7).
Next, the IHO turned to the district school psychologist's testimony at the impartial hearing (see IHO Decision at pp. 7-10). The IHO indicated that, during cross-examination, the witness conceded that while she had not worked at a district specialized school, she had visited similar sites when looking into such programs for students and had received students from such programs (id. at p. 7). The IHO further indicated that the school psychologist's testimony provided "additional support and corroboration" of the IEP coordinator's testimony explaining that a BIP "would be available at the placement school, whether or not specified in the IEP" (id.). The IHO then noted the school psychologist's testimony explaining why the recommended 6:1+1 special class placement was appropriate for the student (id. at pp. 7-8). Similar to the manner in which the IHO set forth the IEP coordinator's testimony directly from the transcript, the IHO did the same here, noting the school psychologist's testimony describing the student's "significant delays in his academic, his social, emotional, and his cognitive skills" as a basis for the February 2022 CSE's recommendation (id.). In addition, the IHO pointed to the school psychologist's testimony describing the student's "delays in his communication skills" and "adaptive behavior," all of which the school psychologist testified was support for the "small size classroom that would help facilitate him to acquire the skills that he need[ed]," such as "prevocational skills" or "preacademic skills" (id. at p. 8). Next, the IHO set forth the school psychologist's testimony offered in response to being asked why the February 2022 CSE did not recommend a 1:1 paraprofessional; the school psychologist testified that the CSE "discussed it," but "felt that the small placement of six students with a special education teacher," together with the classroom paraprofessional, "would be supportive enough" (id.). With regard to the CSE's decision to not develop a BIP for the student, the school psychologist testified that "small-sized classroom[s]" in district specialized schools—such as the one recommended for the student—were "designed in a way where there [we]re behavior plans built into the classroom," and the special education teacher, who had "training on working with students," kept the behavior in the classroom (id.). The IHO also pointed to the school psychologist's testimony that, if a student exhibited "significant severe" or "maladaptive" behaviors, then a student was provided with "their own specific behavior plan"; however in this case, the CSE did not believe the student's "behaviors were negative or [] necessary for him to have his own plan" and that he could "work with a classroom-wide behavior plan" (id. at pp. 8-9). However, the school psychologist also testified that she was unsure whether "all [district specialized school] settings" used classroom-wide intervention plans (id.). The IHO indicated that, when asked to describe a classroom-wide behavior plan, the school psychologist described a multisensory, token system (id. at p. 9). Finally, the IHO reported the school psychologist's testimony about how the annual goals were developed, and that, following her testimony, the district rested its case-in-chief (id. at pp. 9-10).
Turning to the parent's witnesses, the IHO recounted testimony by the parent and the educational director at RFTS-LC (director) (see IHO Decision at pp. 10-11; see also Parent Exs. HH ¶ 1). Reporting, first, on the parent's testimony, the IHO indicated that the parent had "confirmed the amount . . . as to the family's obligation" to RFTS-LD (IHO's Decision at pp. 10-11). In addition, the IHO recounted that the parent testified about the student's "peanut allergy, noting information which was not included in the [due process complaint notice], to the effect that she had spoken with school officials and had been told that these allergies would be met by separating [the s]tudent from other students" (IHO Decision at p. 11, citing Tr. pp. 185-86). The IHO further noted that the parent confirmed she had raised this issue at the February 2022 CSE meeting, but did not "follow up after she saw [that] there was no provision addressing the issue" in the IEP (IHO Decision at p. 11, citing Tr. p. 187).
With respect to the director's testimony, the IHO noted that the director had agreed with the student's program at RFTS-LC, which included daily, 45-minute sessions of OT and speech-language therapy services (see IHO Decision at p. 11). However, when the director was reminded of the weekly total for each related service—i.e., 3.75 hours each for OT and speech-language therapy—the director could not explain why the student's mandates had not been fulfilled (id.). The IHO also noted that, when provided with the opportunity to review the district's documentary evidence, and specifically, district exhibit 17, to challenge or find errors therein, the director failed to do so at the impartial hearing (id.).
After summarizing the testimonial evidence, the IHO found that, consistent with the holding in Endrew F. v. Douglas County School District RE-1, 137 S.Ct. 988, 1002 (2017), "there was a cogent and responsive explanation, for the CSE's program and placement recommendation"; as a result, the IHO concluded that the district sustained its burden to establish that it offered the student a FAPE (IHO Decision at pp. 11-12).
Notwithstanding this conclusion, the IHO examined whether the parent's unilateral placement of the student at RFTS-LC was appropriate (see IHO Decision at pp. 12-15). The IHO found that the hearing record supported a finding that RFTS-LC was "reasonably calculated to result in [the student's] educational benefit," and noted the director's testimony about the program and the student's progress, as well as the documentary evidence (id. at p. 14). For example, the IHO pointed to the director's testimony about RFTS-LC, and its focus on using "1:1 teaching" and ABA to "address goals created after evaluations" (id.). The IHO further noted testimony about the related services students received, including OT and speech-language therapy; data taken continuously throughout the day on behavioral goals; and data analysis to ensure progress was made (id.). In addition, the IHO found that RFTS-LC created BIPs for students to "reduce problem behavior and increase appropriate functional behaviors" (id.). The IHO also reflected the director's testimony about the student's needs, behaviors, goals, and classroom setting (id. at pp. 14-15). For these reasons, the IHO determined that the parent sustained her burden to establish the appropriateness of RFTS-LC as the student's unilateral placement for the 2022-23 school year (id. at p. 15).
Finally, the IHO addressed equitable considerations (see IHO Decision at pp. 15-16). Here, although the IHO noted that a determination on this point rested primarily on whether the parent cooperated with the CSE, the IHO also noted that excessiveness or unreasonableness of costs for services may warrant a reduction in an award of tuition reimbursement (id. at p. 15). The IHO indicated that, as part of this analysis, evidence of rates for services or segregable costs could be considered (id.). According to the IHO, "an almost $400,000.00 school bill" was "excessive," and while a parent was "entitled to locate an appropriate placement, they [we]re not entitled to the most expensive solution" (id. at p. 16). The IHO also noted that the "'co-teaching' model" used at RFTS-LC "allow[ed] for double billing" and the witness testimony attempting to explain the "method of bookkeeping" was "convoluted and fraught with errors" (id.).
In addition, the IHO found that the "contract signed" by the parent was "questionable and possibly unenforceable because it [wa]s vague" (IHO Decision at p. 16). The IHO indicated that, rather than identifying "specific weekly charges," the contract used language, such as "'up to' for each service," which was a "vague term" (id.). In addition, the IHO found that, given the parent's income, it was "not credible" that if she "believed" she would be "responsible for the entire payment," that she would have "signed such a vague document" (id.). The IHO also found that the "contract for services did not provide a tuition based program with a guaranteed minimum number of services or a set educational program" (id.).
In light of the foregoing, the IHO concluded that equitable considerations only partially supported the parent's requested relief, and that she would have reduced any tuition reimbursement awarded by one-third for the 2022-23 school year (see IHO Decision at p. 16). The IHO also noted that the hearing record did not contain sufficient evidence "regarding transportation," but the district was "required to provide special education in accordance" with State and "city requirements" (id. at p. 17). The IHO also found that the hearing record was devoid of evidence to determine whether the parent was entitled to the requested "neuropsychological evaluation" (id.).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred by finding that the district offered the student a FAPE for the 2022-23 school year. Initially, the parent contends that the IHO improperly shifted the burden of proof regarding a FAPE to the parent. Next, the parent argues that the student required one-to-one ABA instruction and, without it, he would likely harm himself or others and he would not have the opportunity to "meet challenging objectives." The parent further argues that the 6:1+1 special class placement recommended in the February 2022 IEP failed to include one-to-one ABA instruction, a BIP, and 45-minute related services sessions. In addition, the parent indicates that the student's recommended special education program lacked an appropriate method to handle the student's peanut allergy, and failed to address the student's need for a speech-generating device. Next, the parent indicates that the district's witnesses lacked familiarity with the student. Finally, the parent contends that the February 2022 IEP failed to include a recommendation for an individual paraprofessional.
With regard to the unilateral placement at RFTS-LC, the parent argues that the IHO erred in finding that the parent would not have been entitled to full reimbursement for the costs of the student's tuition based on equitable considerations. As a final point, the parent asserts that the student's tuition at RFTS-LC should have been fully paid pursuant to pendency.
In an answer, the district responds to the parent's allegations and generally argues to uphold the IHO's findings that it offered the student a FAPE for the 2022-23 school year. As a cross-appeal, the district argues that the IHO erred by finding that RFTS-LC was an appropriate unilateral placement. Specifically, the district contends that the instructors at RFTS-LC lacked appropriate credentials, and the student did not receive all of the contracted for services. The district also argues that equitable considerations do not weigh in favor of the parent's requested relief. Finally, the district contends that the parent rejected pendency because the student received services from RFTS-LD, which operated under a fee-based model and, accordingly, differed significantly from the student's pendency program.
In a reply to the district's answer, the parent reargues issues set forth in her request for review. In an answer to the district's cross-appeal, the parent responds to the district's allegations concerning provider qualifications and services the student received at RFTS-LC, as well as to the district's equitable consideration concerns. Finally, with respect to pendency, the parent contends that the corporate structure of RFTS-LD has no bearing on the student's pendency rights.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[9]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; 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., 554 F.3d at 252). 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, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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 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., 694 F.3d at 184-85).
VI. Discussion
A. Preliminary Matters—Burden of Proof
The parent argues that, within the decision, the IHO "implie[d]" that the parent and the parent's witnesses "should have done more to achieve a FAPE" or to establish problems with the district's case. Parenthetically, the parent points to the following as examples: the IHO's implication that the parent—who raised the student's peanut allergy at the CSE meeting—should have followed up after the CSE; and the IHO's implication that a parent witness, who testified about the student's need for 45-minute related services sessions, should review district exhibits and readdress this issue at the next impartial hearing date.
The district disagrees, asserting that the IHO did not shift the burden of proof. More specifically, the district contends that the examples cited by the parent "appear to be inadvertently misplaced observations concerning the testimony of the parent witnesses," which had no connection to the district's burden of proof and did not constitute a shifting of the burden of proof to the parent. Alternatively, the district argues that, even if the "observations" cited by the parent related to the district's burden of proof regarding FAPE, these observations were not determinative factors relied on by the IHO.
Under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer v. Weast, 546 U.S. 49, 59-62 [2005] [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]). However, under State law, the burden of proof has been placed 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 Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85). Ordinarily, however, which party bore the burden of persuasion in the impartial hearing becomes relevant only if the case is one of those "very few" in which the evidence is equipoise (Schaffer, 546 U.S. at 58; Reyes v. New York City Dep't of Educ., 760 F.3d 211, 219 [2d Cir. 2014]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 225 n.3 [2d Cir. 2012]; T.B. v. Haverstraw-Stony Point Cent. Sch. Dist., 933 F. Supp. 2d 554, 565 n.6 [S.D.N.Y. 2013]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *5 [S.D.N.Y. Mar. 19, 2013]; see F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 4 [2d Cir. Jan. 8, 2014]).
Upon review of the decision, the IHO accurately set forth the legal standard to determine FAPE as well as the appropriate burden of proof standard (see IHO Decision at pp. 3-4, 11-12). Consistent with the parent's argument on appeal, the IHO noted in the decision that the parent had raised the issue of the student's peanut allergy at the CSE meeting—even though the parent had not raised this as an issue in the due process complaint notice—and whether she "attempted to follow up after she saw there was no provision [in the IEP] addressing the issue" of the student's peanut allergy (id. at p. 11).[10] While the IHO's analysis of whether the district offered the student a FAPE for the 2022-23 school year was brief, the IHO's analysis did not appear to weigh the parent's testimony about the student's peanut allergy or whether she followed up with the CSE about the allergy as a factor in determining that the district had sustained its burden of proof or, conversely, that it was the parent's burden of proof to establish that the district had failed to offer the student a FAPE.
As to the parent's claim that the IHO improperly shifted the burden of proof to the parent because the parent's witness—the director of RFTS-LC—did not point out flaws in the district's evidence with regard to the student's related services mandate, this argument is also unavailing. In the decision, the IHO factually noted that, at the impartial hearing the director was questioned about the delivery of the student's related services at RFTS-LC, namely, 3.75 hours per week of OT and 3.75 hours per week of speech-language therapy during the 2022-23 school year, and more specifically, whether the student had received all of the mandated services when presented with the district's evidence demonstrating that the student may not have received the full mandate each and every week (see IHO Decision at p. 11). The IHO also noted that, having been presented with the district's evidence, and having been provided with the opportunity to "point out a flaw" in the district's evidence, the director "did not raise it at the next [impartial] hearing" (id.).
Here, although the IHO pointed to this portion of the director's testimony within her analysis of the district's burden of proof on FAPE, the IHO's ultimate determination does not appear to weigh this testimony as a factor in reaching that determination. Nor does the parent articulate how the IHO's recitation of these facts shifted the burden of proof to the parent with regard to FAPE. In addition, any alleged failure on RFTS-LC's part to deliver the full mandate of OT and speech-language therapy services to the student during the 2022-23 school year, as revealed by this testimony and evidence, goes more directly toward whether RFTS-LC was an appropriate unilateral placement or to an excessiveness of cost argument, rather than toward the district's burden to establish FAPE.
For these reasons, the parent's arguments that the IHO improperly shifted the burden of proof must be dismissed.
B. February 2022 IEP
1.Special Factors—Interfering Behaviors (Functional Behavioral Assessment [FBA]/BIP)
The parent argues that the IHO erred by finding that, even if the February 2022 IEP did not include a BIP for the student, testimonial evidence established that a BIP could be available at the assigned public school site. The parent contends that this testimonial evidence was retrospective, as it took place after the completion of the 2022-23 school year and, when the parent had to choose between the assigned public school site and placing the student at RFTS-LC, she had no reason to believe that the student would be provided with a BIP. The parent also argues that the district school psychologist testified that the student would not have had a BIP, but may have had a "classroom behavioral plan."
The district does not directly address the parent's allegations about the failure to develop a BIP for the student, other than noting that the district recommended "adequate behavioral supports in the classroom rather than 1:1 ABA and a 1:1 paraprofessional" (Answer & Cr. App. ¶¶ 9-14). In support of this assertion, the district points to the district school psychologist's testimony, which according to the district, establishes that the 6:1+1 special class placement in a specialized public school offered "both paraprofessional support and a behavior plan on a classroom-wide basis" that was "sufficient to meet [the s]tudent's individualized needs" (id. ¶ 11). The district also points to the IEP coordinator's testimony, which the district asserts acted to corroborate the district school psychologist's testimony "concerning the behavioral supports incorporated within the 6:1+1 program" at the assigned public school site.[11]
Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., 361 Fed. App'x 156, 160 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172). State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider developing a BIP for a student that is based upon an FBA (8 NYCRR 200.4[d][3][i], 200.22[a]-[b]). Additionally, a district is required to conduct an FBA in an initial evaluation for students who engage in behaviors that impede their learning or that of other students (8 NYCRR 200.4[b][1][v]).
State regulations define an FBA as "the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment" and include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it
(8 NYCRR 200.1[r]). According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors (8 NYCRR 200.22[a][2]). An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement" (8 NYCRR 200.22[a][3]).
Although State regulations call for the procedure of using an FBA when developing a BIP, the Second Circuit has explained that, when required, "[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all" (R.E., 694 F.3d at 190). The Court also noted that "[t]he failure to conduct an FBA will not always rise to the level of a denial of a FAPE," but that in such instances particular care must be taken to determine whether the IEP addresses the student's problem behaviors (id.).
With regard to a BIP, the special factor procedures set forth in State regulations note that the CSE shall consider the development of a BIP for a student with a disability when:
the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; (ii) the student's behavior places the student or others at risk of harm or injury; (iii) the CSE or CPSE is considering more restrictive programs or placements as a result of the student’s behavior; and/or (iv) as required pursuant to [8 NYCRR 201.3]
(8 NYCRR 200.22[b][1]).
If the CSE determines that a BIP is necessary for a student "[t]he [BIP] shall identify: (i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors . . . ; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals" (8 NYCRR 200.22[b][4]).
The district's failure to develop a BIP in conformity with State regulations does not, in and of itself, automatically render the IEP deficient, as the IEP must be closely examined to determine whether it otherwise addressed the student's interfering behaviors (see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 80 [2d Cir. 2014]; F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 6-7 [2d Cir. Jan. 8, 2014]; M.W. v. New York City Dep't of Educ., 725 F.3d 131, 139-41 [2d Cir. 2013]; R.E., 694 F.3d at 190).
Here, it is undisputed that the district did not conduct an FBA of the student and the February 2022 CSE indicated in the IEP that the student did not "need strategies, including positive behavioral interventions, supports, and other strategies" or a BIP to "address behaviors that impede the student's learning or that of others" (Dist. Ex. 3A at p. 7). However, upon review of the evidence in the hearing record, it is unclear how the February CSE reached the conclusion that the student did not require more support—either through conducting an FBA and developing a BIP, or through the support of a paraprofessional—to address the student's behaviors, especially where, as here, the student's hair pulling could be characterized as aggressive and injurious to himself or others.
When reviewing the February 2022 CSE meeting minutes, the evidence reflects that the parent provided the following information at the meeting: the student was sensory seeking and "sensitive to sounds in the environment"; he liked to "touch people's hair and skin"; as he aged, the student's behaviors improved"; and he did not "like to touch people's faces as much" (Dist. Ex. 3 at p. 1). In addition, the CSE meeting minutes indicated that the student did "not know how to interact with other peers"; he "often grab[bed] hair and want[ed] to touch"; and it was also noted that, even with familiar peers, he sometimes "pull[ed] their hair" (id.).
Similarly, the February 2022 CSE meeting minutes reflect information provided by the director of RFTS-LC, who attended the meeting (see Dist. Ex. 3 at pp. 2-3). For example, the director noted that the student's "behaviors interfere[d] with his classroom performance," and he "scratche[d] other students," grabbed their hair, and "react[ed] negatively, if he d[id] not receive attention" (id. at p. 2). The director also noted that the student "react[ed] negatively" if a task was "too difficult," and described him as "impulsive" (id.). The director indicated that the student's "behaviors interfere[d] with his ability to respond in a quick manner" and there was a "sensory component that need[ed] to be addressed" (id.). In addition, the director indicated that the student would sometimes grab teachers as he passed them in the hallways and he was often given something to hold in his hands "so he d[id] not use his hands to grab on to others or seek attention" (id.). As a final point, the director indicated that the student "engage[d] in maladaptive behaviors when he [wa]s denied access to desired items or when he ha[d] difficulty communicating his wants and needs," and these behaviors included "pulling hair, biting items, and scratching" (id.).
In addition, the February 2022 CSE meeting minutes reflected additional comments by the director, who indicated that RFTS-LC thought the student required a "1[:]1 para[professional] because of [the student's] allergies and maladaptive behaviors" (Dist. Ex. 3 at p. 3).[12]
To be fair, the February 2022 CSE noted the student's behaviors in the IEP. For example, the CSE indicated that the student "present[ed] with self[-]stimulatory skills," and engaged in behaviors of "hair pulling, mouthing of items and scratching others and items," which "interfere[d] with his ability to fluently respond to a task" (Parent Ex. E at p. 4). The CSE further noted that the student "react[ed] this way at times when someone d[id] not give him attention, if a task [wa]s too difficult for him" or when engaged in a "non-preferred activity" (id.). As noted previously, the February 2022 IEP also included concerns voiced by the parent, which included the student's hair pulling behavior (id.). However, other than including one annual goal with corresponding short-term objectives targeting the student's "maladaptive behavior of hair pulling and scratching" in the context of improving his overall social/emotional skills, the February 2022 IEP did not include any other strategies or supports to address the student's behaviors (id. at p. 14).
At the impartial hearing, the district school psychologist testified that, although the February 2022 CSE discussed the student's maladaptive behaviors, the CSE did not develop a BIP for the student because the 6:1+1 special class placement in a district specialized school was "designed in a way where there [we]re behavior plans built into the classrooms" (Tr. p. 137; see Dist. Ex. 3 at pp. 1-3). She also explained that students with severe or significant maladaptive behaviors could receive "their own specific behavior plan," but the CSE "did not feel that [the s]tudent's behaviors were negative or as necessary for him to have his own plan" (Tr. p. 137). The school psychologist also noted that the student's classroom would have included a special education teacher, "who ha[d] training on working with students," there would have been only six students in the classroom, and the "classroom teacher ke[pt] the behavior" (id.). However, when asked if she knew whether all specialized schools in the district had a "class-wide behavior intervention plan," the school psychologist testified that, although she had visited such classrooms with "their own behavior plans," she did not know if that was true "across the board" with all district specialized schools (Tr. pp. 137-38). She then described what she had observed as a classroom-wide behavior plan, which included students earning tokens through good behavior and using those tokens to select a prize (see Tr. pp. 138-39).
The parent testified that, at the February 2022 CSE meeting, the district school psychologist "insist[ed] that the classroom teacher could handle [the student's] behavior and that he did not need an individualized behavior plan or 1:1 ABA instruction" (Parent Ex. II ¶ 6). However, the parent also testified that she did not "believe [the school psychologist] understood how severe [the student's] needs were" and that the CSE—in light of its ultimate recommendations—failed to "meaningfully consider" the student's need for "very small classes with 1:1 instruction, the [ABA] method, a [BIP], daily related services in 45-minute sessions, and a speech-generating device," which she and the RFTS-LC staff attending the meeting voiced at that time (id. ¶¶ 5-6; see Parent Ex. E at p. 27).
Based on the available evaluative information, the February 2022 CSE had sufficient reason to suspect that the student's behaviors, while noted and briefly described in the IEP, continued to be of concern even while the student was attending RFTS-LC, which, during the 2021-22 school year, was an educational setting that provided him with individual adult support throughout the school day. Accordingly, this is not an instance where there was evidence before the February 2022 CSE that the student's interfering behaviors were being adequately managed and the lack of an FBA combined with the lack of evidence that the student's interfering behaviors could have been addressed in the recommended 6:1+1 special class without additional supports necessitates a finding of a denial of a FAPE (see R.E., 694 F.3d at 190 ["[W]hen an FBA is not conducted, the court must take particular care to ensure that the IEP adequately addresses the child's problem behaviors"]; K.S. v. Harrison Cent. Sch. Dist., 2025 WL 3442916, at *16 [S.D.N.Y. Dec. 1, 2025] [noting that a violation of the IDEA based upon failure to conduct an FBA may arise where the evidence does not indicate that the student's behaviors were being adequately managed in the time leading up to the CSE]). Therefore, the district's failure to conduct an FBA and consider the development of a BIP constitutes a failure to offer the student a FAPE for the 2022-23 school year.
Having found that, contrary to the IHO's finding, the district failed to offer the student a FAPE for the 2022-23 school year, it is unnecessary to address the parent's remaining claims asserted upon which to find a denial of FAPE. Nevertheless, briefly and out of an abundance of caution, the evidence in the hearing record would support findings that the February 2022 CSE's recommendations for a 6:1+1 special class placement—absent additional adult support—was insufficiently supportive and failed to offer the student a FAPE for the 2022-23 school year.[13]
Initially, while the district school psychologist's testimony may have adequately explained the February 2022 CSE's decision to recommend a 6:1+1 special class placement (see Tr. pp. 135-36), her rationale for the CSE's decision to not recommend additional adult support within that special class—especially where, as here, the student was transitioning from a classroom with 1:1 adult support at RFTS-LC, as well as the support of a BIP to address behaviors, to a classroom where two adults would have essentially been providing support to all six students in the class, without a BIP in place for guidance as to how to address the student's interfering behavior—was insufficient. Notably, to support her finding, the IHO pointed to the school psychologist's testimony that the February 2022 CSE did not recommend a 1:1 paraprofessional to support the student in the 6:1+1 special class placement because the CSE felt that the classroom student-to-teacher ratio was "supportive enough" (IHO Decision at p. 8). In addition, to the extent that the school psychologist testified that the February 2022 CSE discussed whether to recommend a 1:1 paraprofessional for the student, the CSE meeting minutes in the hearing record do not reflect any such discussion, other than noting that RFTS-LC staff attending the meeting believed that the student required a 1:1 paraprofessional due to his "allergies and maladaptive behaviors" (Dist. Ex. 3 at pp. 1-3).
C. Unilateral Placement—RFTS-LC
Overall, the district's cross-appeal with regard to the parent's unilateral placement at RFTS-LC does not challenge the student's needs, whether RFTS-LC delivered specially-designed instruction to the student, or whether the student made progress at RFTS-LC during the 2022-23 school year (see Answer & Cr. App. ¶¶ 15-18). Instead, the district argues that the IHO erred by finding that RFTS-LC was an appropriate unilateral placement because the individuals providing instruction to the student did not possess "appropriate qualifications, skills, and/or experience to address [the s]tudent's academic needs." The district also asserts that the parent failed to establish that the student received "all of the services called for in the purported contract" between the parent and RFTS-LD.
The parent contends that, based on the evidence, the student's providers at RFTS-LC possessed relevant ABA credentials and had extensive experience working with students with autism. Additionally, the parent asserts that the RFTS-LC staff delivered services to the student that the district failed to offer.
Turning to the standard to be applied, a private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1.Provider Qualifications
In support of its contention concerning provider qualifications, the district points to language from Application of a Student with a Disability, Appeal No. 24-347, indicating that while teachers or providers at unilateral placements need not hold State certifications, the evidence in the hearing record must support a finding that those providers delivering special education instruction or supports to the student have reasonable qualifications specifically related to the student's deficits. In this matter, the district asserts that although the student's 1:1 ABA providers "might possess some type of credentials relating to ABA, they do not possess even the basic teaching credential that would be necessary to deliver reasonably qualified instruction to someone with needs such as those exhibited by [the s]tudent." However, this is just another way of arguing that the student's providers at RFTS-LC were not certified teachers, which, when examining the transcript citations used to support the district's assertion, reflects the district's attempts during cross-examination to confirm that the student's providers at RFTS-LC, while perhaps credentialed to deliver ABA services, were not certified teachers (see Tr. pp. 587-92).
Contrary to the district's contentions, the hearing record includes evidence about the qualifications of the student's RFTS-LC providers. For example, the educational director at RFTS-LC testified that each classroom's lead teacher held a Bachelor's degree, and had previous experience providing ABA services (see Parent Ex. HH ¶¶ 1, 14). She also testified that the lead teachers received "training on each student's specific program," "principles of ABA, and [the RFTS-LC] data collection system" (id. ¶ 14). The educational director further testified that all of the RFTS-LC lead teachers were "working towards higher education in the areas of BCBA certification, special education, or Psychology" and that each classroom was also staffed with a speech-language pathologist, occupational therapist, and behavior analyst, as well as having "up to four teachers and one assistant teacher who instruct[ed] one student at a time" (id.). With respect to the assistant teachers, the educational director testified that they were all "at least working towards a bachelor's degree in a related field and ha[d] substantial training on ABA and student-specific protocols" (id.). Additionally, the educational director noted that all speech-language pathologists and occupational therapists were "required to have their master's degree and be licensed in their respective fields" (id.). The educational director also testified that RFTS-LC staff received training on "student-specific programs as well as overall theories and methodologies," noting specifically that each teacher was "trained on how to utilize the behavior plan for each student appropriately" and that this training took place Fridays at 1:30 p.m. to 3:30 p.m. and was delivered by either her or an "outside source" (id. ¶ 19).
Additionally, the hearing record includes evidence about the qualifications of the student's RFTS-LC providers through the testimony given by the RFTS-LD administrator. The administrator testified that he was responsible for "overseeing the operations and finances of RFTS since May 2022" (Parent Ex. KK ¶¶ 1, 4).[14] As part of his responsibilities, the administrator "review[ed] contracts and overs[aw] the process of keeping track of the hour and rates for RFTS students' program components" (id. ¶ 4). The administrator's testimony included identifying the providers who delivered services to the student during the 2022-23 school year at RFTS-LC, as well as listing each provider's credentials (id. ¶ 8). Based on this testimony, approximately five out of the student's seven ABA providers held a Bachelor's degree, and of the remaining two ABA providers, one was working towards a Bachelor's degree (with seven plus years of experience working in the field of autism) and one held an Associate's degree (with three plus years of experience in ABA) (id.). In addition, the same testimony reflects that, with respect to the student's two ABA supervisors, one held a Bachelor's degree, was a registered behavior technician (RBT), and was working toward a Master's degree; the second ABA supervisor was a BCBA with 10 plus years of ABA experience and held a Master's degree in special education (id.). The testimony further reflects that the student's OT and speech-language therapy providers were appropriately credentialed in their respective fields (id.).
2.Delivery of Contracted Services
Here, the district generally asserts that RFTS-LC was not appropriate for the student because he did not receive all of the services called for pursuant to the parent's contract with RFTS-LD. In support of this assertion, the district points to transcript pages but does not identify what services were not delivered, or the alleged discrepancies thereto that could not be accounted for in testimony.
According to the contract, RFTS-LC—together with the parent—developed a service plan for the student for the 2022-23 school year that could be modified to "appropriately meet the student's specific needs" and further noted that any such modifications required "approval by the parent" (Parent Ex. K at p. 5). Specifically, the service plan called for the delivery of the following to the student on a weekly basis: up to 31 hours per week of ABA services, up to 10 hours per week of ABA supervision services, up to 2.25 hours per week of related services supervision, as well as a specified amount of 3.75 hours per week of OT services and 3.75 hours per week of speech-language therapy services (id.).
The hearing record also includes a copy of the student's weekly schedule at RFTS-LC for the 2022-23 school year (see Parent Ex. O). The schedule reflects that, consistent with the contract terms, the student was scheduled to receive one 45-minute session per day of OT services and one 45-minute session per day of speech-language therapy services, for a total of 3.75 hours per week for each related service respectively (per five-day week) (compare Parent Ex. O, with Parent Ex. K at p. 5). The schedule also reflects that the student was scheduled to receive five 45-minute sessions of ABA services, one 30-minute session of ABA services, and 2 hours of extended day ABA services on Monday, Tuesday, and Wednesday, for a total of 6.25 hours per day of ABA services on Monday, Tuesday, and Wednesday; on Thursday, the student was scheduled to receive four 45-minute sessions of ABA services, one 30-minute session of ABA services, and 2 hours of extended day ABA services, for a total of 5.50 hours of ABA services on Thursday; and on Friday, the student was scheduled to receive four-45 minute sessions of ABA services (no extended day ABA services) for a total of 3.00 hours of ABA services on Friday (see Parent Ex. O).[15] Based on these calculations, the student was scheduled to receive approximately 27.25 hours per week of ABA services.
The evidence in the hearing record also includes a copy of the student's attendance at RFTS-LC for the 2022-23 school year, which reflects that the student attended every day when school was in session from July 6, 2022 through June 22, 2023 (see Parent Ex. CC). Based on the attendance record, the number of days when RFTS-LC was in session varied from month-to-month (id.). For example, in August 2022, it appears that school at RFTS-LC was in session for 14 days; in October 2022, it appears that school at RFTS-LC was in session for 16 days; and in April 2023, it appears that RFTS-LC was in session for 12 days (id.). Overall, the evidence reflects that the student attended RFTS-LC for a total of approximately 207 days during the 12-month, 2022-23 school year (id.).
With regard to services delivered to the student, the RFTS-LC administrator testified about the hours for each service—ABA services, OT services, and speech-language therapy services—delivered per month for the 2022-23 school year (see Parent Ex. LL ¶ 5[a]-[l]). Turning first to the related services delivered to the student on a daily basis for 45 minutes per session, the student should have received a total of 155.25 hours of both OT and speech-language therapy during the 2022-23 school year (207 x .75). Using the administrator's testimony, the student received a total of approximately 132.50 hours of speech-language therapy and a total of approximately 131.33 hours of OT services during the 2022-23 school year (see Parent Ex. LL ¶ 5). Accordingly, although the student's RFTS-LC educational plan for the 2022-23 school year reflects that the student was receiving five 45-minute sessions per week of speech-language therapy and OT services, consistent with the contract mandates (compare Parent Ex. DD at p. 1, with Parent Ex. K at p. 5), based on the calculations for services actually delivered, the student did not receive approximately 22.75 hours of speech-language therapy, and in OT, the student did not receive approximately 23.92 hours of services.
Therefore, based solely on the discrepancies listed above and consistent with the district's assertion, the student did not receive all of the speech-language therapy and OT services that the student was scheduled for and that the parent contracted for the student to receive during the 2022-23 school year. Additionally, although the parent's contract with RFTS-LD reflects that the services and hours listed in the addendum to the contract were "subject to change based upon any changes in the [s]tudent's needs," and that any such changes to the student's services would be provided "as necessary" in a "revised addendum," the hearing record does not contain any evidence that the student's needs changed such that the student's services, as listed in the addendum, were altered to accommodate those changing needs (Parent Ex. K at pp. 1-2, 5).
At the impartial hearing, the educational director testified that the related services may not have been fully delivered due to the student's severe behaviors interrupting his participation in those therapies (such as aggression toward the provider), the providers' absences, and at one point during the school year, a speech-language therapist left employment (see Tr. pp. 382-84).
With respect to ABA services, the administrator's testimony shows that the amount delivered to the student varied from a high of 140.50 hours in March 2023 (student attended for 21 days) to a low of 65.50 hours in August 2022 (student attended for 14 days) (see Parent Exs. CC; LL ¶ 5[b], [i]). Here, allowing for a 42-week school year (i.e., 36 weeks for the 10-month school year and 6 additional weeks for July and August), the student should have received approximately 1144.50 hours of ABA services based on the student's weekly schedule (42 x 27.25 per week), and according to a tally of the ABA services in the administrator's testimony, the student received a total of approximately 1267.67 hours of ABA services over the course of his 12-month program (see Parent Ex. LL ¶ 5).[16] Therefore, while the amount of ABA services may have varied month to month, the student appears to have received more ABA services than scheduled for on a weekly basis (see Parent Ex. O).
Under the circumstances in another administrative proceeding, evidence that a different nonpublic school was not delivering services to a student consistent with the recommendations in its own educational plan had been found to support a finding that the nonpublic school was not an appropriate unilateral placement (see Application of a Student with a Disability, Appeal No. 23-136). In that administrative proceeding, testimonial evidence established that, due to a lack of related service providers, the nonpublic school was only able to deliver a little more than half of the related services recommended in that student's educational plan and the hearing record lacked any evidence to ascertain the actual amount of related services provided to the student for the school year in question (id.). In that matter, it was also apparent that any attempt by the nonpublic school to provide the student with all of the make-up services for the missed related services would be impossible to deliver by the end of the school year at issue (id.). Moreover, the evidence in that hearing record also demonstrated that the student required consistent delivery of related services—i.e., daily, five days per week, therapy sessions—in order to make gains and progress (id.). Thus, given the evidence in that administrative proceeding, the nonpublic school's substantial failure to adhere to its own plan and to deliver the mandated related services as recommended in the student's educational plan supported a finding that the parent had failed to establish that the nonpublic school provided the student with specially designed instruction to permit the student to benefit from instruction (id.). Additionally, the hearing record, in that matter, was devoid of evidence that the student made progress under the program actually delivered to the student, and thus, under the totality of circumstances, the parent's request for funding of the costs of the student's tuition at the nonpublic school was denied (id.).
Comparatively in this instance, RFTS-LC's failure to deliver all of the student's related services during the 2022-23 school year does not appear to rise to the same level of the nonpublic school's failure to deliver services as found in Application of a Student with a Disability, Appeal No. 23-136, however, it nonetheless raises a concern about whether RFTS-LC was an appropriate placement for the student. Related to the delivery of services during the 2022-23 school year, is the student's progress at the unilateral placement, accordingly it is necessary to examine whether the student made progress under the program actually delivered by RFTS-LC during the 2022-23 school year.[17]
Turning to evidence of the student's progress at RFTS-LC during the 2022-23 school year, a review thereof reveals inconsistent and perhaps slower than desired rates of progress, but progress, nonetheless, commensurate with the student's abilities. Based on the evidence in the hearing record, when the student began attending RFTS-LC for the 2022-23 school year, RFTS-LC conducted an "Assessment for Functional Living Skills (AFLS) to determine his present levels of performance and gaps in development" (Parent Ex. HH ¶ 23). The educational director testified that she selected this assessment because the student, who was 14 years old at the time, needed a "program that [wa]s focused on developing functional independent living skills" (id.). She also testified that the AFLS was "a non-norm referenced assessment for children who c[ould not] be appropriately evaluated using standardized assessments" (id.). Based on the AFLS, the student presented with "global delays and weaknesses across academics, communication skills, social-development, and self-managements (sic) skills" (id. ¶ 24). More specifically, the educational director explained that the student's "communication [wa]s extremely restricted," he relied on his AAC device and "only functionally use[d] it to make limited requests," he was "not fully toilet trained and refused to complete grooming and self-care routines" (such as hand-washing), he could not "eat appropriately with peers" and grabbed their food, and he exhibited "multiple restricted and repetitive behaviors" ("mouthing inedible objects, vocalizations, and hand stereotypy, as well as aggressive behaviors such as scratching and hair-pulling") (id.). According to the educational director, the student's program was developed based on the AFLS results to address his "functional academic, social-communication, self-care, self-management, and community participation needs" (id. ¶ 25). For the 2022-23 school year, the student's program focused on the following domains: social skills, receptive communication and identification, functional communication, behavioral skills, leisure and play skills, self-care, community safety and participation, self-management, and prevocational skills (id. ¶ 26 [a]-[i]).
The hearing record includes testimonial evidence about progress, as well as three documents reporting on the progress the student made in each aforementioned domains during the 2022-23 school year: the student's RFTS-LC "Individualized Educational Plan" (RFTS-LC education plan), his RFTS-LC "Individualized Educational Plan" pertaining solely to his long-term and short-term goals in the language and communication domain (RFTS-LC speech-language progress report), and his RFTS-LC "Individualized Educational Plan" pertaining solely to his long-term and short-term goals in OT (see generally Parent Exs. DD-FF).
With regard to testimonial evidence, the educational director testified that, during the 2022-23 school year, the student made "gradual and steady progress" (see Parent Ex. HH ¶ 43). More specifically, she testified that the student "showed increased independent self-help skills," and by the end of the school year, he could "prepare his own meal, clean his own dishes, and use utensils to eat food" (id.). He could also "request bathroom fluently and greet people with his device," the student could "participate in leisure activities" (i.e., riding a scooter, tolerating a helmet, playing basketball), he could "more safely navigate the community with 1:1 support" and "restrain himself from touching every item in the store," and the student "no longer put[] inedible objects in his mouth" (id.). The student also "began to develop some pre-vocational skills, such as sorting items into categories and hanging up shirts" (id.).
With respect to the RFTS-LC educational plan, which reported progress in the seven domains of the student's program (language and communication, group skills, social play and leisure skills, health and wellness, activities of daily living [ADL], prevocational skills, and independent living skills), a review thereof reveals that the student made slow and steady progress toward his long-term goals via his short-term goals (see Parent Ex. DD at pp. 3-11). The RFTS-LC educational plan reported on the student's progress across four quarters on his long-term goals through ratings given on his short-term goals (id.). Overall, the educational plan reflected approximately 14 long-term goals and approximately 51 short-term goals (id.). Of those 51 short-term goals, the progress report reflected that approximately 10 had yet been targeted across all four quarters, with the majority of those (a total of 4 short-term goals) falling within the student's long-term goal to improve his expressive vocabulary skills using his AAC device (id.). The rating scale included both letters, such as "M" for mastered and "NYT" for not yet targeted, as well as numbers from 1 to 4 that described a percentage of skills met: a rating of 1 indicated that the student had met 25 percent or less of the skills, a rating of 2 indicated that the student had met 26 to 50 percent of the skills, a rating of 3 indicated that the student had met 51 to 75 percent of the skills, and a rating of 4 indicated that the student had met 76 to 99 percent of the skills (id. at p. 1). It was noted within the educational plan that the student's "frequent challenging behaviors . . . interfere[d] with his daily routine," and his behavior plan required modifications "due to an insignificant decrease in problem behavior over a period of several consecutive weeks" (id. at p. 1). It was also noted that the student's behaviors prevented him from "maintaining and learning new skills" (id. at p. 2).
In all seven domains, the RFTS-LC educational plan reflected that student's ratings either increased or remained the same across all four quarters (see Parent Ex. DD at pp. 3-11). In addition, the educational plan reflected that the student had also mastered several short-term goals in the areas of improving his pragmatic language skills using his AAC device, improving his use of the AAC device to communicate, and in his social play and leisure skills (passing a soccer ball and retrieving a basketball) (id. at pp. 6-7). The student also mastered one short-term goal with respect to his ADL skills for brushing his hair, one short-term goal in the area of prevocational skills for sorting items, one short-term goal in the area of independent living skills related to gathering necessary materials for familiar activities, and two short-term goals in the area of community and safety pertaining to walking in the community and remaining at arms-length of an adult while waiting in line (id. at pp. 8-10).
In addition to the numeric and alphabetical ratings, the RFTS-LC educational plan included mid-year and end-year narrative descriptions of the student's progress. For example, in the area of receptive language skills (pre-language), the mid-year and end-of year review narratives indicated that student could follow "a [three]-step sequence to complete a task without visual support independently," such as his "Arrival Routine (Unpacking backpack), [and his] Pack-up Routine (Packing Backpack)" (Parent Ex. DD at pp. 3-4). In addition, the narratives indicated that the student could "follow a visual schedule to engage in the Morning Routine (Brushing Teeth, Washing Face, and Brushing Hair)" (id.). The mid-year narrative included "new targets" for the student, which included "responding to 'WH-Questions (Who, What, Where) receptively" (id.). As of mid-year, the student could "identify locations (Where) such as [the] gym, bathroom and kitchen independently in a field of [three] cards" (id.). The student was "working on identifying familiar people (Who) in the classroom such as his speech therapist and [two] other therapists" (id.). At that time, he "still need[ed] gestural prompt[s] to identify people in a field of [three] cards" (id.). From mid-year to end-year, the student improved his ability to complete the morning routine tasks because he "no longer need[ed] physical assistance" (id.). According to the end-year narrative, the student "achieved this by constant redirection, set routine, faded physical assistance, and constant verbal praise" (id.).
Turning to the RFTS-LC speech-language progress report, a review thereof reflects that the student also made progress based on the similar rating scales used in the RFTS-LC educational plan. While the RFTS-LC educational plan and the RFTS-LC speech-language progress report contain information on approximately six of the same short-term goals (with independent ratings), the speech-language progress report includes additional short-term goals targeted during the 2022-23 school year (compare Parent Ex. DD at pp. 3-6, with Parent Ex. FF at pp. 1-5). With respect to the speech-language progress report, approximately three of the short-term goals were not yet targeted across all four quarters, and approximately nine short-term goals were only targeted during the fourth quarter (see generally Parent Ex. FF). For those short-term goals targeted solely in the fourth quarter, the student showed varied ratings of progress, including having met some of those goals (id.).
With regard to the RFTS-LC OT progress report, a review thereof reflects that the student also made progress based on the similar rating scales used in the RFTS-LC educational plan. Similar to the duplicative short-term goals reported on in the RFTS-LC educational plan and the RFTS-LC speech-language progress report, the RFTS-LC educational plan also contains information on approximately nine of the same short-term goals (with independent ratings) as found in the RFTS-LC OT progress report, with the RFTS-LC OT progress report including several additional short-term goals targeted during the 2022-23 school year (compare Parent Ex. DD at pp. 7-10, with Parent Ex. EE at pp. 1-3). In contrast to the RFTS-LC speech-language progress report, the RFTS-LC OT progress report indicates that all of the student's short-term goals were targeted throughout the 2022-23 school year (compare Parent Ex. EE, with Parent Ex. FF). Overall, the student's progress report shows improvement on all of the short-term goals for OT during the 2022-23 school year (see generally Parent Ex. EE).
Overall, based on the evidence in the hearing record—notably, that the student made progress appropriate in light of his circumstances even if he did not receive all of the speech-language therapy and OT services as set forth in the parent's contract with RFTS-LD—there is no basis to disturb the IHO's finding that RFTS-LC was an appropriate unilateral placement for the student for the 2022-23 school year and the district's arguments must be dismissed.
D. Equitable Considerations
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).
Initially, it must be noted that, while the IHO pointed out that equitable considerations primarily hinged on whether the parent cooperated with the CSE process, the IHO did not appear to weigh this as a factor in reaching the determination to reduce any tuition awarded by one-third of the total costs of RFTS-LC (IHO Decision at pp. 15-16).[18] Instead, the IHO focused on whether the RFTS-LC costs were excessive or unreasonable, and appeared to rely on her perception of the overall cost of "almost $ 400,000.00" as a basis for finding it excessive and pointing to additional factors, such as the billing and bookkeeping practices utilized by the nonpublic school id. at p. 16). The IHO also briefly noted her concerns with the parent's contract with RFTS-LD (id.).
The parent argues that, contrary to the IHO's determination that the RFTS-LC tuition costs were excessive or unreasonable, the evidence in the hearing record supports a finding that she was entitled to receive full reimbursement or funding for the costs of the student's attendance at RFTS-LC during the 2022-23 school year.
The district argues that the evidence supports a one-third reduction in any tuition reimbursement or funding awarded, consistent with the IHO's decision. In support of this assertion, the district contends that the RFTS-LC administrator's testimony was vague and not credible, and failed to adequately explain the fee-for-service model and the hourly rates charged for services. The district also asserts that the administrator failed to explain what portion of the hourly rates were paid to instructors.
1.Excessive Costs
Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]). An IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100). More specifically, while parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement 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 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). Accordingly, while a parent should not be denied reimbursement for an appropriate program due to the fact that the program provides benefits in addition to those required for the student to receive educational benefits, a reduction from full reimbursement may be considered where a unilateral placement provides services beyond those required to address a student's educational needs (L.K., 674 Fed. App'x at 101; see C.B. v. Garden Grove Unified Sch. Dist., 635 F. 3d 1155, 1160 [9th Cir. 2011] [indicating that "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced"]; Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 [5th Cir. 1986] ["The Burlington rule is not so narrow as to permit reimbursement only when the [unilateral] placement chosen by the parent is found to be the exact proper placement required under the Act. Conversely, when [the student] was at the [unilateral placement], he may have received more 'benefit' than the EAHCA [the predecessor statute to the IDEA] requires"]).
Generally speaking, an excessive cost argument focuses on whether the rate charged for service was reasonable and requires, at a minimum, evidence of not only the rate charged by the unilateral placement, but evidence of reasonable market rates for the same or similar services. In this instance, the hearing record includes evidence of only those rates charged by RFTS-LD, as set forth in the contract addendum, and is otherwise devoid of any evidence regarding reasonable market rates (see Parent Ex. K at p. 5; see generally Tr. pp. 1-639; Parent Exs. A-M; O; Q-R; T-U; W-X; AA-FF; HH-LL; Dist. Exs. 1; 3-3A; 4-10; 16-19; 22; 24; 26-31; IHO Exs. I-II). Here, rather than proffering evidence of reasonable market rates, the district focuses primarily on the RFTS-LD administrator's testimony elicited, in part, through cross-examination at the impartial hearing as a basis to conclude that the RFTS-LD rates were excessive or unreasonable. For example, the district argues that RFTS-LD rates could not be justified by the student's needs or the instruction provided, and the administrator failed to sufficiently explain the fee-for-service model. In addition, the district contends that the administrator could not provide a "clear accounting" of how RFTS-LD determined hourly rates, "except to vaguely proclaim in conclusory fashion that 'rates charged for each service provided [we]re based on market rates charged by programs offering similar services.'" Generally speaking, absent sufficient evidence of reasonable market rates, the district's arguments must fail.
In this matter, the parent's contract with RFTS-LD clearly sets forth the fee-for-service model, as well as the rates charged for each service in the student's services plan for the 2022-23 school year (see Parent Ex. K at pp. 1-5). In addition, the contract includes a "Special Education and Related Services Rate Sheet," which identifies various services available from RFTS-LD, as well as the rates charged for those services (id. at p. 6). In addition, the RFTS-LD director submitted an affidavit identifying the services delivered to the student during the 2022-23 school year and the costs for those services, with the total amount requested in the amount of $397,914.20 (Parent Ex. LL)
Nevertheless, although the district's arguments do not support finding that the cost of the services provided by RFTS-LD were excessive, it is also worth noting that, while the evidence in the hearing record does not support finding that the fees charged by RFTS-LD were excessive, likewise, there is also insufficient evidence in the hearing record to determine that the costs being charged by RFTS-LD were reasonable. In this instance, although the matter could be remanded for further development of the hearing record on this issue (see 8 NYCRR 279.10[c] [providing that a State Review Officer is authorized to remand matters back to an IHO to take additional evidence or make additional findings]), neither party has requested a remand or attempted to introduce additional evidence to show an appropriate rate for the services rendered. Accordingly, based on the limited hearing record before me, the evidence does not support the IHO's reduction in the costs of tuition awarded and the district will be ordered to fund the student's services actually rendered to the student at the rates set by the RFTS-LD contract addendum for the 2022-23 school year and as shown in the affidavit of the RFTS-LD director.
2.Financial Obligation
In Burlington, the Court stated that "[p]arents who unilaterally withdraw their child from the public school and thereafter seek tuition reimbursement for the[ir] child's private placement do so at their own peril," because they bear the financial risk, both as to tuition and legal expense, and the burden of demonstrating the appropriateness of their relief (471 U.S. at 373-74). Congress thereafter took action to emphasize the need for parents to be invested in the process of developing a public school placement for eligible students with disabilities by placing limitations on private school reimbursements under the IDEA (20 U.S.C. § 1412[a][10][iii]). This statutory construct is a significant deterrent to false or speculative claims (see Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 543 [2007] [Scalia, J., dissenting] [noting that "actions seeking reimbursement are less likely to be frivolous, since not many parents will be willing to lay out the money for private education without some solid reason to believe the FAPE was inadequate"]).
When the element of financial risk is removed entirely and the financial risk is borne entirely by unregulated private schools or agencies that have indirectly entered the fray in a very palpable way in anticipation of obtaining direct funding from the district, it has practical effects because parents begin seeking the best private placements possible with little consideration given to what the child needs for an appropriate placement as opposed to "everything that might be thought desirable by 'loving parents.'" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]). As the First Circuit Court of Appeals noted, "[t]his financial risk is a sufficient deterrent to a hasty or ill-considered transfer" to private schooling without the consent of the school district (Town of Burlington v. Dep't of Educ. for Com. of Mass., 736 F.2d 773, 798 [1st Cir. 1984], aff'd, Burlington, 471 U.S. 359, 374 [1985] [noting the parents' risk when seeking reimbursement]; see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247[2009] [citing criteria for tuition reimbursement, as well as the requirement of parents' financial risk, as factors that keep "the incidence of private-school placement at public expense . . . quite small"]). Further, proof of an actual financial risk being taken by parents tends to support a view that the costs of the contracted for program are reasonable, at least absent contrary evidence in the hearing record.
Regarding proof of financial risk, the Second Circuit has held that some blanks that the parties did not fill in in a written agreement would not render an entire contract void and indicated that in the case before it that "the contract's essential terms—namely, the educational services to be provided and the amount of tuition—were plainly set out in the written agreement, and we cannot agree that the contract, read as a whole, is so vague or indefinite as to make it unenforceable as a matter of law" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 458 [2d Cir. 2014]). In New York, a party may agree to be bound to a contract even where a material term is left open but "there must be sufficient evidence that both parties intended that arrangement" and an objective means for supplying the missing terms (Express Indus. & Terminal Corp. v. N.Y. State Dep't of Transp., 93 N.Y.2d 584, 590 [1999]; 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91 [1991]).
As part of equitable considerations, the IHO noted concerns about the enforceability of the parent's contract with RFTS-LD. Specifically, the IHO indicated that it failed to include specific weekly charges for services and used vague terms, such as "'up to' for each service" (IHO Decision at p. 16). The IHO also found that it was not credible the parent could have believed herself to be responsible for the entire payment of the RFTS-LD tuition given the parent's income (id.). While the IHO's finding on this point could lean toward questioning whether the costs of the contracted for program are reasonable, as discussed above, there is no alternative to the parent's contract with RFTS-LD to look at for what would be a reasonable cost. Accordingly, without more, the IHO's finding does not present a sufficient basis for reducing the costs called for under the terms of the contract.
Additionally, a review of the contract reflects that, for ABA services, ABA supervision, and related services supervision, the parent's contract with RFTS-LD did not mandate a specific amount of hours for each service under the student's service plan, but instead, called for what appears to be a maximum amount of services for each—i.e., "Up to 31 Hours per week" or "Up to 10 Hours per week" (see Parent Ex. K at p. 5). As has already been noted, the student did not receive more than the maximum amount of ABA services allowed by the contract during the 2022-23 school year, and a cursory review of the administrator's testimony reflects that the student also did not receive more than the maximum amount of related services supervision during the 2022-23 school year (compare Parent Ex. K at p. 5, with Parent Ex. LL ¶ 5 [a]-[l]). Accordingly, the contract on its own does not present as an unenforceable obligation and there is insufficient basis in the hearing record to find that the parent is not financially obligated to RFTS-LD for services delivered during the 2022-23 school year.
E. Pendency
As a final point on appeal, the parent contends that the IHO should have ordered the district to fully fund the costs of the student's tuition at RFTS-LC under pendency, regardless of whether RFTS-LC was found to be appropriate and regardless of any reductions made to a tuition reimbursement award.
The district contends that the parent rejected pendency because the student received services from RFTS-LD, rather than from RFTS-LC, and therefore, the district is not required to fund a different program from the program previously agreed upon by the parties. In support of these arguments, the district notes that, based on the pendency implementation form, the student's pendency consisted of a 12-month program provided by RFTS-LC using a tuition-based model and cites to the pendency form and the May 2022 IHO decision that formed the basis for the student's pendency placement. The district argues parenthetically that the May 2022 IHO decision made "several references to payment of [the s]tudent's 'tuition' for a classroom-based program rather than just services." The district also argues that throughout these proceedings, the parent repeatedly indicated that the student received services from RFTS-LD, and the student's program described in the May 2022 IHO decision "differ[ed] significantly from the fee-based services that [the s]tudent now receives." As a result, the district contends that the parent rejected 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]).[19] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]). A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]). The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).
Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]). Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]). Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).
Evidence in the hearing record indicates that the parties executed a pendency implementation form on or about August 18, 2022 (see Pendency Impl. Form at pp. 1-2). According to the form, the parties agreed that an unappealed IHO decision, dated May 31, 2022—which dealt with the student's attendance at Reach for the Stars during the 2020-21 school year—formed the basis for the student's pendency placement and moreover, that pendency consisted of the district's payment—either as reimbursement or directly to the school—of tuition at "Reach for the Stars Learning Center" for a 12-month program (id. at p. 1).[20]
Evidence in the hearing record indicates further that, for the 2022-23 school year, the parent contracted with RFTS-LD for the student's special education program, which was to be provided at RFTS-LC (see Parent Ex. K at p. 1). At the impartial hearing, the RFTS-LC administrator testified that, since his employment began at RFTS-LD in May 2022, RFTS-LD had "always been a fee-for-service model," however, he noted that RFTS-LD had been formed "sometime in the year of 2021" (Tr. pp. 397-98).[21]
In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (see Ventura de Paulino, 959 F.3d at 532-36). The Court further stated that "what the parent cannot do is determine that the child's pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay-put provision to force the school district to pay for the new school's services on a pendency basis" (id. at 534). The Court found that when a parent does so they "effectively 'seek a "veto" over school choice rather than "input"—a power the IDEA clearly does not grant them'"(id.).
In reviewing the Second Circuit's decision in Ventura de Paulino, one of the reasons the Court found that the district was authorized to decide how (and where) the students’ pendency services were to be provided, instead of the parents, was the potential difference in the costs of educational services between schools (Ventura de Paulino, 959 F.3d at 533-35). The Court specifically noted that "[d]ramatically different costs may be presented when parents unilaterally choose to enroll their child in a new school" and that the IDEA did not to permit parents of students with disabilities to utilize the stay-put provision to frustrate State fiscal policies (id. at p. 535).
In this instance, although the hearing record does not include a specific cost for what was presumably a tuition-based program for the student's attendance at RFTS-LC during the 2020-21 school year, when the parent contracted with RFTS-LD for the 2022-23 school year, at what is also presumably at a substantially higher cost than the student's prior program delivered by RFTS-LC, the parent rejected the pendency placement at RFTS-LC and the program provided by RFTS-LD was not required to be funded through pendency.
VII. Conclusion
Based on the above, the hearing record does not support the IHO's determination that the district offered the student a FAPE for the 2022-23 school year. Additionally, the hearing record supports finding that the services actually delivered to the student at RTFS-LC constituted an appropriate unilateral placement, and similarly, the evidence supports finding that equitable considerations do not warrant reduction or denial of the parents' request for district funding of the costs of the student's attendance at RFTS-LC, with services provided by RFTS-LD. Additionally, as explained above, the parent's arguments related to pendency are unavailing; however, the parent is entitled to funding for the costs of the student's educational programming during the 2022-23 school year on the merits.
I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations above.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the IHO's decision, dated February 16, 2025, is modified by reversing those portions of the decision which found that the district offered the student a FAPE for the 2022-23 school year and that equitable considerations warranted a reduction in the contracted for costs of the student's tuition,
IT IS FURTHER ORDERED that the district shall directly pay or reimburse the parents for the costs of the services the student received at RFTS-LC during the 2022-23 school year pursuant to the terms of the parent's contract with RFTS-LD and as set forth in the affidavit of the RFTS-LD director in the total amount of $397,914.20 for services delivered during the 2022-23 school year.
Dated: May 7, 2026
Steven Krolak
STATE REVIEW OFFICER
Footnotes
[1] During the 2019-20 school year when the student was attending RFTS-LC, he was "placed in a small class" with a 6:1+1 student-to-teacher ratio, and received speech-language therapy services, occupational therapy (OT) services, and the services of a 1:1 "paraprofessional for behavioral support" (Dist. Ex. 8 at p. 1).
[2] It was noted in the February 2022 IEP that the student should have, chronologically, "be[en] attending an [eigh]th grade class" at that time (Parent Ex. E at p. 2). It was also noted that the student was attending a "private [s]pecial [e]ducation school" in an ungraded classroom (id.).
[3] The student's eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[4] In reaching the decision to recommend that the student participate in alternate assessments for ELA and mathematics, the February 2022 CSE denoted in the IEP that the student had "a severe cognitive disability, significant deficits in communication [and] language, and significant deficits in adaptive behavior"; he required "a highly specialized educational program that facilitate[d] the acquisition, application and transfer of skills across natural environments (home, school, community and/or workplace)"; and the student required "educational support systems such as but not limited to, assistive technology, personal care services, health/medical services, or behavioral intervention" (Parent Ex. E at p. 22). The February 2022 CSE also indicated in the IEP that the student had a "diagnosis of Autism and present[ed] with significant communication/language and deficits in adaptive behavior that preclude[d] him from partaking in NYS assessments" (id.).
[5] The hearing record does not include a prior written notice related to the amendment made to the student's IEP in June 2022 (see generally Tr. pp. 1-639; Parent Exs. A-M; O; Q-R; T-U; W-X; AA-FF; HH-LL; Dist. Exs. 1; 3-3A; 4-10; 16-19; 22; 24; 26-31; IHO Exs. I-II).
[6] Evidence in the hearing record indicates that the student began attending RFTS-LC for the 2022-23 school year on July 6, 2022 (see Parent Exs. M ¶ 3; CC).
[7] The Commissioner of Education has not approved RFTS-LC or RFTS-LD as a school or a limited liability company or an agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[8] The parent testified that, when she signed the enrollment agreement on September 12, 2022, she "understood that RFTS-LD was now administering the program at RFTS," and she agreed to the provision of "daily ABA classroom instruction with ABA supervision and OT and [speech-language therapy] five times per week" (Parent Ex. II ¶ 15).
[9] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[10] To be clear, the IHO properly found that the parent failed to raise the student's peanut and/or nut allergy in the due process complaint notice as an issue to be resolved at the impartial hearing or as an issue upon which to conclude that the district failed to offer the student a FAPE for the 2022-23 school year (compare IHO Decision at p. 11, with Parent Ex. A). However, 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 Dep't of Educ. (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]). An independent review of the entire hearing record reveals that the district did not open the door to the issue of the student's peanut and/or nut allergy under the holding in M.H. and, thus, while the parent argues that the February 2022 IEP was not appropriate because it did not include a way to handle the student's peanut and/or nut allergy, this issue is not properly before me on appeal and will not be further addressed.
[11] In support of its argument, the district cites to the IEP coordinator's testimony about the availability of BIPs at the assigned public school site, and how a BIP would be put into place, regardless of whether the student's IEP included a BIP (see Answer & Cr. App. ¶ 11; Tr. pp. 102-03). However, as the parent correctly asserts, the IEP coordinator's testimony about the ability to develop a BIP at the assigned public school site or programmatic aspects of the recommended program that were not reflected in the IEP is impermissibly retrospective (R.E., 694 F.3d at 184-88). That is, the Second Circuit squarely held that the question of whether an IEP was reasonably calculated to enable the student to receive education benefits "must be evaluated prospectively as of the time [the IEP] was created" (id. [explaining that with the exception of amendments made during the resolution period, the adequacy of an IEP must be examined prospectively as of the time of its drafting and that "retrospective testimony" regarding services not listed in the IEP may not be considered]). As a result, reliance on this testimony is immaterial with regard to whether the February 2022 IEP was appropriate absent a plan to address the student's behavioral needs.
[12] Although the hearing record includes a copy of a BIP developed for the student at RFTS-LC, which indicates that it was "last updated" in December 2022, the evidence in the hearing record does not indicate whether the February 2022 CSE had a BIP from RFTS-LC available at the time of the meeting.
[13] The parent also asserts that the February 2022 IEP failed to include 45-minute related services sessions for both OT and speech-language therapy services despite information presented at the CSE meeting indicating that the student required longer duration of services. Overall, a review of the hearing record reveals that the district did not address this issue through the district school psychologist's testimony or through other documentary evidence (see Tr. pp. 134-41; Dist. Exs. 1; 3-10; 16-19; 22; 24; 26-31). Significantly, the February 2022 CSE meeting minutes did not reflect any discussion of related services, either the frequencies or durations, other than noting the recommendation for five 30-minute sessions of speech-language therapy services and OT services and the RFTS-LC staff noting that the student required longer sessions for related services (see generally Dist. Ex. 3). In addition, neither the February 2022 IEP nor the June 2022 prior written notice reflects whether the CSE considered, but rejected, a request for longer related services sessions (see Parent Exs. E at pp. 26-27; F at pp. 1-2). While standing alone, this may not have resulted in a finding that the district did not offer the student a FAPE, it provides additional support for finding that the February 2022 IEP was not sufficiently supportive.
[14] According to the RFTS-LD administrator, his references to RFTS was a joint reference to both RFTS-LC and RFTS-LD; however, he testified that he was employed by RFTS-LD (Parent Ex. KK ¶ 1).
[15] The student's schedule also reflects one 45-minute session per week of ABA supervision services; however, costs related to ABA supervision services were later completely removed from the tuition charges for the 2022-23 school year in this matter because it was determined that the individual delivering ABA supervision was not fully licensed to provide ABA supervision services (see Tr. pp. 470-73). The administrator testified that, based on RFTS "billing policy" and "industry standards," any instances of "cotreatment" were omitted from the tuition totals (Tr. pp. 410-12; Dist. Exs. 30-31; Parent Ex. LL). In addition, he explained that the tuition total in his revised affidavit reflected the "raw data minus the supervision and the cotreatments," which had been removed as charges (Tr. pp. 410-11; compare Dist. Ex. 31 ¶ 10, with Dist. Ex. 30 ¶ 6, and Parent Ex. LL ¶¶ 5-6). He later testified that, with regard to ABA supervision services, he did not bill for them because he discovered that a "specific supervisor was at the last stages of obtaining the licensure and the credentials required to be a supervisor," and after contacting counsel for advice on this issue, the administrator made the decision to not bill for the services until it was clarified (Tr. p. 470-71). The administrator also testified that those supervision charges were changed to reflect "direct treatment" because the individual had worked with the student (Tr. pp. 472-73).
[16] To be clear, the parent's contract with RFTS-LD did not require a minimum amount of ABA services per week, but rather, provided that the student would receive up to 31 hours per week of ABA services (see Parent Ex. K at p. 5). If the student had received 31 hours per week of ABA services for the 12-month school year (i.e., 42 weeks), the student would have received a total of 1302 hours of ABA services—an amount exceeding the total amount provided by RFTS-LC during the 2022-23 school year of 1267.67 hours.
[17] It is well settled that a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364). However, while not dispositive, a finding of progress is, nevertheless, a relevant factor to be considered in determining whether a unilateral placement is appropriate (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).
[18] To be clear, the evidence in the hearing record demonstrates that the parent cooperated in the CSE process, she timely notified the district of her concerns with the student's February 2022 IEP, as well as her intentions to unilaterally place the student at RFTS-LC, and she did not otherwise act unreasonably (see generally Tr. pp. 1-639; Parent Exs. A-M; O; Q-R; T-U; W-X; AA-FF; HH-LL; Dist. Exs. 1; 3-3A; 4-10; 16-19; 22; 24; 26-31; IHO Exs. I-II).
[19] In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (see Ventura de Paulino, 959 F.3d at 532-36).
[20] In the May 2022 IHO decision, the IHO did not describe whether Reach for the Stars operated as a tuition-based or fee-for-services program for the 2020-21 school year at issue; moreover, the IHO did not identify any specific costs associated with the student's program delivered by Reach for the Stars during the 2020-21 school year within the decision (see generally Parent Ex. C).
[21] In deciding a pendency placement and payment issue involving RFTS-LD and RFTS-LC, the court found that "[p]rior to the 2021-22 school year, RFTS operated pursuant to a tuition-based program, providing services through RFTS-[LC]" (C.S. v. New York City Dep't of Educ., 2025 WL 3224989, at *2 [S.D.N.Y. Nov. 19, 2025] [finding that the "change in corporate structure from RFTS-LC to RFTS-LD constitute[d] the type of unilateral modification that the Second Circuit has determined warrant[ed] denial of [the parents'] demand for reimbursement" pursuant to pendency]).