STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-199
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 Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Gail Eckstein, 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) to the extent it denied, in part, her request that respondent (the district) fund her son's private services delivered by Yeled v'Yalda (Yeled) for the 2023-24 school year. The district cross-appeals from that portion of the IHO's decision which found that the parent met her burden to prove that the unilaterally obtained services were appropriate. The appeal must be sustained. The cross-appeal must be dismissed.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
A committee on preschool special education (CPSE) convened on September 8, 2022, determined that the student was eligible for special education as a preschool student with a disability, and developed an individualized education program (IEP) for the student (Parent Ex. B at p. 1). The September 2022 CPSE recommended that the student attend a 12-month program in an early childhood program selected by the parent consisting of seven hours per week of small group (2:1) special education itinerant teacher (SEIT) services, delivered in 30-minute sessions, with three 30-minute sessions per week of individual speech-language therapy and two 30-minute sessions per week of individual occupational therapy (OT) (id. at pp. 1, 19-20).[1] The September 2022 CPSE also recommended a 1:1 paraprofessional (id. at pp. 1, 19). The September 2022 CSE indicated that the student required a behavioral intervention plan (BIP) and attached a July 19, 2022 BIP to the IEP (id. at pp. 7, 23-31).
Next, a CSE convened on May 24, 2023 to conduct the student's "Turning 5" review (Parent Exs. E at pp. 1, 13; K ¶ 4). The May 2023 CSE determined that the student was eligible for special education as a student with a speech or language impairment and developed an IESP for the student, which included recommendations that the student receive five periods per week of direct group special education teacher support services (SETSS), with one 30-minute session per week of individual OT, one 30-minute session per week of group OT, one 30-minute session per week of individual speech-language therapy, two 30-minute sessions per week of group speech-language therapy, and one 30-minute session per week of group counseling for the 10-month school year (Parent Ex. E at pp. 10-11).[2] The May 2023 IESP reflected that the student would be parentally placed in a nonpublic school (id. at p. 13).
On May 16, 2023, the parent completed a district form stating she had placed the student in a nonpublic school at her own expense and wanted the student's public special education services to continue for the 2023-24 school year (Parent Ex. D at p. 2).
On July 14, 2023, the parent entered into a contract agreement with Yeled for the provision of "Special Education and/or Related Services" to the student for the 2023-24 school year (see Parent Ex. H).[3]
On September 4, 2023, the parent notified the district of her disagreement with the recommendations contained in the May 2023 IESP and of her intent to unilaterally obtain from private providers the services previously recommended for the student by the CPSE and seek district funding for the costs thereof (see Parent Ex. C).
Beginning on September 14, 2023, Yeled provided the student with seven hours per week of special education teacher services (Parent Exs. J ¶ 10; K ¶ 11).[4] On October 11, 2023, Yeled began providing the student with three 30-minute sessions per week of speech-language therapy and two 30-minute sessions per week of OT (Parent Exs. J ¶¶ 12, 14; K ¶¶ 11-12).[5]
A. Due Process Complaint Notice
In a due process complaint notice dated July 12, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see generally Parent Ex. A). The parent asserted that pendency was in the 12-month September 2022 IEP which included seven hours per week of group SEIT, three 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual OT, and an 1:1 paraprofessional for the student (Parent Ex. A at p. 2). The parent argued that, although the May 2023 IESP documented the student's needs, the CSE reduced the recommendations from seven periods of SEIT (2:1) to five periods per week of group SETSS (id. at pp. 2-3). Additionally, the parent argued that the CSE improperly removed the recommendations for paraprofessional services and 12-month programming (id. at p. 3). Further, the parent claimed that the student "require[d] either a continuation of the broader SEIT program or an appropriate placement in a hybrid special education/general education program that should address [the student's] special education needs in a mainstream environment" (id.). The parent stated that SETSS are a "limited service" that do not address organizational skills, executive functioning, or social skills, which are areas in which the student required support to meet his goals (id.). As relief, the parent requested funding for the provision of special education and related services recommended in the September 2022 IEP by private providers for the 2023-24 school year.[6] The parent reserved her right to request "compensatory SETSS and related services" for those services not provided to the student during the 2023-24 school year (id.).
B. Impartial Hearing Officer Decision
After a prehearing conference on September 10, 2024 (Pre-Hr'g Conf. Tr. pp. 1-3), an impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on December 3, 2024 (Tr. pp. 1-72).[7] In a decision dated February 26, 2025, the IHO found that the district failed to offer the student a FAPE and the parent was entitled to an award of district funding for her unilaterally obtained services (IHO Decision at pp. 3, 6-7).[8]
The IHO stated that the parties stipulated that the Burlington/Carter analysis should apply and that disputed issues included the "suitability of the providers" and the reimbursement rate for the unilaterally obtained services (IHO Decision at p. 6). According to the IHO the "[p]arties stipulated that the provider conducted therapy" (id.). Further, the IHO stated that the special education services were appropriate for the student to access his education and that the providers were certified (id. at p. 7). The IHO recognized that the parent requested the rate of $195 per hour for group therapy and $250 per hour "for other services" and that the district did not present contrary evidence of a market rate (id. at pp. 6-7). The IHO found that equitable considerations weighed in favor of the parent's requested relief, noting that the district failed to provide the student with a FAPE, the parent found a provider, and the "parent could not be faulted for not doing [the district's] job as well as possible for not finding a lower cost provider" (id.). Accordingly, the IHO held that the district must reimburse the providers at their agreed upon rates (id.).
Ultimately, the IHO ordered the district to "fund the cost of the OT Service Provider" for the 2023-24 school year at a rate of $250 per hour for OT and speech-language therapy and at the rate of $195 per hour of SEIT/SETSS (IHO Decision at p. 8).
IV. Appeal for State-Level Review
The parent appeals alleging that the IHO's order failed to include funding for SETSS and speech-language therapy, which was a "clear scrivener's error." The parent requests that the decision be corrected to order funding for the SETSS, speech-language therapy, and OT services at each of the providers' rates.
In an answer and cross-appeal, the district generally denied the material allegations contained in the request for review and argues that there was not a typographical error in the decision with respect to relief not granted.[9] As for its cross-appeal, the district argues that the IHO failed to consider the appropriateness of the unilaterally obtained services under a Burlington/Carter standard and improperly focused on the "reimbursement rate" and "suitability of the providers" to determine if the parent was entitled to her requested relief. The district asserts that the parent failed to sustain her burden to prove that the special education and related services were appropriate to meet the student's needs. Next, the district argues that there was not a typographical error in the decision with respect to relief not granted. The parent did not submit an answer to the district's cross-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]).[10] "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.).[11] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. Unilaterally Obtained Services
Here, the district does not appeal the IHO's findings that it failed to offer the student a FAPE for the 2023-24 school year, or that equitable considerations weighed in favor of the parent's request for relief. Accordingly, these determinations have 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]).
Turning to the district's cross-appeal, while the IHO did not offer an in depth analysis, review of the decision reflects that, contrary to the district's position, the IHO applied the Burlington/Carter analysis in this matter, finding that the parties stipulated that this was the correct approach and that the parent met her burden to prove that the unilaterally obtained services were appropriate (see IHO Decision at pp. 6-7).
On that point, the student in this matter 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 offer an appropriate program s under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from Yeled 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 offer appropriate special education can be made to pay for appropriate 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]).[12] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive. A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203-04 [1982]; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1. Student's Needs
While the student's needs are not in dispute, a review thereof will provide the background necessary to evaluate the appropriateness of the services provided to the student by Yeled during the 2023-24 school year.
The May 2023 IESP related that, according to an April 2023 social history update, the student was "shy when he d[id] not know people" (Parent Ex. E at p. 1). He knew "some of his letters and shapes," knew colors, and counted to 10 (id.). According to the IESP, a classroom observation from May 2023 noted that the student did not participate when the class was singing songs or engaged in other activities and did not always respond to his SEIT when asked questions (id.). The May 2023 IESP noted that "during the preschool assessment," the student identified "most" colors, numbers, and primary shapes, counted to 20, counted items presented in an array, and was learning "alphabetical letters" in Hebrew (id. at p. 2). He traced along a line and identified position and direction (id.).
According to the May 2023 IESP a teacher interview was conducted in May 2023 wherein the teacher stated that the student did not always answer when an adult spoke to him but could follow along during story time (Parent Ex. E at p. 2). The teacher also shared that, although the student enjoyed listening to stories, he did not answer comprehension questions (id.). The student preferred independent play and needed redirection when transitioning to a new task (id.). His attention was better if he liked the subject, and he required redirection if he did not (id.). When the student was frustrated, he needed to be supported by staff to help him express himself (id.). At the time of the May 2023 CSE meeting, the teacher believed the student was "mainstream ready" because he knew his shapes and colors and had made progress in all areas (id.). The May 2023 IESP stated that, according to a December 2022 SEIT report, the student could sit through circle and story times, identify a variety of labels with better accuracy, and complete a "lunch helper" job, and was making progress following prompts for timed play during centers (id.).
Regarding the student's academics, the May 2023 IESP reported that the student's reading readiness and decoding skills limited his ability to recognize rhyming words (Parent Ex. E at p. 2). His letter-sound correspondence was inconsistent, he could not find the letter card that matched the sound his teacher said, could not identify the initial sound in the name of objects shown, and "seem[ed] to mishear" or confuse similar sounds (id.). The student had difficulty properly placing and grasping writing utensils, which resulted in difficulty tracing shapes (id.). He recognized the letters of his name but could not write his name (id.).
In the area of receptive language, the student understood most "why" and "when" questions and answered with prompting (Parent Ex. E at pp. 2-3). He understood expanded sentences and more complex language, time and sequence concepts, answered basic before/after questions, and sequenced simple picture cards (id. at p. 3). In terms of his receptive language, the student was "proficient" with naming categories of objects with visual prompts (id.). He answered most "wh" questions and his utterance length had increased (id.). The student had begun to vocalize during play and would "occasionally" initiate conversation or share something with his speech-language pathologist (id.). He demonstrated strength in identifying categories of objects, asking for help, and asking simple questions but did not always use words to request and instead relied on using gestures (id.). According to the May 2023 IESP, the student exhibited delayed oral motor skills which caused him to have an "open mouth posture" at rest, leading to drooling (id.). His tongue also protruded from his mouth and he needed "constant reminders to retract his tongue" (id.). The May 2023 IESP additionally identified the student's need for prompts, sentence starters, visual cues and pictures, concrete language, exposure to a language-rich environment, additional time to process and respond, encouragement to participate, praise for trying, repetition and review of concepts, and frequent checks for understanding (id. at p. 4).
The May 2023 IESP reported that, in terms of the student's social/emotional development, he preferred to play independently and, during independent play, "[did] what he want[ed] instead of what [wa]s asked of him" (Parent Ex. E at p. 4). The student needed redirection during transitions, and, if the task was something he enjoyed, he would cooperate and participate (id.). He needed adult assistance to express himself when frustrated (id.). The May 2023 IESP noted that, according to the student's teacher, he was "capable but often seem[ed] like he [was] spacing out" (id.). He "screamed what he wanted to say" (id.). Despite the routines in place, the student had difficulty getting on the correct school bus at the end of the school day and often left the class line and ran onto the wrong bus (id. at p. 5). The IESP related that, although the student could be self-directed, he had made progress during the school year (id.). Additionally, the IESP noted that counseling was recommended to support the student's behavior, adding that behaviors could be addressed by the classroom teacher in collaboration with the speech-language pathologist, occupational therapist, and counselor (id.). The IESP further noted that, "to improve his academics," the student needed "clear explanations for what [wa]s happening and why," a collaborative plan to help the student demonstrate improved compliance, visuals, the use of if-then statements, teaching of social skills by modeling, discussing appropriate behavior in an easily understandable manner, and the use of strategic seating to reduce elopement from the classroom (id.). The IESP also noted that, during the CSE meeting, the parent expressed that the student had difficulty interacting with peers (id.).
Regarding the student's physical development, the May 2023 IESP related that the student was "proficient with applying appropriate pencil pressure," could complete a coloring activity, and maintain adequate sitting posture while performing fine motor activities (Parent Ex. E at pp. 5-6). He demonstrated delays in the use of a dynamic tripod grasp for writing and coloring, cutting age-appropriate shapes/lines, motor planning, and following directions to complete a two-step motor task (id. at p. 6). The student had difficulty maneuvering through complex obstacle courses, judging distance and size, and imitating movements; however, the IESP reported that he had age-appropriate gross motor skills (id.).
The May 2023 CSE also identified strategies to support the student's management needs that included encouragement, positive reinforcement for good choices, visual aids, verbal prompts and reminders, modeling and re-teaching, tasks broken down into smaller steps, "If-Then statements," explanation, and use of visual schedules (Parent Ex. E at p. 6). According to the May 2023 IESP, although the student "demonstrate[d] many kindergarten academic readiness skills," he was not able to do so "consistently" (id.). The May 2023 IESP reported that the student's "challenges in expressive, receptive, and pragmatic language skills" impacted his "overall classroom functioning" (id.). As a result of the student's delays in fine motor skills, he had difficulty completing "age appropriate classroom tasks" (id.). The May 2023 IESP also reported that the student was self-directed and had difficulty "consistently adhering to class routines and teacher requests" (id.).
2. Services from Yeled
A review of the hearing record shows that, for the 2023-24 school year, Yeled provided the student with seven hours per week of special education teacher services beginning in September 2023, two 30-minute sessions per week of individual OT from October through December 2023 and May through June 2024, and three 30-minute sessions per week of individual speech-language therapy beginning in October 2023 (Tr. p. 42; Parent Exs. F at pp. 1, 4, 7; J ¶¶ 10, 12, 14; K ¶¶ 11-12). The Yeled clinical supervisor named two special education teachers, a speech-language pathologist, and two occupational therapists and the hearing record indicates that these providers were registered or certified by the State in their respective fields (Parent Exs. G; J ¶¶ 11, 13, 15).
The Yeled clinical supervisor testified that services were provided at the student's nonpublic school (Tr. p. 43; Parent Ex. J ¶¶ 6, 10). Special education teacher services were delivered through both push-in and pull-out sessions, with speech-language therapy and OT provided "mostly" through pull out therapy sessions (Tr. pp. 44-45; see Parent Ex. J ¶ 19). According to the clinical supervisor, Yeled administered a HELP Strands assessment at the beginning of the school year, with follow up assessments three times over the course of the school year using the YVY SMART assessment developed by Yeled (Tr. pp. 45-46; Parent Ex. F at p. 10). The clinical supervisor further testified that, in addition to the special education teacher and related service providers delivering 1:1 instruction/services to the student, the providers also prepared for sessions, developed goals, wrote progress reports, and met with the student's teachers and parent (Parent Ex. J ¶ 16).
The Yeled clinical supervisor testified that the special education teachers, speech-language pathologist, and occupational therapist "did collaborate a lot" and "everybody was working as a team and all working on the same skills" (Tr. p. 47). For example, according to the clinical supervisor, the occupational therapist and the special education teachers "were both" working on pencil grasp, coloring in a line, correcting reversed number writing, hand-eye coordination, and "a lot of . . . fine motor skills" (id.). The clinical supervisor testified that the student "would chew on his clothes a lot and fidget" and the "provider had things in the classroom for him to use, to give him that sensory input" (Tr. p. 48).
A May 2024 progress report related that the student's special education teacher services focused on reading readiness, particularly in recognizing letter sounds using multisensory approaches such as "associating sounds with visuals and incorporating movement to enhance learning" (Parent Ex. F at p. 2). The special education teachers used rhyming books, rhyming word games, and rhyming word lists to address the student's difficulty grasping rhyming words (id.). The student had also had difficulty retelling stories and sequencing, which his special education teachers addressed through use of props, drawing pictures, and verbalizing the main events of a story with prompting (id.). In math, the student had difficulty with rote counting and understanding numerical concepts (id.). The special education teachers used prompts and manipulatives related to numbers, objects, and patterns, as well as counting games that involved everyday objects or items in his surroundings (id.). The teachers also used visual aids such as number charts and flashcards to reinforce the student's number recognition and size comparison activities that involved sorting and comparing objects based on size to support the student in arranging and recognizing objects by size (id.). The teachers addressed the student's fine motor skills through activities to strengthen hand muscles, such as using play dough, squeezing a stress ball, and using tweezers to pick up small objects (id.). To improve the student's hand-eye coordination, the teachers used activities like connect-the-dots, mazes, threading beads, and using highlighters to mark boundaries, and visual cues like dotted lines, or colored guides to help the student stay in the lines when writing or coloring (id.).
The progress report further noted the student's difficulty with expressing his feelings and emotions, noting that he often resorted to hitting or pushing during playtime, shut down when upset, and could not communicate his feelings (Parent Ex. F at p. 2). The student was also "influenced by the behavior of his peers" and struggled to make independent choices (id.). To address these issues the special education teachers used social stories and modeling and encouraged alternative ways to communicate such as "using words and nonverbal cues" (id.). The teachers also used role playing to practice responses in different social situations and reinforced positive behaviors through praise and rewards (id. at p. 3). According to the progress report, the special education teachers addressed the student's challenges with assertiveness, communication, and articulation through supported group discussions, a voice volume chart, and activities focused on pitch, volume, and pronunciation (id.).
The Yeled clinical supervisor testified that the student's special education teachers worked with the student on prediction skills, inferencing and "being able to do more complicated 'wh' questions" using hands-on, multisensory techniques, breaking down lessons and review (Tr. p. 46). During mealtimes, they would "practice all the skills that they were working on" using picture cards (id.). According to the clinical supervisor, the special education teachers also worked on patterning, number recognition, and counting with one-to-one correspondence (Tr. p. 47).
The May 2024 special education teacher service progress report related that the student had made progress in naming letters, identifying some letter sounds in his name, answering simple "wh" questions based on a story read or heard, and rote counting to 13 (Parent Ex. F at p. 1).[13] He had also made progress copying and tracing basic shapes, letters, and numbers, cutting simple shapes, and completing puzzles up to 10 pieces, attending to complete a simple task, following classroom routines, sitting quietly and attending during circle time, identifying photographs of familiar objects, sharing experiences with peers, and expressing his wants and needs (id.). The Yeled clinical supervisor also testified to the student's progress with the special education teacher services provided, reporting that "at the beginning of the year" the student did not know letter sounds, or have letter sound connections, could not rhyme, did not know the difference between real life and fiction, and had difficulty identifying the main idea in a story and "sometimes" in pictures (Tr. p. 46). In math, the student could only count to seven at the beginning of the school year, and "[forgot] some of it," had difficulty arranging objects by size because he could not sort, and he struggled to add or subtract up to five (Tr. p. 47). According to the Yeled clinical supervisor, the student made progress in both math and reading, and some of his math skills were "on grade level" (Tr. p. 50).
Regarding the student's speech-language therapy, the May 2024 speech-language therapy progress report noted that the student had delays in expressive and receptive language, articulation, and oral-motor skills (Parent Ex. F at p. 4). In the area of receptive language, the student had difficulty identifying negatives in pictures, understanding picture analogies, understanding spatial concepts, and understanding "why" and "when" questions (id.). The student's difficulties with expressive language affected his ability to answer questions, say what he was thinking, describe things, and relate stories, personal experiences, and activities (id. at p. 5). His articulation errors made it difficult for others to understand what he was saying, and he had difficulty self-correcting articulation errors (Tr. p. 48; Parent Ex. F at p. 4). The student's oral motor delays also impacted his ability to maintain the position of his tongue in his mouth and keep his mouth closed (Tr. p. 48; Parent Ex. F at p. 4). To address the student's needs, the student's speech-language pathologist used articulation drills, picture cards, games, books, manipulatives, puzzles, picture cards, language games, verbal and visual prompts, and facial cueing (Parent Ex. F at p. 5). The Yeled clinical supervisor testified that the student's answers were "very delayed" and "[i]t always took him longer than everyone else to answer," so "there was a lot of practice with word retrieval" (Tr. p. 48).
The May 2024 speech-language therapy report also reflected the student's progress, noting that the student could identify actions in pictures, and understand basic pronouns, and had improvement in identifying the function of objects shown in pictures (Parent Ex. F at p. 4). He was able to ask for help and sequence things in the correct order (id.).
The June 2024 OT report provided additional information regarding the student's motor needs during the 2023-24 school year, noting that the student exhibited delays in gross motor, sensory processing, and fine motor coordination (Parent Ex. F at p. 7). He had difficulty participating in gross motor activities for "more than a few minutes," had an "immature" pincer grasp during fine motor activities, such as grasping and placing small objects, and needed prompts to use or improve his tripod grasp when writing (id.). The student had trouble staying in his seat without fidgeting, chewed on his clothes, and "constantly" adjusted his seating position or stood up during desktop activities (id.).
The June 2024 OT report did not speak to the strategies used by the occupational therapist and noted that "limit[ed] progress" was gained due to "recent therapist start date" (Parent Ex. F at p. 7).[14] However, the Yeled supervisor testified about how the student's motor skills and writing skills were addressed by both the special education teachers and occupational therapist as described above (Tr. pp. 47-48).
An undated annual review IESP report (IESP report) attached to the May 2024 Yeled progress reports noted that the student exhibited delays in attention span, speech and language skills, fine motor skills and motor planning, gross motor skills, and sensory processing (Parent Ex. F at pp. 10-12). The IESP report stated that the student was "generally happy and generally well-behaved" (id.). According to the IESP report, as mentioned above, a YVY SMART assessment tool was administered to the student which found that the student was not able to write his name, letters, numbers, and shapes without guidance and 1:1 direction (id. at p. 10). He followed his peers with respect to both good and bad behaviors (id.). The student had not yet mastered reading comprehension, story retelling, or sequencing (id.).
The foregoing demonstrates that, contrary to the district's assertion that the special education teacher services, OT and speech-language therapy reports were "lacking in detail" and only "allow[ed] for a small snapshot in time for the entire school year," the evidence in the hearing record sufficiently described the services and the manner in which they were specially designed to address the student's unique needs.[15] While the evidence of the student's progress is not dispositive, in this instance it lends further support to a finding that the services provided by Yeled were appropriate for the student for the 2023-24 school year. Moreover, the hearing record contains some evidence that the special education teachers and related service providers met and coordinated with the student's classroom teacher (Parent Exs. F at pp. 5, 7, 10; J ¶ 16). Considering the totality of the circumstances, I find that the parent met her burden to prove the appropriateness of the services provided to the student by Yeled during the 2023-24 school year.
B. Relief
Having found that the parent met her burden to prove that the unilaterally obtained services were appropriate and that the district did not challenge the IHO's determination that equitable considerations weighed in favor of the parent's requested relief, the remaining issue pertains to the IHO's specific award. In particular, the parent argues that the IHO's decision contained a typographical error in that it failed to order district funding of the special education teacher or speech-language therapy services in the ordering clause but otherwise reflected the IHO's intent to award such services (see IHO Decision at p. 8). The parent is correct that there is no indication in the IHO's decision that the IHO intended to deny any part of the parent's requested relief. Further, contrary to the district's position, I do not find that further corroborating proof from the IHO is required to show that the IHO made an error, "such as an email or other correspondence back from the IHO" under these circumstances. Rather, the evidence in the hearing record is sufficient to demonstrate on the merits that the parent is entitled to relief in the form of district funding of the services provided to the student by Yeled during the 2023-24 school year at the rates stated in the parent's contract with Yeled.
VII. Conclusion
As set forth above, the evidence in the hearing record supports the IHO's determination that the parent sustained her burden to prove that the special education services provided by Yeled were appropriate for the student for the 2023-24 school year. As the IHO's other determinations are final and binding, the parent is entitled to the relief sought in this matter and the IHO's order shall be modified to reflect an award of district funding for all services delivered to the student by Yeled during the 2023-24 school year.
THE APPEAL IS SUSTAINED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the IHO decision dated February 26, 2025, is modified to provide that the district shall fund the costs of up to seven hours per week of special education teacher services at the rate of $198 per hour and up to two 30-minute sessions per week of OT and up to three 30-minute sessions per week of speech-language therapy at the rate of $250 per hour upon submission of invoices for services actually rendered to the student by Yeled during the 2023-24 school year.
Footnotes
[1] State law defines SEIT services (or, as referenced in State regulation, "Special Education Itinerant Services" [SEIS]) as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "[SEIS] for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available athttps://www.nysed.gov/special-education/special-education-itinerant-services-preschool-children-disabilities). A list of New York State approved special education programs, including SEIS programs, can be accessed at https://www.nysed.gov/special-education/approved-preschool-special-education-programs. SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii]; see Educ. Law § 4410[1][k]).
[2] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[3] Yeled 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).
[4] At times in the hearing record, the special education teacher services provided by Yeled are interchangeably referred to as either SEIT services, SETSS, special education services, or special education teacher services. The term SETSS is not defined in the State continuum of special education services (see NYCRR 200.6), and the manner in which those services are treated in a particular case is often in the eye of the beholder. As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district. For purposes of this decision, unless otherwise relevant to the context, the services will be referred to as special education teacher services.
[5] According to the parent, Yeled provided the student with OT from October 11 through December 5, 2023, and then from May 7 through June 30, 2024 (Parent Exs. J ¶ 14; K ¶ 12).
[6] In a due process response, the district generally denied the material allegations contained in the due process complaint notice, asserted certain affirmative defenses, and provided a supplemental notice which contained the recommendations from the May 2023 IESP (see Dist. Response to Due Process Compl. Not.).
[7] The transcripts of the prehearing conference and the impartial hearing are separately paginated with some overlapping pagination (compare Pre-Hr'g. Conf. Tr. pp. 1-3, with Tr. pp. 1-72). For purposes of this decision, all citations to a transcript from this point forward are to the transcript of the impartial hearing held on December 3, 2024.
[8] The IHO's decision is not paginated. For the purposes of this decision, the pages will be cited by reference to their consecutive pagination with the cover page as page one (see IHO Decision at pp. 1-12).
[9] In connection with its cross-appeal, the district concedes that it did not serve a notice of intention to cross-appeal upon the parent but argues that the lack of notice was not prejudicial, and the cross-appeal should be considered. Though the undersigned will not reject the timely cross-appeal because the lack of a notice of intention to cross-appeal, the district is reminded to comply with the requirements established by the relevant practice regulation, and a continued failure to do so may also result in a rejection of future pleadings (see 8 NYCRR 279.2).
[10] 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]).
[11] 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.
[12] 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 Enhanced (Educ. Law § 4404[1][c]).
[13] It is well settled that, while 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]), 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).
[14] According to the Yeled clinical supervisor, the student received OT from October 11, 2023 through December 5, 2023, and May 7, 2024 through June 30, 2024 (Parent Ex. J ¶ 14). Although not fatal in this case, there is no explanation in the hearing record regarding why there was a lapse in OT services.
[15] Contrary to the district's contention, the parent was not required to present formal assessments or baseline information for measuring the student's progress (see 34 CFR 300.303[b][1]-[2]; 8 NYCRR 200.4[b][4]; R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *13 [S.D.N.Y. Sept. 27, 2013] [stating that nothing in the IDEA or its State counterpart "requires that an IEP contain 'baseline levels of functioning' from which progress can be measured"]; A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208, 214 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate although the private school's assessments and reports were alleged to be incomplete or inaccurate, as the fault for such inaccuracy or incomplete assessment of the student's needs lied with the district]; Application of a Student with a Disability, Appeal No. 18-049 [stating that "it was the district's obligation to evaluate the student and present its view of his needs at the impartial hearing"]).