STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-240
Application of a STUDENT WITH A DISABILITY, by his parents, 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: Mayerson & Associates, attorneys for petitioners, by Gary S. Mayerson, Esq., John Hobbs, Esq., and Judith Kramer, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Muriel Goode-Trufant, 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. Petitioners (the parents) appeal from a portion of a decision of an impartial hearing officer (IHO) which denied their request to be reimbursed for their son's home-based services for the 2024-25 school year. The district cross-appeals from that portion of the IHO's decision which found that the parents established the appropriateness of the student's unilateral placement. The appeal must be sustained in part. The cross-appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). 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
At the time of the proceedings, the student presented with delays across all domains including: cognitive, language, academic, gross and fine motor, attention, activities of daily living (ADLs), and behavior (Parent Exs. F at pp. 7-12; M). He received diagnoses of autism, attention deficit hyperactivity disorder (ADHD) combined type, and specific learning disorder in reading (comprehension), writing, and mathematics (Parent Exs. F at pp. 12-13; X at p. 1; II ¶¶ 5-6). As a younger child, the student received services through the Early Intervention Program (EIP) including applied behavior analysis (ABA), physical therapy (PT), occupational therapy (OT), and speech-language therapy (Parent Exs. F at p. 4; II ¶¶ 3-6). The student then attended "a full-time ABA based instructional preschool" while also receiving related services and "private ABA" services (Parent Ex. F at p. 4). In fall 2022 the student began attending the Manhattan Children's Center (MCC) where he received full-time 1:1 ABA-based instruction, speech-language therapy and OT during the school day, and approximately 15-20 hours per week of "private ABA" services (id.). The student continued at MCC during the 2023-24 school year (id.).
A CSE convened on December 8, 2023, and, after finding the student eligible for special education as a student with autism, developed an IEP with a projected implementation date of December 20, 2023 (Dist. Ex. 1 at pp. 1, 48).[1] The December 2023 CSE recommended 12-month programming consisting of an 8:1+1 special class placement for 35 periods per week (id. at p. 43). It was also recommended that the student receive three 30-minute sessions per week of individual OT, two 30-minute sessions per week of individual PT, two 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of speech-language therapy in a group of two, and daily full-time individual paraprofessional services for behavioral support (id. at pp. 43-44). One monthly session of parent counseling and training was also recommended (id. at p. 43). The CSE further recommended that the student receive special transportation from the closest safe curb location to school (id. at p. 48). The IEP reflected that the parent or the student's current school indicated that the student "require[d] an ABA situation," because the student was "starting to self-injur[e]" (id. at p. 50).
The parents entered into an agreement with the MCC for the student's enrollment for the 2024-25 school year on March 28, 2024 (see generally, Parent Ex. H).[2] The agreement reflected that, should the student receive services outside of school, that the parents would make arrangements "to have regular and meaningful communication between any service provider and" MCC, and that school staff should be apprised of all services the student received so that MCC could "properly and accurately assess how such services interface with" MCC's program (id. at p. 2). According to the agreement, the providers would be encouraged to arrange visits to MCC in order to "collaborate and coordinate with [s]chool staff" (id.). MCC charged the parents $188,300 for the day programming according to the contract (id. at p. 1)
By an undated letter sent via email on April 2, 2024 to the district's CSE chairperson, the parents "reiterate[d]" their concerns with the information provided during the December 2023 CSE meeting (Parent Ex. D at pp. 1-2). The parents indicated that they forwarded several reports to the district in anticipation of the December 2023 CSE meeting, but that the district representative indicated that she did not receive the reports, and, despite forwarding the reports again, the reports were not reviewed during the meeting (id. at p. 2; see Parent Ex. JJ; Dist. Ex. 1 at p. 52). The parents indicated that they, along with the Director of Education from MCC, expressed concerns at the December 2023 CSE meeting with respect to an 8:1+1 special class placement for the student, as "all of [the student's] evaluative information show[ed] he need[ed] 1:1 instruction" (Parent Ex. D at p. 3). The parents also indicated that they expressed that two sessions of individual speech-language therapy were not sufficient, to which the CSE decided to include additional group sessions of speech-language therapy, which was still insufficient (id.). The parents also indicated that they visited the student's assigned school site on February 1, 2024, and informed the district of their opinion that it would have been difficult for the student to navigate the building, especially during emergencies (id.). Additionally, the parents expressed concerns that the student's location and staff may change for summer months, and contended that, after observing a "hectic" 8:1+1 class, the teaching staff ratio was not sufficient to properly manage the students (id.). The parents also expressed concerns with the qualifications of staff, and that the staff did not use ABA methodology (id. at p. 4). The parents informed the district that the student would continue to attend MCC for the remainder of the 2023-24 school year pursuant to a prior IHO decision, and that they were open to working with the district to find an appropriate placement for the 2024-25 school year (id.).
In a 10-day notice of unilateral placement dated June 14, 2024, sent via email to the district, the parents reiterated concerns to the district with respect to the December 2023 CSE recommendations and the assigned public school site, and noted that they did not receive a response to the April 2, 2024 correspondence (Parent Ex. C at pp. 1, 4). The parents largely repeated their concerns from the April 2, 2024 correspondence (compare Parent Ex. C at pp. 1-3 with Parent Ex. D at pp. 1-3), and indicated that the student would continue to attend MCC for the 2024-25 school year for all 52-weeks of the year (Parent Ex. C at p. 3). The parents also indicated that they would be seeking reimbursement and/or funding for: the student's tuition and costs at MCC; 15 hours per week of ABA services; two 45-minute sessions per week of speech-language therapy; two 45-minute sessions per week of OT; and two 45-minute sessions per week of PT (id.). The parents indicated that the letter was to serve as notice that they intended to provide the above services, and to hold the district financially responsible (id.).
By prior written notice dated June 25, 2024, the district informed the parents of the December 2023 CSE's recommendations in writing (Dist. Ex. 2 at pp. 1-5). By school location letter dated June 25, 2024, the district informed the parents of the student's assigned school site for the 2024-25 school year (id. at pp. 5-7).
By two emails dated July 25, 2024, the parents informed the district that they had visited the student's assigned school site on July 16, 2024, and expressed various concerns regarding the suitability of the school site in relation to the student's needs (Parent Ex. E at pp. 1-2). The parents also informed the district that, while they remained open-minded to discussing an appropriate district program and placement for the student, the student would be enrolled at MCC for the 2024-25 school year (id. at p. 2).[3]
By email dated August 19, 2024, the student's mother forwarded copies of the student's updated developmental pediatric report, and the student's updated neuropsychological evaluation report to the district, and she requested that the CSE review the reports and reconvene to discuss updating the student's IEP (Parent Ex. F).
The student attended MCC during the 2024-25 school year (Parent Exs. J; L; S). He also received "up to 15 hours" per week of supplemental ABA services, and supplemental OT, PT, and speech-language therapy (Parent Exs. EE ¶ 8; FF ¶¶ 11, 15; GG ¶ 11; HH ¶ 10).[4]
A. Amended Due Process Complaint Notice and Subsequent Events
In an amended due process complaint notice dated October 23, 2024, the parents, through counsel, alleged that the district failed to offer the student a FAPE for the 2024-25 school year (Parent Ex. A).[5] The parents contended that the December 2023 IEP was not reasonably calculated to provide the student a FAPE, that the district's proposed programing and placement were not reasonably calculated to confer meaningful educational benefits to the student, and that the recommendations would produce regression, and undermine the student's independence and self-sufficiency (id. at p. 3). The parents also alleged that the district failed to offer the student a FAPE because: it failed to conduct an appropriate functional behavioral assessment (FBA); failed to develop an appropriate behavior intervention plan (BIP); failed to obtain sufficient information prior to the December 2023 CSE meeting; failed to sufficiently individualize the IEP; engaged in various systemic failures to the detriment of the student and engaged in predetermination; failed to provide minutes of the CSE meeting to the parents; failed to reconvene the CSE to discuss the parents' concerns; failed to meaningfully communicate with the parents and the student's providers; failed to remediate any alleged deficiencies in response to the parents' 10-day notice; failed to recommend appropriate parent counseling and training; failed to offer an appropriate special class placement or 1:1 instruction; failed to offer appropriate related services; failed to develop appropriate annual goals and short-term objectives; unilaterally chose the student's assigned school sites without the parents' input, instead leaving the decision to an inadequately informed administrator; sent an untimely school location letter; and failed to provide consistency in programming and supports (id. at pp. 3-10). Additionally, the parents asserted that the district failed to conduct appropriate assessments, failed to consider appropriate evaluative data; failed to assess or consider what educational methodologies would have been appropriate; and failed to recommend a methodology that was appropriate (id. at pp. 8-10). The parents also contended that the two assigned school sites for the student were insufficient, that the December 2023 IEP was "unduly similar" to a prior IEP that was adjudicated as failing to offer a FAPE, and that the district "intentionally or negligently" concealed or failed to disclose information it had a duty to disclose (id. at pp. 10-12).
For relief, the parents sought reimbursement and/or funding for: tuition and costs at MCC, 15 hours per week of ABA services, two 45-minute sessions per week of speech-language therapy, two 45-minute sessions per week of OT, and two 45-minute sessions per week of PT (Parent Ex. A at p. 13). The parents notified the district that they would seek compensatory education services for any services that were not provided, including under pendency entitlements (id.). The parents also invoked pendency pursuant to a previous IHO decision dated January 18, 2024, which awarded of tuition and costs at MCC, 15 hours per week of individual ABA services, and two sessions per week of PT (id. at p. 2).
B. Impartial Hearing Officer Decision
An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed, and, after a prehearing conference on August 1, 2024 and two status conferences on August 28, 2024 and October 10, 2024 (Tr. pp. 1-26), the parties appeared before the IHO for an impartial hearing conducted on December 9, 2024 and January 27, 2025 (Dec. 9, 2024 Tr. pp. 1-71; Jan. 27, 2025 Tr. pp. 75-108).[6]
During the course of the proceedings, the district and the parents reached an agreement with respect to pendency (see Pendency Implementation Form). The agreement reflected that the student's pendency entitlement would be based on a prior unappealed IHO decision, which would result in the student receiving, for the 12-month school year, 15 hours per week of individual ABA services by a private provider, and two 45-minute sessions per month of PT by a private provider (id. at p. 1). The form was signed by a "[district] Reviewer" on January 15, 2025 (id.).
In a final decision dated March 18, 2025, the IHO found that the district failed to establish that it offered a FAPE to the student for the 2024-25 school year, as the hearing record did not contain all of the evaluative information that the December 2023 CSE considered, and contained inconsistencies, which left the IHO to speculate how aspects of the student's needs were addressed, and how the December 2023 CSE arrived at its recommendations (IHO Decision at pp. 1, 35-36). Despite this, the IHO did not find that the December 2023 CSE's failure to recommend an extended school day or home-based services contributed to the denial of a FAPE, as the IHO found that such services "went beyond what was necessary for the student to achieve appropriate progress" (id. at pp. 35-36). The IHO further found that, while the parents may have desired additional services for generalization and maximization, this was not necessary for the provision of a FAPE (id. at p. 36). Additionally, the IHO found that, "in the binary," the student's private program for the 2024-25 school year was appropriate, but that it "went beyond what was necessary for a FAPE," which would be more thoroughly discussed under equitable considerations (id. at pp. 36-37). The IHO found that the student's program utilized ABA methodology, which was consistent with the evaluative information for the student, and that the student's instruction at MCC included skills instruction, inclusion opportunities, and community-based instruction (id.). The IHO further found that, despite some inconsistent evidence of behavioral progress, the student was making progress in academics (id.). The IHO also found that there was some "limited . . . subjective" evidence of progress with the student's participation in home-based services (id.).
With regard to equitable considerations, the IHO found that, while the parents cooperated with the district and submitted a timely 10-day notice, they were not entitled to an award of funding for the student's unilaterally obtained home-based services because the hearing record did not establish that the parent had a financial obligation for any of the student's home-based services (IHO Decision at p. 37). The IHO further found that all of the student's home-based services "went beyond what would have been required" to offer a FAPE (id.). The IHO noted that the student was making appropriate progress with his related services at MCC during the school day, and that MCC's reports did not recommend that the student receive any supplemental services (id.). The IHO also noted that the student was receiving ABA services with individual instruction at MCC, as well as "a significant amount" of OT, speech-language therapy, parent counseling and training, social skills instruction, and community-based instruction for generalization (id.). The IHO found that the hearing record supported the conclusion that MCC was providing all of the services that were deemed necessary for the student (id.). The IHO also indicated that, while MCC did not offer PT, the student's gross motor skills and goals were being addressed by MCC's OT sessions (id.). The IHO found that the student's home-based ABA services were predominantly for the purpose of generalization, were not required for the student to make academic progress, and while they may have been helpful to maximize the student's potential, such maximization went beyond what was necessary for the provision of a FAPE (id.). The IHO found that funding could be awarded for the student's tuition, but as the home-based services were segregable from MCC's tuition, funding for any home-based services would not be awarded (id.). The IHO also found that while the student did not require 1:1 instruction this cost was not segregable from the general MCC tuition and therefore a reduction in tuition would not be imposed (id.).
The IHO found, in the alternative, even if funding for the home-based services was awarded, he would have reduced any funding on the basis of equitable considerations (IHO Decision at p. 37). The IHO found that it was inappropriate for two of the student's home-based providers to also be employees of MCC, as the providers indicated that the student's program at MCC was sufficient, while then simultaneously "denigrat[ed] the appropriateness and sufficiency of school-based services by saying the student require[d] more than [what he received in MCC], to their personal benefit" (id.). The IHO found that there was no limit to how much related services programming the student could have received in school, and it was unclear why, if the student required additional services, such services could not have been provided in the school setting (id.). The IHO also found that the home-based ABA services provided went beyond what the "ABA agency" recommended, which was the provision of services by a paraprofessional under the supervision of a board-certified behavior analyst (BCBA), rather than the provision of services by a BCBA "at substantially greater cost" (id.). The IHO additionally found that the "rate charged for services" was objectively excessive, as "nearly 70" percent of the providers' hourly rate went to unspecified indirect costs (id.). The IHO also found that much of the costs of the home-based services were covered by insurance without sufficient documentation in the hearing record (id.). Finally, the IHO found that there was nothing in the hearing record to support that the student required services beyond the 42-week extended school year (id.).
The IHO awarded the parents tuition reimbursement for the 2024-25 extended school year, which was to be remitted by the district upon receipt of invoices and proofs of payment, and which was not to exceed $188,300.00 (IHO Decision at p. 38).
IV. Appeal for State-Level Review
In an appeal from the IHO's decision, the parents contend that the IHO erred in denying their requests for reimbursement of the student's after-school services, which included his supplemental ABA home and community-based programing, supplemental speech-language therapy, PT, and supplemental OT.[7] The parents assert that the IHO's determinations that the district failed to establish that it offered a FAPE to the student for the 2024-25 school year, and that the student's unilateral placement at MCC combined with supplemental services was appropriate, should be affirmed. The parents contend that it was error for the IHO to nonetheless deny an award of funding for all of the student's after-school services, as the IHO erred in finding the provision of after-school supplemental services exceeded what would be required for the provision of a FAPE, and that the services only served to generalize skills beyond the student's academic goals. According to the parents, merely because the services may have gone beyond the student's academic goals, this was not a "proper basis to disqualify [them] from reimbursement." The parents argue that there were expert and professional opinions that the student required after-school services, and there was evidence in the hearing record that the student was making progress with the supplemental support. The parents further contend that the supplemental services, combined with the student's attendance at MCC, were appropriate to promote meaningful progress and avoid regression.
The parents also argue that the IHO impermissibly considered equitable factors outside of those under the Burlington/Carter framework in determining that the student's supplemental services would not appropriately be funded by the district. The parents assert that the IHO's finding that two of the student's providers were "double dipping" was "preposterous," as the two providers provided the home-based services "with the full knowledge and blessing of MCC." The parents also argue that the IHO's determination that there was no limit to the amount of hours of related service programming the student could receive at MCC was unsupported by the hearing record. The parents additionally contend that it was error for the IHO to find that home-based PT was not necessary, as the student's IEP goals provided for both OT and PT, and there was nothing in the hearing record to establish the equivalence between PT and OT. The parents argue that the IHO improperly concluded that some of the rates of the student's supplemental providers were too high, despite the district offering no evidence regarding this. Further, the parents allege that the IHO erred in finding that they failed to establish a contractual relationship between the parents and the student's providers, as part of the program was being funded through pendency, and while some of the invoices were not available at the time of the impartial hearing, the district should have had records of this. With their appeal, the parents provide additional evidence for consideration, and ask that the IHO's decision be modified to award full reimbursement for the entirety of the student's 2024-25 home-based ABA services, supplemental speech-language therapy, supplemental OT, and after-school PT. The parents ask, in the alternative, rather than denying the parents' requests for relief due to incomplete invoices, that the SRO craft an award predicated on the parents' submission to the district evidence of all payments the parents have made.
In a cross-appeal, the district contends that the parents did not meet their burden to establish that the student's home-based ABA services were appropriate. The district asserts that the home-based ABA supervisor testified that the student's home-based program included working on skills such as making the student's bed, brushing his teeth, toileting routines, and hand-washing routines. Additionally, the district contends that it is not required to maximize the potential of students with disabilities, and that "[t]he IDEA ensures an 'appropriate' education, not one that provides everything that might be thought desirable by loving parents." The district alleges that the parents fail to point to any evaluations in the hearing record, other than those prepared by individuals working at the agency that provides the student's home-based ABA services, that support the need for a home-based ABA program. The district also alleges that there is conflicting testimony and evidence as to whether the home-based ABA providers coordinated with the student's ABA program at MCC, particularly regarding the student's behavioral needs.
In an answer, the district asserts that the IHO correctly found that equitable considerations did not support an award of funding for the student's home-based services. The district contends that the home-based ABA services focused on daily living skills at home, which were not required for the student to make academic progress, and, as such, exceeded what the student required to receive a FAPE. The district also contends that the IHO correctly found that the requested speech-language therapy, OT, and PT services, in addition to the student's program at MCC, were excessive. Further, the district argues that the IHO correctly found that the student's gross motor needs were being met through OT, and that the student did not require supplemental PT. The district asserts that the IHO correctly found that the costs for the student's unilaterally obtained home-based services were excessive, as one of the parents testified that much of the cost of the services was covered by insurance, but the parents did not provide documentation showing how much they were reimbursed by their insurance carrier. With respect to the parents' claim that they were not required to show a financial obligation for the after-school services because those services were funded by pendency, the district asserts that the student's pendency program only included 15 hours per week of home-based ABA and two 45-minute sessions per week of home-based PT, and did not include speech-language therapy or OT. The district contends that there is no evidence in the hearing record of a contract between the parents and the student's after-school speech-language therapy and OT providers.
In an answer to the cross-appeal, the parents assert that the district's contentions regarding the appropriateness of the student's unilaterally obtained after-school services are misguided, because while the services addressed the student's ADL skills, that did not, without more, show that the services were for the purpose of maximizing and generalizing skills. The parents also contend that support for all aspects of the student's daily life are required, and that his needs were being addressed by the whole team of ABA providers. The parents assert that there were two clinical reports in the hearing record that discussed the student's need for after-school services, and that the home-based ABA provider and MCC were aligned on the student's interfering behaviors, despite perhaps using different terminology. The parents also make additional arguments in support of their contention that equitable considerations favor an award of relief to the parents.[8]
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[9]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
A. Preliminary Matters
As an initial matter, neither party has appealed from the IHO's finding that the district failed to establish that it offered the student a FAPE for the 2024-25 school year. Therefore, this finding is 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]).
The parents also offer additional evidence for consideration on appeal. Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; Landsman v. Banks, 2024 WL 3605970, at *3 [S.D.N.Y. July 31, 2024] [finding a plaintiff's "inexplicable failure to submit this evidence during the IHO hearing barred her from taking another bite at the apple"]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]). Here, the parents have offered a copy of the prior unappealed IHO decision which the parties agreed set forth the student's pendency program (Parent's Ex. 1 [hereinafter "SRO Exhibit 1 or SRO Ex. 1]; see Pendency Implementation Form). The pendency implementation form indicates that the IHO decision on which it was based reflected that the student would receive two 45-minute sessions "per month" of PT (see Pendency Implementation Form). However the reference to monthly as opposed to weekly PT sessions appears to be an error on the form as both the district, in its answer and cross-appeal and the parent, in the request for review, have continued to assert that the student's pendency placement consisted of two 45-minute sessions "per week" of PT (Req. for Rev. ⁋ 2; Answer and Cross-Appeal ⁋ 11), and the pendency implementation form itself indicates that pendency is based on the prior unappealed IHO decision, which called for weekly PT sessions (Pendency Implementation Form; SRO Ex. 1 at p. 11). Therefore, while this decision may have been offered at the time of the impartial hearing, I find it necessary to render a decision as to the student's pendency placement and, as a matter within my discretion, I will consider the document. The parents also offer additional invoices for the student's after-school services, as well as an explanation of insurance benefits, for consideration. But many of the invoices offered for the first time on appeal were dated prior to the initial December 9, 2024 impartial hearing date, and could have been offered at the time of the impartial hearing and these documents are not necessary to render a decision, and therefore will not be considered.
B. Unilateral Placement
Turning to the district's contention on cross-appeal that the IHO improperly found that the parents established that the home-based ABA services were appropriate, 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).
Initially, I note that the district is not appealing from the IHO's findings that the student's unilateral placement at MCC, and his supplemental speech-language therapy, OT, and PT services were appropriate. Accordingly, these findings 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]). Rather, the district contends that the IHO should have found that the parents failed to establish that the student's home-based ABA services, alone, were not appropriate.[10] The district's contention in the cross-appeal is legally flawed—as the Second Circuit has made clear, it is not appropriate for an IHO to "conduct[] reimbursement calculations in [the] appropriateness analysis"; rather, "[t]he first two prongs of the [Burlington/Carter] test generally constitute a binary inquiry that determines whether or not relief is warranted, while the third enables a court to determine the appropriate amount of reimbursement, if any" (see A.P. v. New York City Dep't of Educ., 2024 WL 763386 at *2 [2d Cir. Feb. 26, 2024] [holding that the IHO should have determined only whether the unilateral placement was appropriate or not rather than holding that the parent was entitled to recover 3/8ths of the tuition costs because three hours of instruction were provided in an eight hours day]). When the district attempts to redefine the boundaries of "appropriate" and "inappropriate" in a manner contrary to governing legal standards, it is not the undersigned's role to thereafter reconstruct or supply alternative arguments the district might have made. The IHO correctly acknowledged in her findings that the parents' burden was to establish, in the totality of the circumstances, that the unilateral placement (inclusive of the private school and all services) was appropriate, and that this inquiry was a binary one (see IHO Decision at pp. 36-37). Additionally, while the district couches its arguments against funding for the student's home-based ABA services in terms of the "appropriateness" of his services, the arguments do not actually focus on whether the services provided the student were specially designed to meet his needs or provided him with educational benefits, but instead are based largely on the premise that the services, regardless of whether they were appropriate to address the student's deficits, went beyond what was needed for the provision of a FAPE to the student. That is a different inquiry altogether. In substance, the district’s purported challenge to the "appropriateness" of the private home-based ABA services is a cloaked attack on equitable considerations, repackaging equitable objections as programmatic defects to evade addressing the issue under the governing legal standard as set forth by the Second Circuit. Under these circumstances I will not further address the contentions that the home-based ABA services were inappropriate for the student.
C. Equitable Considerations:
Moving to equitable considerations for the parents' requests for relief related to the student's supplemental services, the final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).
1. Financial Obligation
Initially, I turn to the IHO's determinations, and the parties contentions related to, whether the parents established a financial obligation for the student's supplemental services. In Burlington, the Court stated that "[p]arents who unilaterally withdraw their child from the public school and thereafter seek tuition reimbursement for the[ir] child's private placement do so at their own peril," because they bear the financial risk, both as to tuition and legal expense, and the burden of demonstrating the appropriateness of their relief (471 U.S. at 373-74). Congress thereafter took action to emphasize the need for parents to be invested in the process of developing a public school placement for eligible students with disabilities by placing limitations on private school reimbursements under the IDEA (20 U.S.C. § 1412[a][10][iii]). The statute "textually presupposes that the parents had incurred those costs" [Moonsammy v. Banks, 2024 WL 4277521, at *7 [S.D.N.Y. Sept. 23, 2024]). This statutory construct is a significant deterrent to false or speculative claims (see Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 543 [2007] [Scalia, J., dissenting] [noting that "actions seeking reimbursement are less likely to be frivolous, since not many parents will be willing to lay out the money for private education without some solid reason to believe the FAPE was inadequate"]).
When the element of financial risk is removed entirely and the financial risk is borne entirely by unregulated private schools or agencies that have indirectly entered the fray in a very palpable way in anticipation of obtaining direct funding from the district, it has practical effects because parents begin seeking the best private placements possible with little consideration given to what the child needs for an appropriate placement as opposed to "everything that might be thought desirable by 'loving parents.'" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]). As the First Circuit Court of Appeals noted, "[t]his financial risk is a sufficient deterrent to a hasty or ill-considered transfer" to private schooling without the consent of the school district (Town of Burlington v. Dep't of Educ. for Com. of Mass., 736 F.2d 773, 798 [1st Cir. 1984], aff'd, Burlington, 471 U.S. 359, 374 [1985] [noting the parents' risk when seeking reimbursement]; see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247[2009] [citing criteria for tuition reimbursement, as well as the requirement of parents' financial risk, as factors that keep "the incidence of private-school placement at public expense . . . quite small"]). Further, proof of an actual financial risk being taken by parents tends to support a view that the costs of the contracted for program are reasonable, at least absent contrary evidence in the hearing record.
Regarding proof of financial risk, parents must come forward with evidence of their financial obligation and may not seek funding based on "nothing more than their say-so" (Moonsammy v. Banks [Moonsammy II], 2025 WL 733254, at *8 [S.D.N.Y. Mar. 7, 2025]). The Second Circuit has held that some blanks that the parties did not fill in in a written agreement would not render an entire contract void and indicated that in the case before it that "the contract's essential terms—namely, the educational services to be provided and the amount of tuition—were plainly set out in the written agreement, and we cannot agree that the contract, read as a whole, is so vague or indefinite as to make it unenforceable as a matter of law" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 458 [2d Cir. 2014]). In New York, a party may agree to be bound to a contract even where a material term is left open but "there must be sufficient evidence that both parties intended that arrangement" and an objective means for supplying the missing terms (Express Indus. & Terminal Corp. v. N.Y. State Dep't of Transp., 93 N.Y.2d 584, 590 [1999]; 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91 [1991]).
Here, the IHO found that the evidence in the hearing record did not establish that the parents had a financial obligation with respect to any of the student's supplemental services (IHO Decision at pp. 15-16, 37). The parents allege on appeal that "as the parent explained," not all of the invoices for the student's services were available at the time of the impartial hearing (Req. for Rev. ⁋ 20, citing Parent Ex. II ⁋ 54 and Dec. 9, 2024 Tr. p. 65). Upon review of the portions of the hearing record cited by the parent, the evidence does not sufficiently explain why documentation regarding their financial obligations to the student's supplemental related service providers was not made available at the hearing. Paragraph 54 of the mother's testimonial affidavit merely explains that medical insurance covered the cost of the student's supplemental OT, PT, and speech-language therapy after a deductible and out-of-pocket maximum was paid, and the cited transcript page does not discuss the funding of the student's services whatsoever (see Parent Ex. II ⁋ 54; Dec. 9, 2024 Tr. p. 65). The parent testified about not being able to provide documentation with respect to the student's home-based ABA services at that time, but she indicated that she had documentation she could provide for all of the student's remaining services (Jan. 27, 2025 Tr. pp. 94-95).[11] However, as the IHO noted, no such documentation was provided, and no explanation was provided regarding why such documentation was not offered. Thus, the hearing record supports the conclusion that the parents did not establish a financial obligation with respect to the student's supplemental related services, at least with respect to the student's speech-language therapy, OT, and PT.
However, the parents also contend that the IHO's findings regarding financial obligations were error because the student's services were "at least in part" being funded as pendency.[12] Indeed, as the district concedes, the parties agreed that the student's pendency placement, which ran for the entire 12-month school year, was based on a prior unappealed IHO decision, which provided the student with 15 hours per week of individual ABA services at a rate not to exceed $300 per hour, by a provider selected by the parents, as well as two sessions per week of PT at a rate not to exceed $195 per hour by a provider selected by the parents (Parent Ex. B at p. 1; Pendency Implementation Form; SRO Ex. 1 at p. 11). Therefore, with respect to the student's supplemental ABA and PT services, the parents were not necessarily required in this instance to separately show a financial obligation for the period of time when the district was required to fund the services pursuant to pendency (see Application of a Student with a Disability, Appeal No. 22-164; Application of a Student with a Disability, Appeal No. 22-177; Application of a Student with a Disability, Appeal No. 21-245; Application of a Student with a Disability, Appeal No. 20-042). Indeed, from the date of the parents' original due process complaint notice, July 1, 2024 (see Parent Ex. B at p.1), through the date of this decision—which encompasses the entirety of the 2024-25 school year—the district was obligated to fund the student's supplemental ABA services and PT pursuant to stay-put, funding to which the evidence shows that the district agreed to (Pendency Implementation Form).[13]
However, as the parents failed to establish that they had a financial obligation with respect to the student's supplemental speech-language therapy and OT, I agree with the IHO's findings in that regard, and find no basis to disturb them.
2. Excessive Services
Since the district's contention that the parents failed to establish any financial obligation with respect to the student's supplemental ABA services and PT has been rejected, I next address the district's argument that the services were excessive in the sense that they went beyond what the school district would have been required to fund to provide the student with a FAPE, which in this case turns on whether the ABA services were used for the maximization and/or generalization of skills, and whether the IHO properly found that limiting relief to the programming provided by MCC was appropriate.
Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]). An IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100). More specifically, while parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). Accordingly, while a parent should not be denied reimbursement for an appropriate program due to the fact that the program provides benefits in addition to those required for the student to receive educational benefits, a reduction from full reimbursement may be considered where a unilateral placement provides services beyond those required to address a student's educational needs (L.K., 674 Fed. App'x at 101; see C.B. v. Garden Grove Unified Sch. Dist., 635 F. 3d 1155, 1160 [9th Cir. 2011] [indicating that "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced"]; Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 [5th Cir. 1986] ["The Burlington rule is not so narrow as to permit reimbursement only when the [unilateral] placement chosen by the parent is found to be the exact proper placement required under the Act. Conversely, when [the student] was at the [unilateral placement], he may have received more 'benefit' than the EAHCA [the predecessor statute to the IDEA] requires"]).
Specific to the supplemental PT and ABA services, the parents contend on appeal that the IHO erred in finding that they were excessive and that the ABA services were designed solely for generalization and maximization. The parents also contend that it was error for the IHO to find that the student's OT at MCC addressed the student's PT needs. The district asserts that the student's home-based ABA services were for the purpose of maximization and generalization, and were excessive, and therefore lacked an appropriate basis for relief. The district also contends that the student's after-school PT was excessive, and that, while MCC did not offer PT, the IHO correctly found that the student's gross motor needs were being met through OT at MCC.
Regarding PT, I do not find that the evidence in the hearing record supports the district's assertions or the IHO's findings that the student's after-school PT was excessive or went beyond what was necessary to provide a FAPE. Initially, review of the student's December 2023 IEP shows the CSE recommended that the student receive two 30-minute sessions per week of individual PT due to difficulties with his gross motor skills, body awareness, and motor control, and developed annual goals to improve his ability to navigate through obstacles in his environment using balance, jumping, and climbing skills, and imitate weight bearing poses (Dist. Ex. 1 at pp. 17, 24, 43). As part of the student's unilateral programing and generally consistent with the district's recommendation, the parents obtained two 45-minute sessions per week of individual after-school PT (Parent Exs. V at p. 1; II ⁋53). Additionally, as discussed above, the district and the parents agreed that the student's pendency placement included two 45-minute sessions per week of PT, which is exactly what the parents continued to obtain.
As for the IHO's finding that the student's MCC OT services met his gross motor needs, review of the 2024-25 MCC OT goals reflected that therapy addressed four main areas (sensory processing, activities of daily living and self-care, gross motor coordination, and fine motor and visual perceptual skills), with three goals per area (Parent Ex. Q). Specific to gross motor skills, the MCC OT annual goal was for the student "[t]o improve bilateral coordination skills for greater success with integrating both sides of the body with fine motor, visual motor, and gross motor tasks in the home and classroom" (id. at p. 1). Three goals within that area addressed the student's need to demonstrate improved; balance and motor planning while completing a variety of movements, eye-hand coordination for catching a ball, and bilateral coordination and body control to "perform [five] different animal walks" (id. at p. 2). Review of the student's after-school PT progress report shows that the student worked on improving; lower extremity strength and quality of hip and knee flexion for jumping; static and dynamic balance; ankle range of motion; and bilateral coordination including ball skills for throwing, catching, and kicking (Parent Ex. V at p. 1). The PT progress report reflected five goals, designed to improve the student's; motor planning, gross motor and coordination skills for jumping; motor planning and object manipulation skills for throwing and kicking a ball; postural and lower extremity strength for safely managing environments by demonstrating improved balance; stair negotiation skills; and ankle range of motion (id. at p. 2). The private physical therapist recommended that the student continue receiving PT to address his quality of movement, low endurance, overall weakness especially in his core and hip girdle, significant decreased bilateral dorsiflexion, and difficulty with bilateral coordination, which was further evidence of the student's need to continue receiving after-school PT (Parent Ex. V at p. 1). While review of the MCC OT goals and after-school PT progress report shows some overlap in the gross motor skills addressed, the MCC OT services addressed multiple other areas of the student's needs such that it was not clear to what extent the gross motor goals were targeted, and the after-school PT addressed some areas of the student's needs that MCC did not (compare Parent Ex. Q, with Parent Ex. V). Moreover, while a parent is not required to obtain every related service that might prove beneficial to a student in order to demonstrate the appropriateness of a unilateral placement (see Frank G., 459 F.3d at 364-65), where, as here, they obtain services also recommended in the IEP by the district to address the student's needs, the undersigned is hard pressed to conclude, as the district now asserts, that such services so significantly exceeded what would be required for the district to offer FAPE to the student that they should be denied as excessive. Accordingly, while the IHO was correct to examine whether there was unwarranted overlap between the OT provided to the student and the PT services sought by the parent, the evidence in the hearing record in this case does not bear out the IHO's finding that that his after-school PT which addressed stair negotiation, ankle range of motion and postural and lower extremity strength was excessive just because some other gross motor needs were also being addressed by the OT at MCC. Instead, the evidence tends to show that there was interdisciplinary agreement on the fundamental areas to support the student's motor development, but the fact that some those of those needs were addressed outside of the MCC setting does not automatically render one of the services so unnecessary as to be excessive.
Next, with regard to the student's home-based ABA services, the IHO found that this service was excessive, that it was predominantly for the purpose of generalization, that it went beyond what was required to offer a FAPE to the student, and that it was used to maximize the student's potential. Review of the evidence in the hearing record; however, does not lead to this conclusion.
A comparison of the student's ABA programs both at MCC and at home is informative in this regard. While there was some overlap between the two programs' targeted skills and annual goals, the focus of the home-based ABA program was not generalization or maximization of skills (compare Parent Ex. P with Parent Ex. X).
The student's 2024-25 MCC classroom goals indicated that they were "designed to be implemented at the [MCC] under the supervision of a [BCBA]" and encompassed six general areas: academic literacy/pre-academic, verbal behavior, self-management, community of reinforcer, social skills, and behavior (Parent Ex. P). In the area of academic skills, MCC developed annual goals and short-term objectives to improve the student's reading comprehension, written communication, and mathematics skills (id. at p. 1). Regarding verbal behavior, the student's annual goals were to expand his speaker repertoire using vocal-verbal behavior and/or augmentative and alternative communication (AAC), and expand his listener repertoire (id. at p. 2). In the area of self-management MCC developed goals for the student to increase his independence with ADLs and independence with toileting, and improve his safety skills within the community (id. at pp. 2-3). The MCC community of reinforcer goal was designed to improve the student's independent leisure skills, and his behavior goal focused on improving his use of "appropriate classroom behaviors" (id. at pp. 3, 4). MCC social skills goals developed for the student were to expand his skills with peers and adults, and increase participation during group instruction when provided with 1:1 instruction (id.).
The clinical supervisor for the home-based ABA program (BCBA) testified that the student received ABA services from herself and two other providers "seven days a week"; after-school during the week, and "typically in the mornings" on the weekends for approximately 16 hours per week (Jan. 27, 2025 Tr. pp. 77-79; Parent Ex. FF ¶ 2). A September 2024 progress report and treatment plan update (treatment plan) completed by the home-based BCBA identified the student's deficits in language/communication, social skills, and restrictive/repetitive behaviors, and reported the results of a February 2024 reassessment administration of the Verbal Behavior Milestone Assessment and Placement Program (VB-MAPP) (Parent Ex. X at pp. 1, 3).[14] According to the treatment plan, the goals that were identified and "currently being targeted" as of September 2024 included to improve the student's mand (requesting), tact (describing), listening, written communication, play, social, behavior, intraverbal, and language skills (id. at pp. 5-10).
A comparison of the goals from each of the ABA programs shows that both the home-based and MCC programs addressed similar general areas of need (compare Parent Ex. P at pp. 1-4 with Parent Ex. X at pp. 6-10). For instance, both of the programs targeted skills such as toothbrushing, following directions, requesting items, sequencing events from a story, engaging in play with peers and leisure activities, and responding to "wh" questions (compare Parent Ex. P at pp. 2-4, with Parent Ex. X at pp. 6-10). However, the programs also focused on a variety of dissimilar goals, for instance the school-based program at MCC targeted identifying key elements in a story, writing with correct capitalization and letter formation, demonstrating mathematics skills, tying shoes, following directions in the community, reciprocating greetings, raising his hand and answering questions during group instruction, and demonstrating appropriate classroom behaviors (Parent Ex. P). In contrast, the home-based program targeted skills such as using scissors, describing items using four or more words, responding vocally to questions, performing actions with objects, and completing ADL activities such as making his bed, brushing his hair, selecting clothing, and getting dressed (see Parent Ex. X at pp. 6-10).
Regarding the student's behavior needs, in September 2024 MCC conducted an FBA and developed a BIP to address behaviors that were interfering with classroom and group participation, including flopping, throwing/swiping, and aggression (Parent Ex. S). The rationale for the FBA indicated that the student's behaviors were disruptive to his learning and that of his peers, and impede progress towards their goals (id. at p. 2). Additionally, the FBA indicated that the student could be "[d]angerous to others," specifically noting that while his aggression was not "typically emitted at high intensity," it was inherently dangerous to those working with the student (id.). The student's 2024-25 classroom behavior goals were to use functional communication in the absence of flopping and aggression, and follow through on directions and demands in the absence of throwing/swiping (Parent Ex. P at p. 4).
In contrast, the home-based ABA program also emphasized behavioral protocols to address problem behaviors; however, an FBA had not been completed because the student's "maladaptive behaviors were not reported as severe" at that time (Parent Ex. X at p. 12). The report indicated that "[l]east intrusive general behavior management techniques [would] continue to be implemented to address problem behavior" (id.). The home-based BCBA testified that the student did not require "a formal behavior plan," and instead they used specific responses or "protocols" to address specific behaviors (Jan. 27, 2025 Tr. pp. 82-83). According to the home-based BCBA, the student's "problem behaviors" addressed at home included screaming as a means to obtain specific reinforcers, mild tantrum, and escape behaviors (Parent Ex. FF ¶ 19).
Although, as indicated above, there was some overlap in the student's areas of need addressed by the school-based and home-based ABA services it does not appear that the home-based ABA services were used exclusively or even primarily for generalization or maximization, nor does it appear that these home-based services were excessive. The BCBA testified that even though the student had made progress over the years, he continued to require 1:1 ABA services using various techniques such as prompting/prompt fading, shaping, correction procedures, positive and negative reinforcement, differential reinforcement, pairing procedures, task analysis, chaining procedures, stimulus discrimination training, extinction, discrete trial instruction, and natural environment teaching, and noted that these techniques were implemented into his ABA instruction "as they [we]re necessary for the acquisition of new skills as well as the carry-over and reinforcement of learned skills" (Parent Ex. FF ¶ 20). To be sure, some of these points such as carry over and reinforcement of skills learned fall into the generalization arena. For example, she further opined that learning in both the home environment and MCC was critical, and that ABA instruction at home ensured that "the skills [the student was] learning in school [we]re actually learned but also provide[d] him with opportunities to learn skills that extend[ed] beyond those taught at school" (id. ¶ 30). Additionally, the BCBA explained that the student required opportunities to learn and practice skills; that providing continuous, consistent reinforcement and behavior expectations across both environments was vital, and ensured that progress from MCC was not lost without reinforcement at home, and progress from home was not lost without reinforcement at MCC (id.).
However, the evidence extended beyond these kind of carry over and reinforcement points. The BCBA further stated that the student had only made gains with teaching in highly structured, 1:1 settings with continuous high rates of reinforcement and repetition of tasks (Parent Ex. FF ¶ 36). She also indicated that because of the 1:1 instruction and the application of principles and tactics used in ABA instruction, the student has made progress (id.). Additionally, the BCBA further opined that without the 1:1 ABA instruction at MCC together with home-based ABA services, the student would not make meaningful progress, and that he would quite likely regress (see id. ¶¶ 29, 37). The BCBA opined that the home-based ABA services related to the student's ability to make progress in school because of his deficits and barriers to learning, specifically noting that he lacked spontaneous functional communication, exhibited a lot of disruptive, repetitive behaviors that required constant redirection, and lacked interest in social interactions (Jan. 27, 2025 Tr. p. 91). She explained that by reducing interfering behaviors, appropriate social behaviors would increase (Jan. 27, 2025 Tr. p. 91). The BCBA indicated that when the student was not working on these skills at home, for example during a break in session, the behaviors stagnated or the student regressed both at home and in school (Jan 27, 2025 Tr. pp. 91-92). She further opined that "for [the student] to continue to make progress, continue to learn, and continue to reduce those behaviors . . . we have to have the services in home. That's the way that he learns in both of these environments." (Jan. 27, 2025 Tr. p. 92).
The executive director of education at MCC testified that the student's MCC team and the "home-based team" collaborated through email, phone calls, and "[Z]oom meetings" throughout the year, which entailed "discussions of progress, balancing goals that needed to be addressed at school, home and within his home community, as well as teaching [the student] to combine the skills that we ha[d] collectively been teaching him for functional application within the home and community" (Parent Ex. DD ¶¶ 1, 50).
Additionally, the clinicians who completed the July 2024 neuropsychological and speech-language evaluation determined that the student "continue[d] to require placement in a special education school that provide[d] instruction grounded in ABA principles" in a 1:1 student to teacher ratio, such as MCC (Parent Ex. F at p. 13; see Parent Ex. DD ¶ 11). The clinicians also recommended that the student receive 15-20 hours of home-based ABA services per week, "to address the severity of his deficits and to promote progress at school" (id. at p. 14). According to the clinicians, it was important that the school and home-based providers "communicate regularly and collaborate to ensure that everyone [wa]s aligned in their goals and instructional/treatment methods, as th[at would] be paramount for supporting [the student's] overall growth and development" (id.).
The district raises two lines of attack to support the argument that the services were unnecessary. First, the district argues that there is no evaluation by anyone other than the home-based ABA provider which indicates that the student needed the services. However, the problem with this contention is that it is contradicted by the evidence insofar as the parent produced such an evaluation (Parent Ex. F at pp. 9, 14).
The district's second assertion is that the lack of a BIP for the student during the 2024–25 school year in the home environment was incongruent with MCC's determination that he required a BIP at school. But this argument too is unpersuasive because it ignores long-established principles that environment is a key determinant that often relates to a student's interfering behavior and that the two settings may well be materially different in the student's experiences. While federal law does not define an FBA, state regulation does, and it requires determining "why a student engages in behaviors that impede learning and how those behaviors relate to the environment" (see 8 NYCRR 200.1[r]). Courts have at times explained that delaying an FBA until a child begins in the recommended educational environment is not a serious procedural violation constituting a denial of FAPE (Cabouli v. Chappaqua Cent. Sch. Dist., 202 Fed.Appx. 519, 522 [2d Cir. 2006]; Bd. of Educ. of Wappingers Cent. Sch. Dist. v. M.N. on Behalf of J.N., 2017 WL 4641219, at *11 [S.D.N.Y. Oct. 13, 2017]; M.N. v. Katonah-Lewisboro Sch. Dist., 2016 WL 4939559, at *15 n.24 [S.D.N.Y. Sept. 14, 2016]; J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, at *13 [S.D.N.Y. Aug. 5, 2013]), and that deferring an FBA until the school year begins or until a child acclimatizes to a new location likewise does not deny FAPE, as in S.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523, at *9 [S.D.N.Y. Dec. 8, 2011]). Accordingly, the district's argument fails because it does not follow that a student who requires a BIP in one setting necessarily needs the same BIP in a different environment: the need for BIPs—which are determined on the basis of FBAs—are grounded in part in the student's environment, and interfering behaviors can, and often do, manifest differently when settings change, warranting an environment-informed assessment of how to address the student's needs when it comes to the issue of behaviors. Thus, I am not persuaded by the district's contention about how the student presents in different environments as a basis to conclude that the home-based ABA was excessive.
Based on the foregoing evidence and testimony in the hearing record, there is not enough evidence to lead me to the conclusion that the student's home-based ABA services were primarily used for maximization or generalization, and the hearing record does not establish that both the home-based ABA services significantly exceeded the level of services that the student required to receive a FAPE for the 2024-25 school year. As previously discussed, the district had recommended PT for the student and, with respect to the ABA services, while the district may not have been required to recommend home-based ABA in the first instance in order to offer the student a FAPE, an area of inquiry not reached by this decision, the evidence in the hearing record does not support a finding that the ABA services obtained, which were found appropriate as part of the totality of the circumstances of the student's overall unilateral program, went so far beyond what would be required to address his needs for the purposes of FAPE, that funding for it should be reduced or denied based on equitable considerations. However, I emphasize that I do not find that the student's services outside of the MCC setting were the only means through which the district could have offered a FAPE; rather, I find that the ABA and PT services were not so excessive as to exceed the level of services the district would be obligated to provide to remedy its failure to offer the student a FAPE.
Finally, to the extent the IHO's decision determined in the alternative that a reduction in the rates for the student's supplemental PT and ABA services would have been warranted, any such discussion is ultimately academic. While the IHO in this proceeding could have articulated a rationale for a theoretical reduction in rates,[15], [16] since there is a dearth of evidence on this topic, that inquiry is beside the point in this matter. The student's pendency placement governs during the proceedings, and the unappealed IHO order dated January 18, 2024—which formed the basis of the student's pendency placement—expressly established the applicable rates for these services. It does not appear that IHO nor the parties were at liberty to revisit or reduce those rates under equitable considerations and they must be paid at those rates for the duration of these proceedings. Accordingly, any analysis concerning the sufficiency of the hearing record as to reasonable or market rates does not provide a basis to disturb the funding levels already fixed by pendency for the duration of the 2024-2025 school year.
VII. Conclusion
In summary, my independent review of the hearing record reveals that there are no equitable considerations that would warrant a reduction or denial of the relief sought by the parents with respect to the student's supplemental ABA services and PT. Therefore, the IHO erred in denying relief with respect to the student's supplemental ABA services and PT. However, I do not find a sufficient basis to overturn the IHO's findings with respect to the financial obligations of the parents related to the home-based speech-language therapy and OT.
I have considered the parties' remaining contentions and find the necessary inquiry at an end.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the IHO's decision dated March 18, 2025 is modified by reversing those portions that denied or alternatively reduced the parent's claims for equitable relief related to the student's home-based ABA service and PT for the 2024-25 extended school year; and
IT IS FURTHER ORDERED that the district shall fund the costs of the student's 15 hours per week of individual home-based ABA service pursuant to pendency at a rate not to exceed $300 per hour, and two 45-minute sessions per week of home-based PT, upon the parents' submission of proof of delivery of services to the student.
Dated:
Albany, New York
June 26, 2026
Justyn P. Bates
STATE REVIEW OFFICER
Footnotes
[1] The student's eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[2] MCC has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[3] This correspondence was sent after the filing of the original due process complaint notice in this matter, dated July 1, 2024 (see Parent Ex. B). As will be discussed later, the due process complaint notice was amended.
[4] The parties and the IHO refer to the student's privately-obtained services delivered apart from MCC as "home-based," "supplemental," and "after-school" interchangeably. During the 2024-25 school year, the student received home-based ABA services, OT, and speech-language therapy, while PT services were delivered in a "private sensory gym" (Dec. 9, 2024 Tr. p. 31; Parent Exs. EE ¶ 8; FF ¶¶ 11, 15; GG ¶ 11; HH ¶ 10).
[5] The parents previously filed a due process complaint notice dated July 1, 2024, and the amended due process complaint notice indicated that the amendment was made to "add claims relating to a second school location letter the [p]arents received" (Parent Exs. A at p. 1; B). In a due process response dated July 9, 2024, the district denied the material allegations contained in the initial due process complaint notice, asserted certain affirmative defenses, and attached a copy of the prior written notice dated June 25, 2024, as well as a copy of the June 25, 2024 school location letter (see Due Process Resp. at pp. 1-14).
[6] While the first three transcripts in the hearing record covering preliminary matters are consecutively paginated (see Tr. pp. 1-26), page numbering was restarted again at page one of the transcript for the fourth date, which was the beginning of the evidentiary phase of the impartial hearing (see Dec. 9, 2024 Tr. pp. 1-71). Therefore, the final two transcripts, consisting of the December 9, 2024 and January 27, 2025 appearances for the impartial hearing, will include their dates when cited.
[7] As previously noted, the parties and the IHO refer to the privately-obtained services delivered apart from MCC as "home-based," "supplemental," and "after-school" interchangeably.
[8] For the first time, the parents also assert additional IHO findings that should be reversed and new relief on the first page of their answer to the district's cross-appeal that they failed to raise in their request for review, namely that the IHO's decision be reversed "insofar as it denied the parent's [sic] request for reimbursement for . . . privately procured neuropsychological evaluation" (Answer to Cross-Appeal at p. 1; see Req. for Rev. at pp. 1, 9). This challenge to the IHO's decision was not raised on appeal by the parents in their request for review, and I note that it was not even asserted as a request for relief, or proposed relief, in the parents' amended due process complaint notice, which calls into question the parents' characterization of the matter as an error on the part of the IHO (Parent Ex. A at p. 13; see generally Req. for Rev.). The parents' request was not raised in compliance with the practice regulations in Part 279 and this belated attempt to add new issues to the proceeding will not be addressed when identified for the first time on appeal in their answer to a cross-appeal.
[9] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[10] When assessing a unilateral placement, a parent may obtain outside services for a student in addition to a private school placement as part of a unilateral placement (see C.L., 744 F.3d at 838-39 [finding the unilateral placement appropriate because, among other reasons, parents need not show that a "'private placement furnishes every special service necessary'" and the parents had privately secured the required related services that the unilateral placement did not provide], quoting Frank G., 459 F.3d at 365).
[11] The problem in this case is an evidentiary one, not a legal one. Federal regulations are clear that before a district uses parental insurance to fund, in whole or in part, the services it provides, parental consent is required first (34 CFR 300.154[e]). But that is not what occurred. In this case, the parents rejected the public programming and unilaterally placed the student and used the insurance themselves. Under these circumstances, Federal IDEA case law permits insurance coverage to offset a district's reimbursement obligation only when the parents' use of insurance resulted in no financial cost or reduction in policy benefits—but where insurance payments diminish the parents' lifetime coverage, those costs remain fully reimbursable by the district as part of its FAPE obligation (Richardson Independent School Dist. v. Michael Z., 561 F.Supp.2d 589, 608-09 [N.D. Texas 2007]; Seals v. Loftis, 614 F.Supp. 302, 305-06 [E.D. Tennessee 1985]). If, however, the insurance payment caused no reduction in benefits and the parents suffered no out-of-pocket cost, the district's obligation may be offset or the parents may be required to account for those proceeds to avoid a double recovery (Raymond S. v. Ramirez, 918 F.Supp. 1280, 1295-97 [N.D. Iowa 1996]; Brown v. Wilson Cnty. Sch. Bd., 747 F. Supp. 436, 445 [M.D. Tenn. 1990]). But where parents have acted unilaterally, as in this case, it is up to the parent to provide the evidence showing the out-of-pocket costs not covered by insurance or the diminution of lifetime insurance benefits during the impartial hearing, and the parent did not do so before the IHO in this case (Educ. Law § 4404[1][c]).
[12] The parents have continually alleged that the IHO signed a pendency order in this matter, while citing to page three of the IHO's decision. But that is a mischaracterization. The IHO observed that parties settled the issue of pendency themselves citing a implementation form which established pendency by agreement of the parties (IHO Decision at p. 3; Pendency Implementation Form).
[13] There was purportedly an increase in rate for the PT services to $210 per session after October 1, 2024 (Parent Ex. EE at p. 2), but there is no evidence of a financial obligation on the part of the parent for this increase. Accordingly, the PT services must be funded by the district as describe below.
[14] Additionally, the treatment plan reflected progress that the student had made toward "treatment plan goals from the previous authorization period" (Parent Ex. X at pp. 5-10).
[15] Additionally, to the extent that the IHO found that two of the student's home-based providers engaged in "double-dipping," I note that what the IHO described was not double dipping as it is colloquially understood (IHO Decision at p. 37). Rather, double dipping generally describes situations where a charge is administered twice for the same service whereas the IHO was concerned that there was some overlap between the individuals who acted as providers for the student at school and the student's home-based providers.
[16] Among the factors that may warrant a reduction in tuition based on equitable considerations is whether the frequency of the services or the cost for the services was excessive (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d. Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K., 674 Fed. App'x at 101; E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]).
An excessive cost argument focuses on whether the rate charged for a service was reasonable and requires, at a minimum, evidence of not only the rate charged by the unilateral placement, but evidence of reasonable market rates for the same or similar services.