STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-193
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:
Martin Kehoe & Associates, PC, attorneys for petitioner, by Martin J. Kehoe III, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Lindsay R. VanFleet, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's private services delivered by ALL SETSS INC. (All SETSS) for the 2024-25 school year. The district cross-appeals from the IHO's refusal to find a lack of subject matter jurisdiction to review the parent's claims, and from that portion of the IHO's decision which found the parent's private services were appropriate. The appeal must be dismissed. The cross-appeal must be sustained in part.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case will not be recited in detail. Moreover, the evidence in the hearing record concerning the student's educational history is sparse.[1]
Briefly, a CSE convened on April 28, 2022, and developed an IESP for the student with a projected implementation date of September 1, 2022 (Parent Ex. D at pp. 1, 6, 8). Finding the student eligible for special education and related services as a student with a speech or language impairment, the April 2022 CSE recommended that the student receive 10 periods per week of direct group special education teacher support services (SETSS), two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of speech-language therapy in a group, two 30-minute sessions per week of individual occupational therapy (OT), and one 30-minute session per week of counseling services in a group (id. at pp. 1, 6).[2], [3]
On May 6, 2024, the parent signed a district form requesting that the district provide special education services to the student for the 2024-25 school year (see Parent Ex. E).
On September 2, 2024, the parent electronically signed an agreement with All SETSS for the provision of SETSS and speech-language therapy services for the 2024-25 school year (Parent Ex. F). The agreement indicated that "if the [district] d[id] not pay A[ll SETSS] for the provision of th[o]se services [the parent] agree[d] to pay the fees associated with the provision of services" (id.). The agreement also stated that All SETSS would provide the student with services from September 3, 2024 through June 30, 2025 at a rate of $195 per hour for SETSS and at a rate of $250 per hour for speech-language therapy (id.).[4] For the 2024-25 school year, the student attended a nonpublic school and began receiving SETSS and speech-language therapy from All SETSS on September 3, 2024, which was to continue until June 30, 2025 (Parent Exs. F; G). The hearing record included a December 25, 2024, speech-language therapy report and a December 31, 2024 educational report (Parent Ex. H at pp. 1-3; K at pp. 1-2).
A. Due Process Complaint Notice
In a due process complaint notice dated November 13, 2024, the parent, through a lay advocate, alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (see Parent Ex. A). The parent contended that the student' pendency services were based on an unappealed March 12, 2024 IHO decision. The parent further asserted that the district failed to develop an IESP for the student for the 2024-25 school year, and also failed to implement the services recommended in the April 2022 IESP during the same school year (id. at pp. 1, 2). In addition, the parent challenged the procedural and substantive appropriateness of the April 2022 IESP (id. at pp. 2-4). As relief, the parent requested that the district fund the parent's privately obtained SETSS and speech-language therapy services at the "enhanced rate" (id. at p. 4).
B. Impartial Hearing Officer Decision
On January 21, 2025, an impartial hearing convened before an IHO from the Office of Administrative Trials and Hearings (OATH) (Tr. pp. 12-39).[5] The parent offered multiple exhibits, all of which were received into evidence (Tr. pp. 15-18; Parent Exs. A-M). The parent's exhibits included direct testimony by affidavit from the program director of All SETSS, who appeared for cross-examination during the hearing (Tr. pp. 26-33; Parent Ex. M).[6] The district presented no testimony or exhibits (Tr. pp. 16, 36). During the impartial hearing, the district made an oral motion to dismiss the parent's due process complaint for lack of subject matter jurisdiction, which the IHO ultimately denied (Tr. pp. 19-20).
In a decision dated February 24, 2025, the IHO found that the district failed to meet its burden that it offered the student a FAPE on an equitable basis for the 2024-25 school year (IHO Decision at pp. 3, 7). Further, the IHO found that neither party "contest[ed] the 2022 IESP, [and] there [wa]s no need to determine whether the 2022 IESP recommend[ed] an appropriate level of programming for [the s]tudent for the" 2024-25 school year (id.).[7] The IHO also determined that the April 2022 IESP "constituted [the student's] pendency" services, and ordered the district to provide the services recommended therein (id. at p. 5).
Regarding the appropriateness of the unilaterally obtained services, the IHO found that both the SETTS and speech-language therapy services met the student's individual needs and facilitated his academic progress for the 2024-25 school year (IHO Decision at pp. 8-10). In reaching this determination, the IHO considered progress reports, as well as the affidavit and testimony of the program director for All SETSS (id. at pp. 9-10). Although the IHO noted that the student received all of his SETSS and speech-language therapy sessions individually despite the April 2022 IESP's recommendation for group sessions, the IHO found that such discrepancies were due to the parent having to locate the services herself (id.). Ultimately, the IHO found that the parent met her burden of demonstrating that the services provided by All SETSS were appropriate.
Turning to equitable considerations, the IHO found that because the district failed to present any evidence regarding an appropriate market rate for SETSS and speech-language therapy services, the IHO was therefore constrained to find that All SETSS's rates were not unreasonable (IHO Decision at p. 11). However, the IHO also found that the parent's failure to provide the district with 10-day written notice of her intention to obtain private service providers for the 2024-25 school year warranted a 15 percent deduction in the amount of the parent's requested rates (id.).The IHO ordered the district to reimburse or directly fund 10 periods per week of SETSS at a rate not to exceed $166 per hour, and one and one-half hours of speech-language therapy services per week at a rate not to exceed $213 per hour, upon proof of delivery of services by a properly credentialed provider and a valid contract for the 10-month, 2024-25 school year (id. at p. 12).
IV. Appeal for State-Level Review
The parent appeals and asserts that the IHO erred in reducing her award of funding by 15 percent based on equitable considerations. The parent alleges that the IHO did not set forth the reasons and factual basis for his determinations, that his decision is internally inconsistent, and that the reduction of reimbursement is contrary to the facts in the record. Next, the parent asserts that the IHO abused his discretion in reducing the parent's requested rate, and argues that equitable considerations favored the parent because she cooperated throughout the decision-making process and did nothing to impede the district from developing an appropriate program. As relief, the parent requests an award of full funding of the providers enhanced rates and reversal of the IHO's determination that she failed to offer evidence that she provided the district with timely notice of her intention to unilaterally obtain special education services for the student.
In an answer and cross-appeal, the district denies the parent's allegations and asserts that the parent failed to demonstrate the appropriateness of her unilaterally obtained SETTS and speech-language therapy services. The district further contends that the IHO erred in finding that the unilaterally obtained services were appropriate because the hearing record included general information about the SETSS and related services, and that there was no evidence of how the sessions were individualized to meet the student's unique needs. The district also argues that the progress reports offered into evidence provided generalized ideas of what the SETSS and speech-language therapy services entailed but did not include any information related to the student's progress. Next, the district contends that if the parent's unilaterally obtained services are found to be appropriate, the IHO did not err in reducing the amount of funding based on equitable considerations. The district asserts that the IHO's deduction of 15 percent should be affirmed. Lastly, the district contends that the IHO lacked subject matter jurisdiction to review the parent's claims and that the parent's claims should be dismissed. As relief, the district requests dismissal of the parent's appeal.
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[8] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[9] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. Subject Matter Jurisdiction
Initially, it is necessary to address the issue of subject matter jurisdiction raised by the district in its answer and cross-appeal. Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]). The district argues on appeal that there is no federal right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice regarding IESP implementation. Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.
In numerous recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of the Dep't of Educ., Appeal No. 25-293; Application of a Student with a Disability, Appeal No. 25-127; Application of a Student with a Disability, Appeal No. 25-106; Application of a Student with a Disability, Appeal No. 25-098; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No. 25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512 Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).
Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]). However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]). Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.
Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.
Separate from the services plan envisioned under the IDEA, the New York Education Law affords parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).[10]
Concerning students who attend nonpublic schools, Education Law § 3602-c provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]). It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).
Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint notice may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]" (Educ. Law § 4404[1][a]; see 20 U.S.C. § 1415[b][6]). SROs have in the past, taking into account the text and legislative history of Education Law § 3602-c, concluded that the legislature has not eliminated a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[11] In addition, the New York Court of Appeals has explained that students authorized to receive dual enrollment services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.[12]
After legislative amendments took effect in 2007, the State Education Department issued guidance further interpreting Education Law § 3602-c to provide that "[a] parent of a student who is a [New York State] resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location" ("Chapter 378 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3206-c," Attachment 1 at p. 5, VESID Mem. [Sept. 2007] [emphasis added], https://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).
The number of disputes involving the dual enrollment statute statewide remained very small until only a handful of years ago. In the last several years, the number of due process filings dramatically increased to tens of thousands per year within certain regions of this school district. As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[13]
In its answer and cross-appeal, the district contends that, under the Education Law, there is not, and never has been, a right to bring a complaint for the implementation of IESP claims or enhanced rate services. Consistent in part with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:
parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services. Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment
("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[14] However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis and has since lapsed.
Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or whether certain types of relief available under § 4404 are repudiated by the due process provisions of § 3602-c. Instead, case law has carved out a narrow exception that provides that exhaustion is not required if the "plaintiff's claim is limited to the allegation that 'a school has failed to implement services that were specified or otherwise clearly stated in an IEP'" (Levine v. Greece Cent. Sch. Dist., 353 F. App'x 461, 465 [2d Cir. 2009]; quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 [2d Cir. 2002] see Intravaia v. Rocky Point Union Free Sch. Dist., 919 F. Supp. 2d 285, 294 [E.D.N.Y. 2013]).
More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]). However, the Court did not address whether parents must use the ERES procedure or whether they may also utilize the administrative due process procedures. Instead, the Court denied petitioners' request for a preliminary injunction as moot because they sought to enjoin a State regulation that had lapsed (Agudath Israel of America, No. 909589-24, slip op. at 6). The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at 7). The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" but did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id. at p. 7).[15] Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).
Thus, case law has established that within the district, parents may use the ERES procedures and seek judicial review regarding the lack of implementation of the services in a child's IESP, particularly where the due process complaint is limited to that issue and the cost of such services; however, the Court declined to hold that the dual enrollment statute precludes parents from using the due process procedures in Education Law § 4404 to resolve the dispute set forth in this case. Accordingly, the district's cross-appeal seeking a dismissal on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be denied.
B. Unilaterally Obtained Services
The parties dispute whether the IHO correctly determined that the parent's unilaterally obtained SETSS and speech-language therapy services were appropriate. However, the district has not cross-appealed from the IHO's determination that it did not offer a FAPE to the student for the 2024-25 school year. Accordingly, this finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement. Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2024-25 school year and, as a self-help remedy, she unilaterally obtained private services for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof. Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).
The parent's request for district funding of privately obtained services must be assessed under this framework. Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[16] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Turning to a review of the appropriateness of the unilaterally obtained services, the federal standard for adjudicating these types of disputes is instructive. A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1.Student's Needs
While the student's needs are not in dispute, a brief discussion thereof provides context for the issue to be resolved on appeal, namely, whether the parent's unilaterally obtained SETSS and speech-language therapy services were appropriate to meet the student's needs. As noted above, the hearing record includes limited information regarding the student's educational history. The student's April 2022 IESP, developed as part of the district's "Turning Five" process, provides the only information available regarding the student's educational needs prior to the 2024-25 school year (Parent Ex. D). According to the April 2022 IESP, the student's teacher reported that the student's speech difficulties impacted his functioning as well as his ability to process and understand information (Parent Ex. D at p. 2). The student had difficulty identifying and recalling "letter-sounds" and he needed information to be repeated or broken down for some topics. (id.). In addition to teacher comments, the April 2022 IESP reflected the contents of a SEIT report that indicated the student had deficient cognitive skills, which limited his ability to fully participate and engage with the class (id.). He struggled to present ideas and answer questions independently, even with pre-teaching and when provided the answers (id.). Based on the SEIT report the April 2022 IESP indicated that the student's attention span was deficient, affecting his ability to follow directions and complete tasks independently (id.). He struggled with multistep directions and required repeated instructions and cues, which hindered the student's ability to follow classroom routines independently (id. at pp. 2-3). According to the SEIT report incorporated in the IESP, the student also had weaknesses in basic concepts, which affected his ability to sequence pictures, retell stories correctly, and understand the concept of one-to-one correspondence (id. at p. 2). He also had delays in reading and decoding skills that hindered his ability to remember letter names and sounds correctly, and he had difficulty with understanding rhyming words (id. at pp. 2-3).According to the IESP, the student often needed cues and prompts to give him the confidence to answer appropriately (id. at p. 3).
With regard to the student's speech and language needs, information from an undated speech report reflected in the April 2022 IESP noted that the student was friendly and outgoing, and at the time presented with an articulation disorder characterized by multiple phonological processes (e.g., velar fronting, stopping of continuants, devoicing, final consonant deletion, cluster simplification and gliding of liquids), that affected his overall intelligibility across all positions at the single words, simple phrase, sentence, and conversational discourse levels (Parent Ex. D at p. 3). Additionally, the student presented with low facial tone; overall lingual, labial, mandibular and buccal weakness; and limited lingual range of motion, as he often used head rotations, head tilts, mandibular assistance, and gross body movements during lingual range of motion activities (id.). He also had difficulty with overall saliva control and awareness, as he often required cues to swallow and to increase overall awareness of pooling of saliva (id.). According to the IESP, based on therapist report the student also presented with difficulties with overall receptive language skills and he needed support in following multistep directives and understanding spatial and directional concepts (id.). In addition, the student presented with delayed early skills/basic concepts including difficulty with number concepts; weight/volume concepts; location/spatial concepts top/bottom, under/over, below/above; first, second, last; beside/next to; volume; distance; quality concepts dry/wet; and directional concepts (id.). Based on the speech report, the IESP noted the student had difficulty with word classes including finding, classifying, excluding and adding onto categories and identifying differences from a visual field of four (id.).[17] Additionally, the student had difficulty with identification of functions of object and labeling and identifying attributes (id.). The IESP reflected information from the speech report that indicated the student had difficulty with overall transitions and maintaining attention to structured tasks (id.). The IESP noted a behavioral modification chart with positive reinforcement had been implemented with positive results (id.).
Socially, the April 2022 IESP indicated the student had difficulty playing with peers and benefited from adult supervision when playing with others (Parent Ex. D at p. 4). According to the IESP, the student had difficulty initiating play with his peers, did not pick up on social cues, and could be rigid at times (id.). The IESP noted the student preferred to play by himself (id.).
In terms of physical development, the April 2022 IESP reflected the narrative of an OT report that indicated the student demonstrated low muscle tone, upper extremity weakness, and underdeveloped core strength (Parent Ex. D at p. 4). The IESP noted the student's fine motor skills and pre-writing skills were delayed due to his poor dexterity (id.). It also noted the student had decreased strength in his intrinsic hand muscles (id.). According to the IESP the student presented with sensory sensitivities and had difficulty focusing and attending (id.).
While the April 2022 IESP provided information regarding the student's educational needs prior to the 2024-25 school year, the hearing record includes an educational report and speech-language report, both dated December 2024, that provided information regarding the student's functioning during the 2024-25 school year. The December 2024 All SETSS educational report provided information regarding the student's needs during the 2024-25 school year (Parent Ex. H). According to the educational report, the student "face[d] significant challenges related to executive functioning, including a short attention span, difficulty transitioning between tasks, and struggles with organization" (Parent Ex. H at p. 1). Further, the report indicated the student "struggle[d] with social interactions, particularly eye contact, following conversations, and using an appropriate tone of voice" (id.). The student also behaved inappropriately a times, struggled with personal space, and had difficulty maintaining a conversation (id.). According to the report, the student had difficulty managing his frustration and disappointment independently and would shut down when faced with challenges (id. at p. 2). The student was often hesitant to initiate conversations of play and could become upset if a game or routine was altered (id. at p. 3).
With regard to academics, the educational progress report indicated the student demonstrated a solid understanding of basic math concepts and could rote count to 100, identify numbers 1-100, count up to 15 using 1:1 correspondence, add and subtract by twos up to 10 and complete simple alternating patterns (id.). The report characterized the student's ability to sequence and solve simple math problems as "developing" (id.). Turning to reading, the December 2024 educational report indicated the student's skills were at a beginning first grade level and noted that he had limited vocabulary but was familiar with several sight words (id.). According to the report, the student was able to recognize letters of the alphabet but struggled with the corresponding sounds and had difficulty naming words that started with specific sounds (id.). The report indicated the student could read simple, repetitive texts, with support and was able to respond to basic "wh" questions but found it difficult to retell stories in sequence, which affected his comprehension (id.).
The December 2024 educational report described the student's writing skills as "developing" and noted he had difficulty organizing his thoughts into cohesive sentences and that his handwriting was immature (Parent Ex. H at p. 2). The report indicated the student's writing lacked fluency and that his sentences frequently did not make sense (id.). In terms of language, the educational report stated the student faced challenges in both receptive and expressive language, had difficulty following multi-step directions even when the task was familiar, and his ability to engage in meaningful conversation was hindered by his limited vocabulary and poor articulation (id. at pp. 1, 2).
According to the December 2024 All SETSS speech-language report, the student presented with moderate to severe expressive and receptive language delays as well as significant pragmatic deficits (Parent Ex. K at p. 1). The report indicated the student's expressive delays were characterized by difficulty retelling stories and information, finding solutions to problems, responding to "wh" questions during auditory presentation of stories, expressing his feeling/emotions and using correct syntactical units during sentence production (id.). In addition, the student had difficulty following directions, maintaining eye contact, selecting the most appropriate answer given pictures/cues, and sequencing pictures to tell a story (id.). With regard to expressive language the All SETSS report indicated the student's articulation skills were delayed including his use of phonological processes such as deaffrication, assimilation, and liquid gliding (id.). With regard to pragmatic language the report indicated the student had difficulty with perspective taking, turn taking, maintaining the topic within a conversation, interpreting nonverbal cues, awareness of personal space, and understanding of cause/effect and action/consequence (id.).
2.SETSS from All SETSS
In the instant appeal, the parties dispute whether the IHO erred in determining that the parent demonstrated the appropriateness of the services provided to the student by All SETSS during the 2024-25 school year. The district contends that the parent did not meet her burden of proof as the record contains no information as to how the student made academic progress. Further, the district asserts the record contains only generalized statements about the student's progress that do not distinguish between the kinds of services that he was receiving.
The hearing record, while not robust regarding SETSS, does contain some evidence of the instructional strategies and materials the student's providers used during their sessions with the student for the 2024-25 school year. The December 31, 2024 educational report for SETSS was completed by the student's two SETSS providers, both of whom were State certified special education teachers (Parent Exs. H at p. 3; I at pp. 4-5). However, neither SETSS provider testified at the impartial hearing (see Tr. pp. 1-39). The December 2024 educational report described the student's academic, language, and social/emotional functioning and included goals for the student's 2024-25 school year (see Parent Ex. H). The goals aligned with the student's described needs and targeted his ability to complete alternating and repeating patterns and solve simple two-step addition and subtraction word problems within 10; improve sight word recognition and story recall and retell simple stories; write three-to-four word sentences to describe a picture and a brief personal narrative using correct capitalization, punctuation and spacing; follow two- to three-step directions and respond to "wh" questions using complete sentences; improve his ability cope with frustration and demonstrate increased flexibility when transitioning between tasks; and initiate play or conversation with a peer using appropriate greetings and topics and without becoming upset if a game is changed (id. at pp. 1-3). The educational report described the interventions used by the student's SETSS providers, noting that the student received individualized support in the classroom including 1:1 pre-teaching, review sessions, and modeling of skills (Parent Ex. H at p. 3). The report noted that the student benefitted from visual aids and manipulatives to engage with lessons as well as from redirection and prompting to stay focused and follow directions (id.). The report also noted that social stories and emotional regulation strategies were used to support the student's social/emotional development and the teachers also employed multi-sensory approaches and "specialized resources like "Social Thinking by Michelle Garcia, Everyday Speech, and Sara Ward's executive functioning program" (id.). The educational report stated that these strategies combined with tools like graphic organizers aimed to address the student's challenges and help him thrive both academically and socially (id.).
In her December 2024 direct testimony by affidavit, the All SETSS program director provided additional information regarding the instructional strategies used to address the student's needs (Parent Ex. M). With regard to executive functioning, the program director reported visual schedules and task breakdowns would help the student anticipate and prepare for transitions and indicated tasks would be "chunked into smaller, manageable steps, with frequent check-ins" (id. ¶ 30). The director noted that frequent redirection, verbal prompts, and check-ins would be used to keep the student on track and that visual timers would be employed to structure work periods and breaks (id.). Turning to math, the program director reported the student benefited from a multi-sensory approach that incorporated visual aids, manipulatives (counters and base-ten blocks), and hands-on activities to reinforce key concepts (id. ¶ 31). Next, the program director explained that in reading the student's learning was supported through phonics-based instruction and sight word practice, both of which were crucial for developing the student's reading fluency (id. ¶ 32). Other supports included the use of visual aids such as flashcards and letter tiles to help the student connect letters to sounds and blend sounds together, repetitive reading of simple texts to build confidence, and graphic organizers to assist with sequencing and story comprehension (id.). In terms of language development, the program director indicated the student received focused instruction in both receptive and expressive language skills and practiced following multi-step directions with visual and verbal cues and participated in sentence expansion exercises (id. ¶ 33). Lastly, in terms of social/emotional development the program director reported the student used social stories and role-playing activities to build his social skills and emotional regulation including helping the student understand social cues and developing coping strategies for managing frustration (id. ¶ 34). The student also practiced patience and flexibility through turn-taking games and structured group activities (id.).
According to the testimonial affidavit of the All SETSS's program director, at the time of her December 2024 affidavit the student had made steady progress in math (math concepts) reading (sight word recognition) and basic writing and was displaying more confidence as a student (Parent Ex. M ¶¶ 35, 38). She further reported that the student's language skills were growing but did not cite any specific examples (id.). While the program director testified at the impartial hearing that the providers maintained session notes that described details such as the student's attendance, frequency and duration of services, and specific methodology, none of these session notes were offered into evidence (see Tr. at p. 30).[18] The program director also testified that the student received his services at the nonpublic school, however the location within the nonpublic school was not identified and no further information relating the provision of SETSS to the student's performance in the general education classroom was included in the hearing record (Parent Ex. M ¶ 37)
3.Speech-Language Therapy Services from All SETSS
The parties further dispute the appropriateness of the speech-language therapy services provided to the student during the 2024-25 school year by All SETSS. As explained below, there is a dearth of information in the hearing record regarding the student's speech-language therapy sessions, the manner in which the service was individualized to meet the student's unique needs, and the methodologies used.
The hearing record includes the speech-language pathologist's registration certificate which showed her State license as a speech-language pathologist was up to date; that she was State certified as a teacher of the Speech and Hearing Handicapped, and that she had been awarded a certificate of clinical competence by the American Speech-Language-Hearing Association (ASHA) (Parent Ex. I at pp. 2-4). Review of the December 25, 2024 speech-language therapy report revealed the student received three 30-minute sessions per week of individual speech-language therapy (Parent Ex. K at p. 2; see Parent Ex. M ¶).[19] As detailed above, the report included a description of the student's speech-language deficits similar to the description included in the SETSS report (Parent Ex. K at p. 2). The December 2024 speech-language therapy report included goals that targeted the student's auditory skills and ability to follow multi-step directions and comprehend complex sentences; expressive language skills and the ability to use five-to-six word utterances for requesting, protesting, commenting, labeling, and retelling; pragmatic skills and the ability to initiate conversation with peers and regulate his vocal intensity and frequency; and cognitive skills by being able to problem solve, predict, compare, and sequence (id.).. The report included a section pertaining to "Progress in meeting previous goals; evaluation methods and criteria" which was left blank (id.).
The speech-language therapy progress report did not offer information about how the speech-language pathologist implemented the student's therapy, nor did it describe how strategies were used with the student to address his needs (see Parent Ex. K). It is also unclear if or when speech-language therapy was initiated with the student for 2024-25 school year (id.). Yet, the December 2024 speech-language therapy report recommended the student continue to receive speech-language therapy services three times per week to address his significant delays, help him master some of his basic age appropriate goals, and help facilitate success in a mainstream classroom (id. at p. 1).
Moreover, apart from testimony by affidavit indicating that the student received 1.5 hours per week of speech-language therapy services for the 2024-25 school year, the hearing record lacks sufficient evidence that the student actually received speech-language therapy services despite evidence that the student had demonstrable needs in those areas (Parent Ex. M ¶ 28). As with SETSS, the program director for All SETSS indicated that the provider would have kept session notes shedding light on the provision of the speech-language therapy services; however, those notes were not offered into evidence (see Tr. at p. 30).
As stated above, the Burlington/Carter framework requires the parent to prove that the services she unilaterally obtained for the student constituted specially designed instruction designed to address his unique educational needs. Specially designed instruction is defined as "adapting, as appropriate to the needs of an eligible student . . ., the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).
The student's educational programming consisted of enrollment at a general education nonpublic school along with the unilaterally obtained SETSS and speech-language therapy services from All SETSS, with the idea being that the specially designed instruction provided by All SETSS should support the student's access to the general education curriculum; however, my review of the evidence in the hearing record regarding SETSS and speech-language therapy services from All SETSS was lacking in adequate convincing detail regarding the delivery of appropriate services. The hearing record does not provide any evidence describing how the student's special education needs were met during the school day in his mainstream classroom when he was not receiving special education support. The hearing record is devoid of evidence regarding how SETSS and speech-language therapy would have been connected to and support the instruction provided by the nonpublic school during the 2024-25 school year. Yet, the December 2024 speech-language therapy report recommended the student continue to receive speech-language therapy services three times per week to address his significant delays, help him master some of his basic age appropriate goals, and help facilitate success in a mainstream classroom (Parent Ex. K at p. 1). Similarly, the December 2024 SETSS progress report included goals for the 2024-25 school year but did not include specific information regarding how those goals were to be achieved, and the testimony provided by the All SETSS's program director contained no specific descriptions of how the services addressed the student's needs (Parent Exs. H; M ¶¶ 30-35).
I also note that while the April 2022 IESP recommended that the student receive group speech-language therapy, OT, and counseling services, there was no evidence submitted at the impartial hearing to indicate how those needs were addressed when the parent opted to unilaterally obtain services without the consent of school district officials. Further, there was no testimony at the impartial hearing, either in person or by testimonial affidavit from the student's service providers regarding how the individual SETSS and speech-language therapy services were delivered. While progress reports from the student's providers offer limited insight into the student's progress, they do not describe how the services were provided, or how they addressed the student's unique educational needs.
Further absent from the hearing record is evidence related to the student's nonpublic general education classroom performance. Specifically, there was no evidence in the hearing record describing how the SETSS and speech-language therapy services provided by All SETSS enabled the student to access the general education curriculum or whether the SETSS delivered to him supported his classroom functioning.
Given that, by definition, specially designed instruction is the adaptation of instruction to allow a student to access a general education curriculum so that the student can meet the educational standards that apply to all students (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]), under the totality of the circumstances, the parent failed to prove that the SETSS and the speech-language therapy she unilaterally obtained from All SETSS was appropriate (see Application of a Student with a Disability, Appeal No. 25-104; Application of a Student with a Disability, Appeal No. 24-196).
Although the parent argues that she felt that she was required to seek out her own service providers in order to implement the recommended services in the April 2022 IESP, when doing so she must still come forward with evidence that describes the services and the delivery thereof. As noted above, the sole witness for the parent regarding the unilateral placement was the program director of All SETSS who had no direct knowledge of how the SETSS and speech-language therapy services were delivered to the student. Further, while the progress reports provided limited information, they did not adequately describe the specially designed instruction used during the delivery of these services to address the student's identified needs. The hearing record also did not show that the student received OT or counseling services, which were recommended by the April 2022 IESP to address his social difficulties, low muscle tone, and sensory sensitivities. Without evidence of these services and the , the parent has not convincingly demonstrated how the special education services she obtained met the student's unique needs under the totality of the circumstances. Without more substantial evidence of the delivery of the recommended services, I find that the parent has not convincingly shown how the unilaterally obtained services provided specially designed instruction to meet the student's unique needs (see L.K. v. Northeast Sch. Dist., 932 F.Supp. 2d 467, 491 [S.D.N.Y. 2013]).
As a final note, in reviewing the student's academic levels and information regarding the student's progress, it may be strongly advisable for the CSE to reconvene, if they have not already, to consider whether this student requires more intensive programming than what was recommended in the April 2022 IESP.
VII. Conclusion
In summary, the district did not cross-appeal from the IHO's determination that the student was not offered a FAPE for the 2024-25 school year; however, the parent failed to meet her burden to demonstrate the appropriateness of her unilaterally obtained services and therefore the necessary inquiry is at an end.
I have considered the parties' remaining contentions and find it unnecessary to address them in light of my determinations herein.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's decision, dated February 24, 2025, is modified by reversing those portions which found that the parent demonstrated the appropriateness of her unilaterally obtained services and awarded partial funding for the cost of the student's unilaterally obtained services for the 2024-25 school year.
Footnotes
[1] The hearing record indicates the student began receiving services from All SETSS during the 2023-24 school year (Tr. p. 28).
[2] The student's eligibility for special education services as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[3] SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist among parents, practitioners, and the district.
[4] All SETSS is a corporation and has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[5] A prehearing conference was held on December 13, 2024 (Tr. pp. 1-11).
[6] At the impartial hearing the program director testified that she was the owner of All SETSS (Tr. pp. 26-27).
[7] Although the parent asserted that the April 2022 IESP was procedurally and substantively inadequate in the due process complaint notice, during the prehearing conference, the parent agreed with the IHO that as relief, she was seeking implementation of the April 2022 IESP for the 12-month, 2024-25 school year at enhanced rates (Tr. p. 4).
[8] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[9] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[10] This provision is separate and distinct from the State's adoption of statutory language effectuating the federal requirement that the district of location "expend a proportionate amount of its federal funds made available under part B of the individuals with disabilities education act for the provision of services to students with disabilities attending such nonpublic schools" (Educ. Law § 3602-c[2-a]).
[11] In 2004, the State Legislature amended subdivision two of the Education Law § 3602-c, effective June 1, 2005 (see L. 2004, ch. 474 § 2 [Sept. 21, 2004]). Prior to such date, the subdivision read, in part, as follows:
Review of the recommendation of the committee on special education may be obtained by the parent, guardian or persons legally having custody of the pupil pursuant to the provisions of section forty-four hundred four of this chapter. Such school district shall contract with the school district in which the nonpublic school attended by the pupil is located, for the provision of services pursuant to this section. The failure or refusal of a board of education to provide such services in accordance with a proper request shall be reviewable only by the commissioner upon an appeal brought pursuant to the provisions of section three hundred ten of this chapter.
(L. 1990, ch. 53 § 49 [June 6, 1990] [emphasis added]). The amendments that took effect on June 1, 2005, removed the last sentence of subdivision two relating to the review of a board of education's failure or refusal to provide equitable services by the Commissioner (L. 2004, ch. 474 § 2). A review of the statute's history and the New York State Assembly Memorandum in Support of Legislation shows that the Legislature intended to remove the language that an appeal to the Commissioner of Education under Education Law § 310 was the exclusive vehicle for review of the refusal or failure of a board of education to provide services in accordance with Education Law § 3602-c, as the earlier sentence in subdivision two of such section authorized review by an SRO from a district CSE's determination in accordance with Education Law § 4404 (Sponsor's Memo., Bill Jacket, L. 2004, ch. 474). The Memorandum further explained:
The language providing for review of a school district's failure or refusal to provide services ONLY in an appeal to the Commissioner of Education under Education Law § 310 is unnecessary, confusing and in conflict with the earlier language authorizing review by a State review officer pursuant to § 4404(2) of the Education Law of a committee on special education's determination on review of a request for services by the parent of a nonpublic school student. At the time it was enacted, the Commissioner of Education conducted State-level review of an impartial hearing officer's decision under § 4404(2) of the Education Law in an appeal brought under § 310 of the Education Law, but that is no longer the case. The Commissioner has jurisdiction under Education Law § 310 to review the actions or omissions of school district officials generally, so it is unnecessary to provide for such review in § 3602-c and, now that a State review officer conducts reviews under section 4404 (2), it is misleading to have the statute assert that an appeal to the Commissioner is the exclusive remedy.
(Sponsor's Memo., Bill Jacket, L. 2004, ch. 474). Thus, the legislative amendments were intended to clarify the forum where disputes could be brought, not to eliminate a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404.
[12] The State Education Department treated dually enrolled students as attending other nonpublic institutions but also enrolled in the public school, provided parents requested services each year prior to June 1. For example:
Questions and Answers
1. What does "dual enrollment" mean?
Dual enrollment means that pupils enrolled in nonpublic schools may also be considered as enrolled in the public school in occupational education programs, gifted education programs, and programs for students with disabilities.
("Dual Enrollment Programs," available athttps://www.p12.nysed.gov/nonpub/handbookonservices/ dualenrollment.html).
[13] In May 2024, the State Education Department proposed amendments to 8 NYCRR 200.5 "to clarify that parents of students who are parentally placed in nonpublic schools do not have the right under Education Law § 3602-c to file a due process complaint regarding the implementation of services recommended on an IESP" (see "Proposed Amendment of Section 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Due Process Hearings," SED Mem. [May 2024], available athttps://www.regents.nysed.gov/sites/regents/files/524p12d2revised.pdf). Ultimately, however, the proposed regulation was not adopted. In July 2024, the Board of Regents adopted, by emergency rulemaking, an amendment of 8 NYCRR 200.5, which provides that a parent may not file a due process complaint notice in a dispute "over whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services" (8 NYCRR 200.5[i][1]); however enforcement was barred under a temporary restraining order (see Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, Order to Show Cause [Sup. Ct., Albany County, Oct. 4, 2024]), and the regulation has since lapsed.
[14] Neither the guidance nor the district indicated if this jurisdictional viewpoint was conveyed publicly or only privately to the district, when it was communicated, or to whom. There was no public expression of these points that the undersigned was aware of until policymakers began rulemaking activities in May 2024; however, as the number of allegations that the district's CSEs had not been convening and services were not being delivered began to mount, the district then began to respond with unsuccessful jurisdictional arguments to SROs, resulting in decisions which were subject to judicial review but went unchallenged (see e.g., Application of a Student with a Disability, Appeal No. 23-121; Application of a Student with a Disability, Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068). The guidance document is no longer available on the State's website; however, it has been added by the undersigned to the administrative hearing record.
[15] There is no definition of an "enhanced rate" much less an enhanced rate dispute, and many cases brought before the Office of State Review that one or both of the parties and/or the IHO characterize as an enhanced rate dispute involve a variety of alleged infractions by the district beyond the district's failure to implement services on an IESP, such as allegations that the district failed to convene a CSE to develop an IESP or that the IESP developed was not appropriate for the student.
[16] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the special education that the parent obtained from Tiferes Yisroel (Educ. Law § 4404[1][c]).
[17] It appears that the present levels of performance may include descriptions of the student's skills from two different time periods as in addition to the above the IESP stated that had shown improved lingual strength and a reduction in whole body movements, was more aware of saliva pooling and required decreased cuing to swallow, and was able to "classify word classes/categories and follow three step basic directives (Parent Ex. D at p. 2).
[18] The program director testified that All SETSS used the "Dragon" application to accurately record the times each student received services as well as to document detailed session notes (Parent Ex. M ¶ 21; Tr. p. 30). She stated that the session notes "provide[d] a clear description of the content and activities covered during each session, ensuring transparency and a thorough record of the services provided" (id.).
[19] The April 2022 IESP recommended that the student receive two 30-minute sessions per week of individual speech-language therapy and one 30-minute session per week of group speech-language therapy (Parent Ex. D at p. 6). However, testimony from the program director at All SETSS indicated that the agency does not offer group sessions (Tr. p. 31).